CEDH · CASELAW;CLIN;ENG — 27 juin 2002

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Norway (dec.) - 38190/97 Decision 27.6.2002 [Section III] Article 11 Article 11-1 Form and join trade unions Prohibition on strike by Government ordinance providing for compulsory state arbitration: inadmissible The first applicant is a federation of trade unions for workers in the North Sea oil industry, the OFS. The second and third applicants were members of the OFS. In 1994, the first applicant participated in negotiations concerning a new wage agreement in the sector. The parties having failed to reach an agreement, the first applicant issued a strike warning. After the unsuccessful intervention of a State Mediator, the Minister for Local Government and Labour summoned the parties to a joint meeting. After having heard the parties’ respective arguments, the minister stated that he would recommend the Government to issue a provisional ordinance imposing compulsory arbitration of the dispute. The minister emphasised the highly detrimental consequences such industrial action would have on the country’s finances. Pursuant to Article 17 of the Constitution, the Government adopted a provisional ordinance, according to which disputes relating to the revision of the agreement on wages were to be settled by the National Wages Board, a State body, and the provisions of the Compulsory Arbitration Act 1952 should apply, prohibiting work stoppage and picketing. The applicant union’s action before the City Court which aimed at having the compulsory arbitration declared invalid was rejected and its appeal to the Supreme Court was dismissed. The Supreme Court held that the longstanding practice of using compulsory arbitration to settle labour disputes in respect of major societal interests did not contravene the general legal principles of constitutional law and that it was established that the right to strike was not unlimited. Inadmissible under Article 11: (i)   As to whether the first applicant was a victim, in several cases concerning collective aspects of trade union freedom, including strike action, the Court has examined complaints brought by a trade union under this Article. There was no reason for a different approach in the present case, where it was the unions that called the strike action and later exercised the remedies available under domestic law against the contested restrictions. It should be borne in mind that, under the domestic systems of some Contracting States, the right or freedom to strike is vested in individuals acting in concert, whereas under the systems of other Contracting States it is a union privilege. The words “for the protection of his interests” in Article   11 cannot be construed as meaning that only individuals and not trade unions may make a complaint under this provision. (ii)   As to whether the second and third applicants had exhausted domestic remedies, the interests for which they sought protection under the Convention were identical to those pursued by the first applicant collectively on behalf of its members. No elements were adduced which could have suggested that the second and third applicants might have obtained a different outcome had they brought proceedings in the domestic courts, either together with the first applicant or in a separate action. The fact that they did not do so could not be considered as failure to exhaust domestic remedies. (iii)   Restrictions imposed by a Contracting State on the exercise of the right to strike do not in themselves give rise to an issue under Article 11. In the instant case, the prohibition on strikes imposed by the provisional ordinance was implemented after the trade union members had been allowed to exercise their right to strike for 36 hours. The strike took place after unsuccessful collective bargaining and compulsory mediation between the first applicant and the relevant industrial partners. Thus, before the prohibition was imposed, the trade-union members enjoyed several means of protecting their occupational interests. The dispute was then referred to the National Wages Board for independent resolution. It was assumed that the first paragraph of Article 11 applied to the matter complained of and that the impugned restriction amounted to an interference with the rights guaranteed under this Article. Since oil workers do not fall within the categories of civil service professionals referred to in the second sentence of paragraph 2, the three conditions set out in paragraph 1 were applicable. Firstly, the provisional ordinance had a legal basis in national law, namely Article 17 of the Constitution and the Compulsory Arbitration Act 1952. Secondly, it could reasonably be regarded as pursuing the legitimate aims of public safety, the protection of the rights and freedoms of others and the protection of health. Thirdly, as to whether the interference was necessary in a democratic society, the members of the OFS were able to exercise their right to strike as protected under Norwegian law. The strike, which involved all union members and affected all fixed installations on the Norwegian Continental Shelf, generated significant losses after only 36 hours. The provisional ordinance was adopted at a time when it was expected that a continued strike would have resulted not only in a substantial drop in production revenues for both private and State companies, but would have also adversely affected energy supply to industries and households in EU countries and Norway’s credibility as a gas supplier to the EU. It was also considered that there would have been negative repercussions on the State budget, including the funding of the social security and the trade balance. There was nothing to indicate that the assessment made by the competent authorities was unreasonable. Furthermore, the technical installations risked being damaged if they remained unused for a long period, with ensuing consequences for health, safety and the environment. Thus, the strike was likely to have serious implications beyond the mere loss of revenue. In the exceptional circumstances of the present case, where the impugned measure was implemented for reasons that were not purely economic, the national authorities were justified in resorting to compulsory arbitration. Against this background and having regard to the margin of appreciation to be accorded to the respondent State, the impugned measure was supported by relevant and sufficient reasons and there was a reasonable relationship of proportionality between the interference with the applicants’ rights under Article 11 and the legitimate aims pursued: manifestly ill-founded.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes