The Right to Strike in Public Services: Limitations and Regulation

Extract

[...] By such a statement, the judge expands the scope of application of the Dehaene jurisprudence of 7 July 1950, which limits the right to regulate the right to strike to administrative authorities. From now on, based on the present decision, even private law persons in charge of a public service mission are authorized, under certain conditions, to issue acts limiting the right to strike. This solution results from a reasoning according to which the right to strike is a regulated right and its exercise founds the application of public law rules (II). [...]

[...] This strike had been decided at the time when the company had organized maintenance operations for French nuclear power plants. The leaders of the EDF company argue that the aforementioned strike is likely to disrupt the smooth operation of the maintenance operations, which, according to them, is highly detrimental to the electricity supply in France. Judging that there was an urgent need, the leaders took on June requisition acts to force the strikers to resume work. Considering that these acts disregarded the right to strike, the employees, represented by their federations, seize the Council of State in support of a recourse for abuse of power aimed at pronouncing the nullity of these acts. [...]

[...] II) The right to strike as the basis for the application of public law rules The distinction between public services with an administrative character and public services with an industrial and commercial character is based on a number of criteria developed by the judge. This distinction allows for determining the applicable law in the event of a dispute. Today, and as attested once again by the present decision, it is now admitted that there is no longer a coincidence between the organic element and the applicable law that presided over the decline of the organic criterion in favor of the material element with the consequences that this entails for the regulation of the right to strike The decline of the organic element in favor of the material element The decline of the organic element as a criterion for determining the applicable law is the result of a double judicial movement of the early 20th century. [...]

[...] CFDT of the PTT of Haut-Rhin). The judge extends, in the present decision, the prerogatives of the administrative authority to the directors of a private law company, competent, according to the judge 'to issue the rules applicable in the event of continuation of the strike'. In doing so, the judge admits that constraints, normally reserved for public agents, may be applied to private sector employees. This is the case, in this instance, of the requisition decided by the EDF management against the strikers. [...]

[...] The Tribunal of Conflicts specifies, in its decision of 22 June 1992, that disputes between employees of Électricité de France and their employer fall within the jurisdiction of the judicial judge, 'administrative jurisdictions, on the other hand, remain competent to assess, by way of prejudicial question, the legality of Électricité de France's decisions relating to the organization of the public service and the status of the personnel of this public establishment which have a regulatory and administrative character'. In its decision of 12 April 2013 on the applicable law to EDF employees who go on strike, the judge admits that the nature of the public service mission entrusted to EDF justifies the use of an extraordinary regime of common law. [...]