In the Enerji case judgement published on 21 April 2009, the European Court of Human Rights condemned Turkey for violation of Article 11 of the European Convention on Human Rights, which relates to the freedom of association including the right to form and join a trade union. In this case, the Turkish government had issued a general ban on strike actions for civil servants in the context of national action days organised by a Turkish trade union for the recognition of the right to collective bargaining in the public sector.
In a previous ruling, the Court had stipulated that the Convention requires trade unions to be allowed to defend their members’ interests. In the Enerji case, the Court has for the first time acknowledged in no uncertain terms that trade union’s ability to defend their members’ interests is inextricably linked to the right to strike. Therefore, the right to strike can only be limited in narrowly defined circumstances which must be provided for by law, have a legitimate aim and be necessary in a democratic society.
The ECJ must now urgently adapt its case law relating to the right to take collective action in order to bring it in line with essential human rights requirements. In the Viking case, the ECJ ruled that the exercise of the right to collective action is limited in case of conflict with the economic freedoms of companies circulating in the internal market. As a result, Trade unions must justify the proportionality of their collective action. This requirement imposes on trade unions a disproportionate burden, which can dissuade them from using the right to collective action since they are unable to predict what the courts may say.
The Viking case law is therefore in contradiction with the recent Enerji judgment of the European Court on Human Rights, which sets out the principle that it is the potential limit to the right to strike which must be assessed on a case by case basis, and not the other way round. ETUC considers that internal market restrictions are not sufficient to offset the fundamental right of trade unions to defend workers’ interests.
Furthermore, ETUC renews its call for the urgent adoption of a social progress protocol to be attached to the European Treaties, firmly establishing that the Treaty and especially its economic freedoms shall be interpreted as respecting fundamental human rights.
