Court of Cassation calls into question the enforceability of the right to collective action in the European Social Charter

The Supreme Court of Belgium had to rule on legality of the persecution of a group of trade union activists, who had collectively blocked an important highway, causing dangerous road conditions and a traffic jam of over 400km. The Court confirmed the criminal condemnation of the group of strikers, even if they did not contribute directly to the construction of the blockade. However, the surprising part of the judgment is that the Court states that the strikers cannot call upon the fundamental right to collective action in article 6.4 of the European Social Charter, as it is not sufficiently clear and precise and therefore, requires a supplementary regulation of the right by national legislation.

The case involved a large collective action of the socialist trade union FGTB. A group of over 200 trade union activists had blocked a highway bridge for several hours. According to the evidence, the protestors subsequently set fire to tires on the unstable bridge and the passage for emergency services was blocked. There were also incidents involving angry truck drivers, a high risk of collisions and an enormous traffic jam.

Article 406 of the Belgian Penal Code prohibits the malicious blocking/interruption of traffic. The public prosecutor persecuted 17 members of the trade union who were identified by the police, including high ranking trade union officers. All 17 were condemned in first instance and on appeal, leading to a request for cassation.

Firstly, the strikers claimed that they could not be punished as perpetrators of the crime of maliciously blocking traffic as this crime could only refer to an instant action, a.k.a. the fact of constructing a blockade to stop traffic. They claimed to only have joined the blockade at a later time and only after traffic had already halted. The Court did not agree with this view, as the strikers actively contributed to the mass picketing (and thus the blockade) by their mere presence.

Next, the strikers claimed that the criminal persecution of the activists who had not actively constructed the blockade, but were merely present, violates the freedom of association under article 11.2 of the European Convention of Human Rights, as this would be a disproportionate restriction of this freedom. The Court of Cassation again disagreed and repeated that their presence at the scene was sufficient to contribute to the blockade, which caused significantly dangerous consequences for public (traffic) safety and restricted the free traffic of persons and goods.

Further, the activists claimed that a certain number of them were punished more severely because of their status as important officers of the trade union, which would violate articles 10, 11 and 14 of the European Convention of Human Rights and the Right to collective action in Article 6.4 of the European Social Charter and Article G ESC, which sets out the conditions for the restrictions of the fundamental rights. Here the Court denied that the activists could rely on Article 6.4 of the European Social Charter to support their claims, stating: “Articles 6.4 and N of the Charter stipulate that the States Parties recognise the right to strike and may regulate it. Lacking the sufficient clarity and precision to give them direct effect, these provisions do not confer on the accused applicants a subjective right that they could assert against the criminal sanctions required of them.”

In other words, the Court stated that Article 6.4 ESC has no direct effect in Belgium, which means that strikers cannot call upon this right before the courts. This is surprising, as the right to collective action in art. 6.4 ESC has generally been accepted by case law and doctrine as the fundamental basis of this right in Belgium (since the ratification of the ESC in 1991), as the Belgian constitution does not explicitly mention the right to strike or collective action (although it could be covered indirectly).

The consequences of this new view of the Court are unclear, as the right to strike is also recognised by the Court itself (since the De Bruyne case of 1981). Certainly, this does not mean that Belgians can no longer claim a right to collective action or to strike, but it does seem to strip them of the right to claim the support of the European Social Charter, which in fact is the only fundamental instrument that explicitly mentions the right to collective action and the right to strike, which was presumed to have direct effect.

The Court continued by stating that certain activists were not condemned more severely due to their function as trade union officers, but only because they abused their authority to sustain the blockade of the thoroughfare. Accordingly, the Court rejected the claims of the activists.

The Court of Cassation thus accepts the penal prohibition of maliciously interrupting traffic as a limit on the right to strike. However, this is probably not what most people will remember about this case.