CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 juin 2021

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margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s53CE0290 { width:176.96pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   FIFTH SECTION CASE OF NORWEGIAN CONFEDERATION OF TRADE UNIONS (LO) AND NORWEGIAN TRANSPORT WORKERS’ UNION (NTF) v. NORWAY (Application no. 45487/17 )   JUDGMENT Art 11 • Freedom of association • Well-founded decision to declare unlawful announced trade union boycott to pressure foreign company into collective agreement in breach of EEA freedom of establishment • Planned action capable of falling within the scope of Art 11 • “Negative freedom of association” of the foreign company not in issue • Non-inclusion of the EU Charter in EEA Agreement not determinative of whether the Bosphorus presumption can apply • Assumption, only for the purposes of this case, that the Bosphorus presumption does not apply to EEA law • Economic consequences of collective action not a decisive consideration for proportionality analysis • EEA rights not to be balanced against freedom of association, but rather to be considered as one element in the proportionality assessment   STRASBOURG 10 June 2021   FINAL   10/09/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Lətif Hüseynov,   Jovan Ilievski,   Ivana Jelić, judges,   Anne Grøstad, ad hoc judge, and Victor Soloveytchik, Section Registrar, Having regard to: the application against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Norwegian associations, the Norwegian Confederation of Trade Unions ( Landsorganisasjonen i Norge (“LO”)) and the Norwegian Transport Workers’ Union ( Norsk transportarbeiderforbund (“NTF”)) (“the applicant unions”), on 15 June 2017; the withdrawal of Arnfinn Bårdsen, the judge elected in respect of Norway, from sitting in the case (Rule 28 § 3 of the Rules of Court) and the decision of the President of the Section to appoint Anne Grøstad to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1(a)); the decision to give notice to the Norwegian Government (“the Government”) of the complaint concerning Article 11 of the Convention and to declare inadmissible the remainder of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the European Trade Union Confederation (ETUC), which was granted leave to intervene by the President of the Section; Having deliberated in private on 18 May 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the alleged violation of Article 11 of the Convention in relation to a decision by the Norwegian Supreme Court to declare unlawful an announced boycott by a trade union which was planned in order to pressure a Norwegian subsidiary of a Danish company to enter into a Norwegian collective agreement applicable to dockworkers. THE FACTS 2.     The first applicant union, the Norwegian Transport Workers’ Union (NTF), is a member of the Norwegian Confederation of Trade Unions (LO), the second applicant union. They were represented before the Court by Mr   H. Angell, a lawyer practising in Oslo, assisted by Mr L. Nagelhus and Mr.   H.P. Graver, advocates. 3.     The Government were represented by Mr M. Emberland of the Attorney General’s Office (Civil Matters) as their Agent, assisted by Ms   H.   Ruus and L. Tvedt, advocates at the same office. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background 5.     The applicant trade unions, NTF and LO, entered into a collective framework agreement with the Confederation of Norwegian Enterprise (Næringslivets hovedorganisasjon (“NHO”)), the largest employer organisation in Norway, and the Norwegian Logistics and Freight Association (NHO logistikk og transport), in respect of a fixed pay scheme for dockworkers at many of the major ports in Norway, including the port of Drammen ( Rammeavtale om fastlønnssystem for losse- og lastearbeidere “the Framework Agreement”). 6.     The Framework Agreement was entered into in the 1970s and then renewed biannually. It secured for Norwegian dockworkers the benefits of ILO Convention No. 137 (see further below), including the right to permanent employment and better pay. It had provisions on pay and working hours, and also included the following clause (clause 2(1)): “For vessels of 50 tonnes dwt [deadweight tonnes] and more sailing from a Norwegian port to a foreign port or vice versa, the unloading and loading work shall be carried out by dockworkers ..., [s]save for all unloading and loading at [a] company’s own facilities, where the company’s own people are used for unloading and loading.” 7.     In accordance with another clause (clause 3) of the Framework Agreement, an office for dock work was established in the port of Drammen (the Administration Office for Dock Work in Drammen ( Administrasjonskontoret for havnearbeid i Drammen (“the Administration Office”)). This was an entity which ran at cost and had a board of directors consisting of three representatives of users of the port and two representatives of dockworkers. Its purpose was to manage dockworkers and ensure that an appropriate number of such workers were affiliated with it. All permanently employed dockworkers in the Drammen port were thus employed by the Administration Office. The Framework Agreement applied from ship to quay and vice versa with the result that the handling of goods outside the port was unaffected by its requirements. 8.     Holship Norge AS (“Holship”) was a wholly-owned Norwegian subsidiary of the Danish freight forwarding group Holship Holding A/S. Holship established itself in Norway in 1996 and was based in Drammen. It was not a member of NHO or the Norwegian Logistics and Freight Association and was not party to the Framework Agreement. Until 2013 Holship used the services of the Administration Office when the company needed loading or unloading services in the port of Drammen. In 2013 it employed four persons in the port who, in addition to performing other tasks as employees for Holship, carried out loading and unloading operations for their employer. 9.     In a letter to Holship dated 10 April 2013, NTF demanded that a collective agreement be entered into and that Holship accept the Framework Agreement. Holship did not respond. 10.     On 11 June 2013, following further letters and voluntary mediation proceedings at the office of the National Mediator of Norway ( Riksmekleren ), NTF sent a letter with a notice of boycott. Part of the letter reads as follows: “The Norwegian Transport Workers’ Union maintains its demand for a collective agreement and encloses the Framework Agreement as input for the negotiations. Among other things, the agreement means that Holship must book dockworkers from the Administration Office for dock work in Drammen. We emphasise that this applies to ships engaged in both coastal and international shipping. As is the case for the ordinary Framework Agreement in ports, the Framework Agreement with Holship will have to be supplemented by an adaptation agreement for the port of Drammen. The Norwegian Transport Workers’ Union emphasises at the same time that the union is also willing to negotiate reasonable solutions to ensure that the negative effects for other employees of meeting the Norwegian Transport Workers’ Union’s demand for a collective agreement will be kept to a minimum. Since Holship has rejected all demands for a collective agreement which have been made by the Norwegian Transport Workers’ Union, we reiterate our notification regarding a blockade in respect of calls by ships at the port of Drammen where Holship is involved in unloading and/or loading work. The purpose of the blockade is to secure a collective agreement [and] enshrine in a collective agreement the principles concerning priority of engagement set out in clause 2(1) of the Framework Agreement in relation to Holship’s unloading and loading activity in the port of Drammen. As regards the lawfulness of a blockade in such cases, reference is made to the Supreme Court’s decision in the port of Sola case; see Rt. 1997 page [334, 337].” proceedings before the drammen City Court 11.     On 12 June 2013 NTF brought the case before the Drammen City Court ( tingrett ). In accordance with section 3 of the Boycott Act (see paragraph 60 below), it applied for an advance declaratory judgment that the announced boycott would not be unlawful. 12.     On 19 March 2014 the Drammen City Court ruled that the announced boycott would be lawful. 13.     In its judgment, the Drammen City Court found that there was no unlawful purpose ( rettsstridig formål ) behind giving notice of a boycott in order to compel an enterprise to enter into a collective agreement that would give dockworkers the protection which the Framework Agreement intended to provide, or to secure such an agreement. It stated that the matter did not concern an attempt to achieve a trade union organisation of employees, and the fact that there was a high degree of organisation in this regard was not a point in itself. As regards the dockworkers, each individual employee had a choice as to whether it was in his best interests to be a member of NTF. 14.     Furthermore, the Drammen City Court noted that the Framework Agreement only specified priority of engagement, and that Holship was entitled to use its own employees to carry out the relevant work if the Administration Office did not have the personnel available. It observed, moreover, that the boycott could have implications for Holship and its staff, but stated that this would be a consequence of the conflicting interests at stake, and thus a matter not particular to boycotts – similarly, this would be the effect of a strike or a lockout, which were also recognised forms of industrial action. The Drammen City Court observed that Holship had chosen to take a risk in employing staff to do unloading and loading work in the port. 15.     The Drammen City Court considered that the boycott would not harm important public interests. Instead, the court found that there were important public interests in loading and unloading work being carried out by competent personnel who were given continuous training. The point of the Framework Agreement had been to secure work for dockworkers for different forwarding companies, and to prevent unqualified labour from being used and casual workers from performing work on unbalanced terms. In that context, the Drammen City Court also noted that Norway had accepted the special position of dockworkers by ratifying ILO Convention No. 137 (see paragraph 70 below) and stated that the system in question constituted a long-standing customary practice. The Drammen City Court recognised that it was important to avoid a situation where a dominant position would distort competition and be an obstacle to freedom of establishment. However, neither of those consequences would be the result of safeguarding dockworkers’ rights in the manner intended by the Framework Agreement. 16.     Moreover, in the Drammen City Court’s view, some weight should be given to the fact that the intention had also been to ensure the satisfactory handling of goods in ports, an intention that had perhaps not been particularly emphasised. In the Drammen City Court’s assessment, the Framework Agreement accordingly served public interests and created predictability for those who performed the work and for users of the port. proceedings before the borgarting High Court 17.     Holship appealed against the Drammen City Court’s judgment, and on 8   September 2014 the Borgarting High Court ( lagmannsrett ) rendered a judgment in which it, like the Drammen City Court, concluded that the boycott would be lawful. 18.     The Borgarting High Court stated that, in principle, there was no unlawful purpose behind using a boycott to secure a collective agreement. Furthermore, it referred to a judgment by the Supreme Court ( Høyesterett ) of 5 March 1997 in a case concerning a similar situation in the port of Sola, Stavanger ( Rt -1997-334), in which it had been stated that the Framework Agreement, with its provision in clause 2(1), was a generally recognised collective agreement established by tradition in ports. In that case, the Supreme Court had noted that the agreement had its background in the special conditions of dockworkers, who had originally been casual workers without security for work or pay. Furthermore, the Supreme Court had observed that the provision in clause 2(1) of the Framework Agreement had been regarded as part of the fulfilment of Norway’s obligations under ILO Convention No. 137, and it followed from Article 3 of that Convention that registered dockworkers should have priority of engagement for dock work (see paragraph 70 below). The Borgarting High Court could not see that any circumstances existed in the present case that could lead to a different outcome from that in the Supreme Court’s judgment of 1997, in which it had been concluded that the boycott in question in that case was lawful. 19.     Furthermore, in response to an argument by Holship to the effect that its own dockworkers, who were also trade union members, would risk losing their work if the loading and unloading work was taken over by the Administration Office, since Holship would then have to terminate their employment contracts, the Borgarting High Court stated that it could not see that this situation was covered by the “breach of the law” scenario in the Boycott Act (see paragraph 60 below). Downsizing as a result of operational cutbacks would not necessarily constitute a breach of the law in relation to the person who was made redundant, since operational cutbacks could constitute reasonable grounds for dismissal. Moreover, the Borgarting High Court took note that NTF had repeatedly expressed its willingness to negotiate: “reasonable solutions to ensure that the negative effects for other employees of meeting the Norwegian Transport Workers’ Union’s demand for a collective agreement will be kept to a minimum”. This willingness to negotiate had also been reiterated during the appeal hearing. No such negotiations had taken place, but the Borgarting High Court assumed that they would take place in the event that a collective agreement (the Framework Agreement) was entered into. On this point, reference was made to the above judgment of the Supreme Court, in which a similar argument had been assessed and rejected. 20.     Under the heading “closed shop”, the Borgarting High Court went on to state that freedom of association was enshrined in Article 11 of the Convention, and that it was undisputed between the parties before the Borgarting High Court that that freedom included the right to choose not to join organisations (“negative freedom of association”). However, the Borgarting High Court did not find that there was evidence to support Holship’s claim that NTF’s demand for a collective agreement would impinge on the negative freedom of association. Although the employees at the Administration Office were in fact members of the Dockworkers’ Union (an association that came under the Portworkers’ Union, which was a division under NTF) at the time, on the basis of the evidence presented to it, the Borgarting High Court concluded that the parties to the case were well aware that it was not permitted to require employees to be members of a union, and also pointed to witnesses’ testimony to illustrate that such membership had in fact not been required. 21.     Before the Borgarting High Court, Holship had also argued that the Administration Office was, in reality, a temporary work agency that hired out labour contrary to provisions of domestic labour law. In response, the Borgarting High Court stated that the Administration Office had to be considered in the light of its special origin and distinctive objective; it had come about as a result of cooperation between social partners to secure the pay and working conditions of dockworkers, and the authorities had considered the Framework Agreement a fulfilment of Norway’s international obligations under ILO Convention No. 137. The court pointed out that Article 3 of the ILO Convention required member States to establish and maintain registers of dockworkers and stated that registered dockworkers should have priority of engagement for dock work (see paragraph 70 below). The Borgarting High Court therefore found that the distinctive activities of the Administration Office were not in conflict with general domestic regulations on the hiring of labour. 22.     Nor did the Borgarting High Court find that the announced boycott would be unlawful in terms of contravening provisions of competition law because it would harm important public interests or have an unwarranted effect, or because the interests pursued through it would be incommensurate with the harm it would cause. As to that last point, the Borgarting High Court stated that a boycott would, by its very nature, have negative consequences for the affected parties. In the instant case, it could not see that the negative consequences for Holship would exceed what had to be expected in a situation of that kind. Creating difficulties for the company in respect of loading and unloading, and possible negative financial consequences, would be an important point of the boycott. 23.     At the same time, the Borgarting High Court found that it was very important to the dockworkers that priority of engagement be maintained, in the absence of any agreement about an alternative way of organising dock work that would safeguard their need for a permanent and secure workplace. The Borgarting High Court stated that a boycott was the only form of industrial action at their disposal. 24.     Furthermore, the Borgarting High Court found that the dockworkers’ interests in having their demand for a collective agreement accepted had to be weighed against the consequences for Holship’s employees. It had been stated before the Borgarting High Court that if Holship could not carry out its own loading and unloading work, two or three employees might have to be made redundant. However, in the Borgarting High Court’s view, it was a key element in that balancing of interests that NTF had expressed a willingness to find solutions for Holship’s employees through negotiations. proceedings before the Supreme Court 25.     Holship appealed against the Borgarting High Court’s judgment to the Supreme Court. The Supreme Court’s Appeals Committee ( Høyesteretts ankeutvalg ) granted leave to appeal, and in a subsequent decision of 25   May 2016 it decided that the proceedings should, for the time being, be limited to issues of: the applicability of competition law to collective agreements; whether the boycott was unlawful, owing to the right of Holship to freedom of establishment under Article 31 of the EEA Agreement and the relationship between that provision and ILO Convention No. 137; and whether, if the boycott was contrary to freedom of establishment, that part of the EEA Agreement ( denne delen av EØS-avtalen ) conflicted with Article 101 of the Constitution or Article 11 of the Convention, and if the latter provisions had to be given precedence if that was the case. 26.     During the proceedings the Supreme Court applied for an advisory opinion by the Court of Justice of the European Free Trade Association (EFTA) States (the EFTA Court). The EFTA Court gave its opinion in a judgment of 19 April 2016 (E-14/15 Holship Norge AS v Norsk Transportarbeiderforbund ), part of which reads as follows:   “49. It follows from the request that NTF participates in the management of the AO. It is in NTF’s and the AO’s common interest to preserve the market position of the AO. This combination of a business objective with NTF’s core tasks as a trade union becomes possible when a trade union engages in the management of an undertaking, such as it turns out in the present case. ... 50. The effects of the priority clause and the creation of the AO appear therefore not to be limited to the establishment or improvement of working conditions of the workers of the AO and go beyond the core object and elements of collective bargaining and its inherent effects on competition ... 51. Moreover, the Court notes that the AO system in the present case protects only a limited group of workers to the detriment of other workers, independently of the level of protection granted to those other workers. In particular, boycotts, such as the one at issue, detrimentally affect their situation. They are barred from performing the unloading and loading services and may even lose their employment if their employer affiliates to the Framework Agreement. ... 123. Fundamental rights form part of the unwritten principles of EEA law. ... The fundamental rights guaranteed in the EEA legal order are applicable in all situations governed by EEA law. Where overriding reasons in the public interest are invoked in order to justify measures which are liable to obstruct the exercise of the right of establishment, such justification, provided for by EEA law, must be interpreted in the light of the general principles of EEA law, in particular fundamental rights. ... 124 Whether a restrictive measure aims at protecting workers needs to be answered in light of these considerations. When determining the aim pursued by the boycott, the national court must therefore take into account the objective pursued by the overall system established through the collective agreement in question. In that regard, the boycott cannot be viewed in isolation from the agreement of which it seeks to procure acceptance. 125 The Court notes further that it is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract. It must rather be assessed if the measure at issue genuinely aims at the protection of workers. The absence of such an assessment may create an environment where the measures allegedly taken with reference to the protection of workers primarily seek to prevent undertakings from lawfully establishing themselves in other EEA States (see, for comparison, AG Poiares Maduro in his Opinion in Viking Line, cited above, point 67 et. seq.). 126 It appears in the present case that the aggregate effects of the priority clause and the creation of the AO are not limited to the establishment or improvement of working conditions of the workers of the AO and go beyond the core object and elements of collective bargaining and its inherent effects on competition. The AO system protects only a limited group of workers to the detriment of other workers, independently of the level of protection granted to those other workers. In particular, boycotts, such as the one at issue, detrimentally affect their situation. They are barred from performing the unloading and loading services and may even lose their employment if their employer affiliates to the Framework Agreement. 127 ... from the information before the Court, there is nothing to suggest that some kind of labour dispute between Holship and its employees exists and that the boycott imposed aims at improving the working conditions of Holship’s employees. The boycott is even to the detriment of Holship’s employees and may touch upon fundamental rights of Holship, such as the negative right to freedom of association, and possibly that of its employees. ... ... 130 ... A restrictive measure must be such as to guarantee the achievement of the intended aim and must not go beyond what is necessary in order to achieve that objective. ... 131 It is for the referring court to determine, having regard to all the facts and circumstances before it and the guidance provided by the Court, whether the restrictive measure at issue can be justified.” 27.     The Supreme Court, sitting in a plenary formation, rendered its judgment on 16 December 2016. By ten votes to seven, it ruled that the boycott would be unlawful. 28.     The Supreme Court’s majority firstly recognised that the Supreme Court had declared a similar boycott lawful in the Port of Sola case which it had adjudicated on in 1997 (see paragraph 18 above). In that case, however, it had not been submitted that the right to priority of engagement conflicted with freedom of establishment under Article 31 of the EEA Agreement, and the Supreme Court had therefore not considered that issue. In the instant case, that argument had been raised, and the EFTA Court had been asked for an advisory opinion, in which it had stated that the system of priority enshrined in the Framework Agreement was likely to constitute a restriction of freedom of establishment (see paragraph 26 above). 29.     The Supreme Court did not find it necessary to conclude whether Article 101 of the Constitution (see paragraph 59 below) or Article 11 of the Convention would be applicable to the boycott. It stated that in the event that Article 101 applied, the question for the Supreme Court was whether the interference with a possible right to boycott was proportionate. 30.     According to the Supreme Court, the right to freedom of establishment was a fundamental right in the context of EEA cooperation. For that reason, it concluded that the case concerned a balancing of the right possibly vested in the applicants under Article 11 of the Convention against Holship’s right to freedom of establishment under the EEA Agreement. In this context, the majority considered that this weighing up of interests was similar in nature to the procedure carried out when restrictions were imposed on freedom of establishment as a result of basic rights forming part of EU and EEA law: just as rights under the EEA Agreement could justify restrictions of constitutional or Convention-based human rights, constitutional or Convention-based human rights could justify restrictions of rights under the EEA Agreement. 31.     The Supreme Court considered that if one used either the Constitution as one’s starting point, weighing the rights under it against the rights under the EEA Agreement, or the EEA Agreement, weighing the rights under it against those under the Constitution, one had to try to strike a fair balance between the rights in question. In the majority’s view, the outcome of weighing freedom of assembly against freedom of establishment should not depend on the set of rules which one used as one’s starting point. In a similar vein, it was stated that weighing freedom of association under the first paragraph of Article 101 of the Constitution against freedom of establishment under the EEA Agreement had to lead to the same result. The majority therefore moved on to address the issue of whether the announced boycott constituted a restriction on freedom of establishment under Article   31 of the EEA Agreement. 32.     In carrying out that assessment, there was, in the majority’s view, no doubt that the right to priority of engagement for loading and unloading operations for dockworkers registered with the Administration Office at the port of Drammen, which NTF was attempting to make Holship accept, constituted a restriction on freedom of establishment under Article 31 of the EEA Agreement. The issue for the majority thus became whether the right to priority of engagement could be justified by the exemptions that applied to that freedom. 33.     In that context, the Supreme Court’s majority stated that the practice of the Court of Justice of the European Union (CJEU) had been consistent in its application of the equivalent provision of Article 49 of the Treaty on the Functioning of the European Union (TFEU); restrictions on freedom of establishment which were applicable without discrimination on grounds of nationality could be justified by overriding reasons of general interest, provided that such restrictions were appropriate for achieving the objective pursued and did not go beyond what was necessary to achieve that objective. It was generally accepted law to interpret freedom of establishment under Article 31 of the EEA Agreement as being subject to the same limitation. 34.     The Supreme Court held that regardless of how far the protection of the right to boycott extended as a fundamental right under EU and EEA law, it had been established that the protection of workers was recognised as an overriding reason of general interest that could justify restrictions on freedom of establishment. However, a specific assessment of the measure at issue was required. 35.     Turning then to whether the announced boycott had to be considered lawful because it aimed to protect the interests of workers, the Supreme Court’s majority found that NTF’s ultimate objective in demanding the collective agreement was to protect such interests. However, this was not sufficient to justify the restriction on freedom of establishment. Reference was made to the case-law of the CJEU ( International Transport Workers’ Federation and Finnish Seamen’s Union v. Viking Line ABP and OÜ Viking Line Eesti , C-438/05, EU:C:2007:772, § 81, 11 December 2007), where it had been stated that while a collective action “could reasonably be considered to fall, at first sight, within the objective of protecting workers , such a view would no longer be tenable if it were established that the jobs or conditions of employment at issue were not jeopardised or under serious threat”. 36.     Moreover, the Supreme Court’s majority stated that the Administration Office was a separate legal person, and that the type of collective agreement provision demanded by NTF was irregular in nature. The protection of working and pay conditions provided by the right to priority of engagement was, in its view, relatively indirect. Priority of engagement for loading and unloading operations for dockworkers registered with the Administration Office would limit access to that market for other operators, in effect regulating the market. Jobs were protected by the company ( bedriften ) being effectively shielded from outside competition. 37.     The majority considered that although the Administration Office was a not-for-profit entity, it engaged in business activities in a market to which other operators wanted access. The dockworkers were employed by the office, and the activities of the office were financed by fees imposed on loading and unloading operations, which were paid by the port’s users. Priority of engagement for Administration Office employees for loading and unloading operations at the port of Drammen limited the access of other operators to this market. It favoured Administration Office personnel over other personnel, and through the right to priority of engagement, the Administration Office was shielded from competition from other entities. 38.     In the view of the majority of the Supreme Court, the primary effect of the announced boycott would be Holship being denied access to a market it wanted to enter. As such, the action differed from other collective actions whose purpose was to pressure an employer to improve pay and working conditions for its employees or prevent an employer from terminating its employees’ employment. As had been emphasised by the CJEU, the wish to safeguard an undertaking’s survival or shield a member State’s undertaking from competition was not sufficient to justify restrictions on freedom of movement within the EEA. 39.     The Supreme Court’s majority thus concluded that while the objective of the announced boycott was to protect the interests of workers, it could not be recognised as an overriding reason for restricting freedom of establishment. 40.     The majority then went on to consider the issue of whether the announced boycott was protected as a fundamental right under EU and EEA law, and, if so, whether it took precedence over freedom of establishment. 41.     The Supreme Court stated that one of the fundamental rights under EU and EEA law, which could be derived, inter alia , from freedom of assembly under Article 11 of the Convention, was the right to collective bargaining and collective action. Article 28 of the EU Charter explicitly established the right of collective bargaining and action. 42.     The right of collective action, however, was not absolute, but “subject to a restriction of proportionality”. For EU and EEA law, this followed from, inter alia , the judgments in Viking , cited above, and Laval of the CJEU ( Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet , C-341/05, EU:C:2007:809, 18 December 2007). It had been established in those judgments that fundamental rights had to be weighed against and reconciled with the requirements under EU and EEA law, and be in accordance with the principle of proportionality. 43.     It had been established by the Court in its judgment in the case of Enerji Yapı-Yol Sen v. Turkey (no. 68959/01,   §   24, 21 April 2009) that the right to strike was protected by Article 11 of the Convention. The Supreme Court’s majority stated that it had not, however, been determined whether the right to boycott under circumstances not related to a strike was protected under that provision. Whereas a strike normally entailed a financial burden for the party initiating the action, a boycott did not normally entail any financial burden on the party encouraging the boycott, and did not necessarily entail a financial burden on the party initiating it. Collective action in the form of boycotts therefore did not necessarily enjoy the same protection as the right to strike. 44.     The Supreme Court’s majority went on to state that it was unnecessary to consider whether there was a “right to boycott” protected by Article 11 of the Convention, and that even if that provision had to be construed so as to protect a right to boycott, “this right [was] subject to the same restriction of proportionality as other rights protected by this provision”. 45.     In arguing that the announced boycott was lawful, NTF, with the support of LO, had submitted before the Supreme Court that the right to boycott was protected by the European Social Charter (revised), ILO Convention No. 87 concerning Freedom to Associate and Protection of the Right to Organise, and ILO Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively. The Supreme Court stated in reply that, in so far as those Conventions did protect the right to boycott, they could not be interpreted as granting trade unions an unrestricted right to use boycotting as a means of collective action. In the Supreme Court’s majority’s view, those Conventions also had to allow for specific considerations similar to those required for rights under Article 11 § 2 of the Convention. 46.     The Supreme Court held that in considering whether a boycott satisfied the requirements for proportionality pursuant to the above international instruments, among other things, the boycott had to be reconciled with the rights under the EEA Agreement, of which freedom of establishment was a cornerstone. 47.     Moreover, in the case before it the boycott was being used as a means to compel Holship to accept the Administration Office’s workers’ right to priority of engagement for loading and unloading operations at the port of Drammen. The principal, and desired, effect would be to limit the access of other operators to the market for loading and unloading services. As such, the boycott would impose considerable restrictions on freedom of establishment and also conflict with the interests of other workers. If Holship were to be allowed to carry out loading and unloading operations at the port of Drammen, this would generate jobs within Holship. From a human rights perspective, it was hard to argue that those jobs carried less weight than jobs at the Administration Office, and the aims that the right to priority of engagement intended to protect could also be protected by other means. 48.     The Supreme Court’s majority concluded that priority of engagement as demanded by NTF was not sufficiently justified and did not satisfy the requirement to strike a fair balance between freedom of establishment and the possible fundamental right to boycott. 49.     Before the Supreme Court, NTF, with the support of LO, had strongly emphasised that priority of engagement for dockworkers for loading and unloading operations was in accordance with ILO Convention No. 137, and that formalisation of the priority clause had been Norway’s way of fulfilling its obligations under that Convention. 50.     According to the Supreme Court’s majority, it was, however, unclear how that provision was to be interpreted. To the majority, the purpose of ILO Convention No. 137 seemed to be orderly working and pay conditions for dockworkers. In the Supreme Court’s assessment, these considerations could be fulfilled by means other than granting priority of engagement for loading and unloading work to one group of workers: in accordance with the domestic labour legislation, appointments should, as a general rule, be on a permanent basis; satisfactory wage conditions could be negotiated by collective agreements; and safety requirements could be met by the training and certification of workers. In any event, regardless of how Article 3 of the ILO Convention was to be interpreted, pursuant to the EEA Act, that Convention had to give precedence to freedom of establishment under Article 31 of the EEA Agreement. 51.     The announced boycott thus had an unlawful purpose, as it violated freedom of establishment under Article 31 of the EEA Agreement and was therefore unlawful within the meaning of that term under section 2(a) of the Boycott Act (see paragraph 60 below). 52.     In contrast, the seven-judge minority found, firstly, that competition law did not apply to the collective agreement which the announced boycott sought to enforce. It then went to on to examine whether the boycott could be justified as a restriction on the right to freedom of establishment under Article 31 of the EEA Agreement. 53.     In that context, the minority noted that collective bargaining and action were acknowledged as fundamental rights in EEA law, and the protection of workers could thus constitute a compelling reason to accept restrictions on freedom of establishment. It then pointed to the EFTA Court’s having, in the minority’s view, misunderstood the purpose of the Administration Office in finding that it served a business purpose going beyond preserving pay and working conditions for its employees. The minority found it clear that preserving such conditions was the only purpose of the Administration Office. Nor did the minority agree with the majority that the impact that the boycott would have on the pay and working conditions of employees at the Administration Office would be indirect. 54.     Moreover, taking into account the development since the CJEU’s judgments in the cases of Viking and Laval , including that the European Parliament had twice rejected proposals for EU directives that would have limited rights to priority of engagement for dockworkers, the provisions of ILO Convention No. 137, and the fact that many EU Member States had systems of priority for registered dockworkers, the minority concluded that the boycott, whose purpose was to enforce the collective agreement in question, served a legitimate aim. 55.     Thereafter, the minority examined the issue of proportionality: whether the boycott was an adequate measure, and whether forcing Holship to accept the priority right by joining the Framework Agreement would entail going further than necessary to achieve the protection of workers. It concluded that a boycott was the only means of enforcing the agreement, and that nothing indicated that the Framework Agreement was inappropriate for ensuring the pay and working conditions of the dockworkers who enjoyed the priority right. In assessing whether the agreement went too far, the minority observed that dock work and shipping had developed, but on two occasions the EU Parliament had nevertheless not supported proposed EU Directives that would limit dockworkers’ priority rights. Reference was also made to considerations of the ILO Expert Committee about the relevance of the registration system. 56.     The minority concluded that at the time there were no good alternatives to the priority system in the Framework Agreement, and took note that the CJEU, in European Commission v.   Kingdom   of   Spain (EU:C:2014:2430, § 41, 11 December 2014), had indicated that an arrangement resembling that in the Framework Agreement would ensure the rights under ILO Convention No. 137 without violating freedom of establishment. They concluded that “the employment situation for the permanently employed dockworkers with the Administration Office would become a lot less secure if the priority clause were not observed. The basis for permanent employment may disappear”. 57.     In conclusion, the minority found that in the circumstances of this case any restriction to which the announced boycott would give rise for the freedom of establishment was justified. 58.     The minority lastly stated that Holship had argued that the boycott ran counter to the negative freedom of association under Articles 101 of the Constitution and 11 of the Convention, but this was not the case. On this point, the minority simply stated that it was sufficient to point to the Borgarting High Court’s reasoning (see paragraph 20 above), with which it agreed. RELEVANT LEGAL FRAMEWORK Domestic legislation and collective agreements 59.     Article 101 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in 2014, reads: Article 101 “Everyone has the right to form, join and leave associations, including trade unions and political parties. All people may meet in peaceful assemblies and demonstrations. The Government is not entitled to employ military force against citizens of the State, except in accordance with the law, unless an assembly disturbs the public peace and does not immediately disperse after the Articles of the statute book relating to riots have been read out clearly three times by the civil authority.” 60.     Sections 2 and 3 of the Act of   5   December 1947 concerning boycotts ( boikottloven ) read: Section 2 “A boycott is unlawful: (a) when it serves an unlawful purpose or cannot achieve its goal without causing a breach of the law; (b) when it is executed or maintained by unlawful means or in an unnecessarily provocative or offensive manner, or on the basis of false or misleading information; (c) when it will harm important public interests or have an unwarranted effect, or when the interest pursued through the boycott is incommensurate with the harm it will cause; (d) when it is executed without the party against whom it is aimed having been given reasonable notice, or when this party and those who are encouraged to participate in the boycott have not been sufficiently informed in advance of the grounds for the boycott.” Section 3 “If notification has been given of a boycott, a legal action may be brought to decide whether