Council of State Ruling on Right to Strike

Extract

[...] Delvolvé emphasizes that the administrative judge, far from limiting himself to a minimal control of the manifest error, comes to appreciate the concrete justification of the restrictions imposed on the exercise of the right to strike. This evolution reflects a renewed conception of the role of the judge, arbiter of the conciliation between freedoms and public service requirements. This regulatory function of the judge is linked to a broader vision of the principle of continuity. As shown by the works of Chapus, continuity is not a purely technical value, but a structuring principle of administrative law. [...]

[...] Thus, the administrative judge, by controlling the proportionality of the measures taken by the service chiefs, gives a concrete scope to the balance outlined in Dehaene. This balance will irrigate the subsequent construction of the law of continuity B. The lasting influence of the Dehaene ruling on contemporary law of continuity of public service The ruling Dehaene was not isolated. It has profoundly inspired the evolution of positive law, both in jurisprudence and on legislative and constitutional grounds. It has contributed to shaping the very notion of essential public services, for which continuity is of particular intensity, justifying specific frameworks for the right to strike. [...]

[...] The judgment Dehaene occupies a central place in French administrative law in that it participates in the definition of the fundamental principles of public service and in the establishment of a method of reconciliation between constitutional value norms. The facts of the case illustrate this tension. Mr. Dehaene, a civil servant holding a management position in a prefecture, participates in a strike movement triggered by a trade union. Due to his hierarchical responsibilities, he is required to ensure the continuity of the service and to ensure the maintenance of a minimum level of functioning. The prefect considers that his participation in the strike seriously compromises the service and decides to suspend him. Contesting this decision, Mr. [...]

[...] Conclusion The CE judgment July 1950, Dehaene appears as a major milestone in French administrative law. By recognizing the constitutional value of the right to strike while affirming the need to ensure the continuity of public services, the Council of State has established the basis for a structured reconciliation between public freedoms and the requirements of service operation. By consecrating the power of service chiefs to regulate the exercise of the right to strike, under the control of the judge, it has also confirmed the central role of the administration in organizing public services, while entrusting the administrative judge with the mission of preserving the balance between these competing interests. [...]

[...] This first dimension unfolds through the constitutional qualification of the right to strike and the insertion of continuity into the block of fundamental principles, and then through the recognition of a real internal regulatory power of service chiefs. A. The recognition of the right to strike as a constitutional principle and its necessary reconciliation with the continuity of service The Council of State begins by affirming that the right to strike is a principle of constitutional value, explicitly referring to the Preamble of the 1946 Constitution. [...]