Newsitem
2021-06-09
EELC Law Review 2020: Fundamental rights: from the right to strike to freedom of expression
Filip Dorssemont[1]
Although the Court of Justice of the European Union (CJEU) does not have an uncontested record in upholding the right to collective action ever since the (in)famous judgments in Viking and Laval of 2007, its General Court issued a judgment on 29 January 2020 in an annulment procedure which will be applauded by the trade unions. In Aquino and Others – v – European Parliament, it annulled an order to requisition a number of interpreters after a strike notice was issued by a trade union in the EU civil service (Inter-Trade Union Committee).[2] The existence of a right to strike of EU civil servants can hardly be challenged since the entry into force of the Charter of Fundamental Rights of the European Union (CFREU) (due to the Lisbon Treaty). Contrary to other human rights instruments such as Article 6 of the European Social Charter, no specific exemption was provided for the public administration in Article 28 of the CFREU. The European Parliament did not even dare to contest the existence of such a right.
The CFREU does not at all ensure that Member States have to recognise a right to strike in their domestic legal order. The provisions of the Charter are primarily adressed to EU institutions (Article 51 of the Treaty on the Functioning of the European Union (TFEU)). They will only apply to Member States insofar as they implement EU law. The likelihood of any EU instrument regulating the right to strike being implemented at all is close to zero, since the subject of strike is excluded explicitly from the EU Social Policy Title (Article 153(5) TFEU). This leads to the paradoxical situation that EU civil servants are better protected by Article 28 CFREU than ‘ordinary’ workers.
The judgment stands out as a landmark judgment, since the Court has never had the opportunity to recognise the existence of a right to strike in the specific ambit of EU civil servants, although the formal and generic recognition of the right to collective action in Viking and Laval as a general principle of EU law prior to the entry into force of the CFREU had to be relevant for EU civil servants as well. In a previous staff case, the General Court only recognised a general principle of labour law that workers are not entitled to receive a remuneration in case of a strike, clearly indicating that the recognition of this principle did not entail any recognition of the right to strike [(CJEU, 18 March 1975, Joined Cases 44, 46 and 49-74 (Acton and Others – v – Commission)].
Hence, the General Court had to examine whether this restriction of the right to collective action was consistent with Article 52(1) TFEU. This horizontal provision provides a tool to assess whether restrictions of Charter rights constitute violations. In order for a restriction to be in conformity with Article 52 CFREU it needs to pass a test of legality, legitimacy and proportionality. Since the system to requisition interpreters was deprived of any sufficiently precise and clear legal basis, the restriction could not be seen to be valid. Subsquently, the decision was annulled. With the exception of the European Central Bank, the Staff Regulations of these institutions are mute on the issue of a right to strike and for this reason on the issue of the restrictions.
Inevitably, the question might arise how the EU institutions will react to this judgment. They might of course continue to requisition workers, knowing that the annulment of such decisions requires lengthy procedures and that the General Court refused in this same case to suspend the decision (See General Court, 4 July 2018, T-402/18R). In my view, interpreters could in fact refuse to respect such decisions, since they are illegal. Refusing to abide by an illegal exercise of managerial authority cannot constitute a cause for stante pede dismissal (summary dismissal) . The EU institutions could of course make arrangements with trade unions on the establishment of a minimum service. The Staff Regulations indeed allow for the conclusion of agreements between trade unions and the EU institutions. In my view, these agreements cannot be binding upon civil servants themselves. One might even argue that such agreements allowing for a requisitioning would affect the Staff Regulations contrary to Article 10 quater of these Regulations.
The Strasbourg Court had to deal with two cases on the issue of the freedom of expression of workers (ECtHR, 3 September 2020, no. 57462/19, Yacob Mahi – v – Belgium; ECtHR, 5 November 2019, no. 11608/15, Herbai – v – Hungary). In both cases workers exercised that freedom outside the physical boundaries of the workplace and outside their working time. However, in both cases the Court recognised that the existence of an employment relationship could constitute a source of restrictions of the freedom of expression outside the workplace. In both cases that restriction was considered to be prescribed by law. In Herbai – v – Hungary, the code of ethics of a bank provided a blanket prohibition not to publish formally or informally any information relating to the functioning and activities of the employer. Furthermore the Hungarian Labour Code provided a generic obligation to refrain from jeopardising the legitimate economic interests of the employer. In the case of Yacob Mahi – v – Belgium, a teacher of Islam in public schools was subject to some general obligations to take into account the interests of the State and of public teaching and the need to refrain from compromising the honour and the dignity of his function.
In the case of Herbai –v –Hungary a contractual worker of a bank, working as an expert on salaries in the HR department had started a website for Human Resource Management (HRM) related publications and events for the use of HRM experts. He had published opinions of his colleagues and had also written and published a piece himself on a personal income tax reform and the question whether it had an impact on remuneration policies in the private sector. He was dismissed for breaching his employer’s confidentiality standards. In the case of Yacob Mahi, the teacher of Islam was transferred to another school for writing an open letter in the aftermath of the terroristic attack on Charlie Hebdo in Paris. This letter was sent in a situation of growing tensions in the school where he was teaching. Some pupils of the school had attacked a colleague who had defended the freedom of expression of the journalists of Charlie Hebdo and even another pupil who refused to sign a petition against the aforementioned teacher. In his letter, Yacob Mahi reacted to the fact that certain people in the media accused him of being behind these troubles, thus forcing him to react. He denounced the attacks in the name of Islam against Charlie Hebdo, but also called the freedom of expression exercised by the cartoonists abusive. He also argued that homosexuality was a troublesome phenomenon against that mental construct we call ‘human nature’. On top of that he also invoked the authority of a person who denied the Shoa.
The Court considered that the restrictions of the freedom of expression of the Hungarian HRM expert were disproportionate. It criticised the fact that the Hungarian judges did not convincingly demonstrate to have made a fair balance between the legitimate interests of the bank (e.g. its reputation) and the freedom of expression. Thus, the judges were satisfied with the standard of ‘potential damage’ stemming from the mere fact that the expert had written on issues related to his employment tasks or based upon his professional experience, without demonstrating that any secrets had actually been divulged or that the reputation of the bank had been damaged.
In sum, the Court’s decision shows that a clause which is interpreted as a blanket waivering of the freedom of expression is problematic. Such a clause still needs to pass a proportionality test.
In the case of the teacher of Islam, the Court was convinced that the sanction served a legitimate purpose, id est the preservation of the order in the school, of its reputation and that of the Federal entity to which it belonged. Neither was the sanction deemed disproportionate, since the teacher did not lose his job and since the new school was a small distance from his previous one (50km). Although the broad interpretation from public order as including order within the premises of the school is ‘interesting’, the judgment cannot be dissociated from the difficult context in which the teacher was exercising his freedom of speech, requiring more reserve than usual. The Court also reiterated its conviction that the expression was of a written nature and not a spontaneous reaction in an oral communication. It did not in my view sufficiently take into consideration that reputation works both ways. It puts restrictions on the freedom of expression, but it also provides additional legitimacy for a person to express himself or herself to defend their reputation when it is under attack. The Court considered that the claim was manifestly ill-founded.
[1] Filip Dorssemont is a professor at University Catholique de Louvain-Vrije Universiteit Brussels.
[2] General Court, 29 January 2020, T-402/18 (Roberto Aquino and Others – v – European Parliament).