The boycott of the trade union under the law of the European Economic Area is illegal. No violation of the freedom of association
JUDGMENT
Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway 10.6.2021 (application no. 45487/17)
SUMMARY
Trade unions, company boycott within the European Economic Area (EEA). A domestic court ruling that the Norwegian Transport Workers’ Union (NTF) boycott of a shipping company by dock workers was illegal. The boycott took place at a shipping company, Holship Norge AS, which employs dock workers outside of a collective bargaining agreement in the port of Drammen.
The Court found that the Norwegian Supreme Court’s refusal to approve the boycott fell within its wide margin of appreciation and that it had provided sufficient and sufficient grounds to justify its final finding on the the nature and purpose of this boycott.
However, the Court has emphasized that, from the point of view of Article 11, freedom of establishment within the EEA is not a fundamental compensatory right to restrict the freedom of association, but rather an important element to be taken into account when .
Non-violation of Article 11 (freedom of assembly and association) of the ECHR.
PROVISION
Article 11
PRINCIPAL FACTS
The applicants, the Norwegian Transport Workers’ Union (NTF) and the Norwegian Confederation of
Trade Unions (LO), are Norwegian trade unions based in Oslo. They were founded in 1896 and 1899
respectively. The first applicant union is a member of the second.
In the 1970s, the applicant trade unions entered into a collective framework agreement with the
Confederation of Norwegian Enterprise (NHO), the largest employer organisation in Norway, and the
Norwegian Logistics and Freight Association, in respect of a fixed pay scheme for dockworkers at
many of the major ports in Norway. The framework agreement was renewed regularly.
Under the terms of the agreement, an office was set up in the port of Drammen, which was
responsible for the employment of all permanent workers in that facility. It had worker and portuser representation.
In 2013 Holship Norge AS, a subsidiary of the Danish company Holship Holding A/S, decided to
employ four workers at the port who, among other duties, were to load and unload their ships. The
company was not a party to the framework agreement.
As a consequence, the NTF decided to organise a boycott of all shipping in Drammen involving
Holship. It sought a declaratory judgment that the boycott would be lawful from the Drammen City Court, successfully. The Court gave extensive reasoning. That judgment was upheld by the Borgarting High Court.
Holship appealed to the Supreme Court. That court sought an advisory opinion from the Court of
Justice of the European Free Trade Association (EFTA) States. The latter court stated the following:
“The system in the present case protects only a limited group of workers to the detriment of other
workers, independently of the level of protection granted to those other workers … Boycotts, such
as the one at issue, detrimentally affect [the Holship employees’] situation. They are barred from
performing the unloading and loading services and may even lose their employment if their
employer affiliates to the Framework Agreement … The boycott … may touch upon fundamental
rights of Holship, such as the negative right to freedom of association, and possibly that of its
employees. … It is for the [Norwegian courts] to determine … whether the [boycott] at issue can be
justified.”
On 16 December 2016, in a split decision, the Supreme Court ruled the boycott unlawful. It referred
to the EFTA Court decision that Holship’s right to freedom of establishment under European
Economic Cooperation (EEA) law might be infringed by the boycott. That right could justify
restrictions of constitutional or Convention-based human rights. A fair balance had to be struck.
The Supreme Court adjudged that giving priority to workers employed via the administration office
in the port of Drammen was a restriction on the freedom of establishment. However, EU and EEA
law recognised protection of workers as a possible reason for restricting freedom of establishment.
For the Supreme Court, this justification for restricting freedom was not adequate in the
circumstances of the present case. Ultimately, the principal effect of the boycott would have been to
limit the access of other operators to the market for loading and unloading services. The Supreme
Court concluded that priority of engagement as demanded by the NTF was not sufficiently justified
and did not satisfy the requirement to strike a fair balance between freedom of establishment and
the possible fundamental right to boycott. It thus found the boycott unlawful.
Relying on Article 11 (freedom of assembly and association), the applicant unions complained of the
decision to declare their notified boycott unlawful.
THE DECISION OF THE COURT…
Article 11
The Court found that the boycott had sought to protect at least in part the occupational interests of
union members in a manner which fell within the scope of Article 11 of the Convention and that that provision was accordingly applicable,In addition, it was not contested that there had been an restriction of the trade unions’ rights owing to the declaratory judgment finding it unlawful. The
Court also declared that the 1947 Boycott Act had provided a sufficient legal basis for the Supreme
Court’s judgment. The question was thus whether the restriction flowing from the judgment had
been necessary in a democratic society.
The Court reiterated that the purpose of Article 11 was to protect the individual against arbitrary
interference by the authorities, but that there could in addition be obligations on the State to secure
the effective enjoyment of such rights.
For the Court, the Supreme Court had engaged in an assessment of the fundamental right to
collective action relied on by the applicant unions and the economic freedom under EEA law on
which the employer had relied. It had ruled that the boycott had to be, among other things,
reconciled with the rights that follow from the EEA Agreement and a fair balance had to be struck
between these rights.
The Court noted that it was clear from the Supreme Court’s judgment that its factual
characterisation of the boycott – a means to compel acceptance of a right of priority engagement
and notably with the desired effect being to limit the access of other operators to the market for
loading and unloading services – had been central to its finding that such a fair balance had, in the
particular circumstances of that case, been struck. On the basis of the material before it and given
the findings of fact and domestic law by the domestic court, the Court considered that the latter had
acted within the margin of appreciation afforded to it in this area when declaring the boycott
unlawful.
Accordingly, there had been no violation of the Convention in the particular circumstances of this
case.
The Court did however consider it necessary, given the manner in which the domestic court had
effected the balancing, to note that it accepted that protecting the rights of others granted to them
by way of EEA law could justify restrictions on rights under Article 11 of the Convention. However,
when implementing their obligations under EU or EEA law, the Contracting Parties had to ensure
that restrictions imposed on Article 11 rights did not affect the essential elements of trade union
freedom, without which that freedom would become devoid of substance. It added that while it was
primarily for the national courts to interpret and apply domestic law, if necessary in conformity with
EU or EEA law, EEA freedom of establishment was not a counterbalancing fundamental right to
freedom of association but rather one element, albeit an important one, to be taken into
consideration in the assessment of proportionality under Article 11.
