Council of State Dehaene Judgment

Extract

[...] It relates to the regulation of the right to strike among civil servants as well as the legal value of the provision in the Constitution's preamble. The facts In this case, Mr. Dehaene was a civil servant working within the prefecture of Indre-et-Loire. In July 1948, a strike affected the prefectures and the Minister of the Interior at the time prohibited agents of authority from participating. Mr. Dehaene, then head of department at the prefecture of Indre-et-Loire, participated in the strike. [...]

[...] The supplementary nature of the regulatory power is thus recognized and will be taken up in other judgments of the Council of State, such as in the Hublin judgment of 1956, where it was specified that in the event of a strike, the government could take measures that may "to avoid an abusive or contrary to the needs of public order use. As a result, the role of the regulatory power is extended because it can provide clarifications in a situation not provided for by the laws. Finally, this judgment has allowed the administrative judge to have a conciliatory role. [...]

[...] Value of the judgment The Council of State was able to reconcile two constitutional principles of great value, namely the right to strike and the continuity of public service. Therefore, we must retain from this decision that the Council of State has recognized the legal value of the exercise of the right to strike as provided for in the preamble to the Constitution but without recognizing the absolute nature of this right. Scope of the judgment While no previous jurisprudence had come authorizing the regulatory power to regulate the right to strike of civil servants, the Dehaene judgment brings a clear and necessary clarification for future disputes. [...]

[...] On July the Council of State first declared the request without object since it was withdrawn on July then it pronounced itself on the annulment of the two prefectural decrees against Mr. Dehaene. Problem of law The Council of State had to pronounce on the conformity of the two decrees taken by the prefect to the Constitution, in particular on the application of the right to strike in the public service in the absence of legislative regulation of this right. [...]

[...] The Council of State therefore chose a third solution. To compensate for the lack of legislation, the Council of State recognized the competence of the regulatory power to regulate the right to strike in the public service. Based on these considerations, the Council of State has stated that the right to strike of civil servants was incompatible with the needs of the public service. The Council of State has therefore confirmed the sanction pronounced by the prefect against Mr. Dehaene. [...]