► “Legally, the requisition is not an infringement of the right to strike”
Xavier Magnonprofessor of public law at the University of Aix-Marseille and director of the Institut Louis-Favoreu
The right to strike is a constitutional right. It is devoted to the seventh paragraph of the Preamble to the 1946 Constitution, to which that of the 1958 Constitution refers: “The right to strike is exercised within the framework of the laws which regulate it. » This Preamble of 1946, like the Declaration of the Rights of Man and of the Citizen of 1789 or the Environmental Charter of 2004, belongs to the block of constitutionality, that is to say to the fundamental rights protected by the Constitutional Council.
The right to strike, whose legislation is scattered, is however not an absolute right, since, in a decision of August 2007, the Constitutional Council recognized the need, for the public service, of a balance between the right to strike and continuity. Concerning refineries and oil companies, it is of course not a matter of public service but of private companies. Hence the notion of requisition. It is then not the question of the right to strike that is called upon, but that of the strategic domain affected by the strike: the question of fuel supplies and therefore of a possible blockage of the country.
From a legal point of view, the requisition of goods or people is not an infringement of the right to strike and constitutes a regime provided for by the legislator. ” in case of emergency “. In the defense code: “By order of the Minister of Defense (…) it may be provided, by way of requisition, for the formation of the provisions necessary for the subsistence of the inhabitants of the garrison towns. » In the general code of local authorities: “When the observed or foreseeable breach of good order, health, peace and public security so requires”, the prefect can “requisition any property or service, require any person necessary for the operation of this service or the use of this property and prescribe any useful measure until the breach of public order has ended or until the conditions of its maintenance are ensured”. Requisition is therefore quite possible, even if its use is restricted and strictly supervised.
From a substantive point of view, however, the requisition is an infringement of the right to strike. The right to strike is indeed the exercise of pressure in social relations. The requisition can therefore become a way of counterbalancing this balance of power. Politically, resorting to it rather than pursuing social dialogue is therefore the choice of a tough strategy. It is then no longer a question of right but of opportunity.
► “Beware of our fundamental freedoms”
Marie-Laure Dufresne-Castetslabor lawyer at Bourdon et Associés (1)
The CGT reacted vehemently to government threats of requisitioning refineries, recalling that the International Labor Organization (ILO) would have condemned France in 2010 following requisitions in refineries on strike. In reality, it was not a condemnation but a recommendation, that is to say a strong criticism but without legal constraint. It was recommended to the French government to avoid resorting to any unilateral decision by favoring negotiation between social partners.
The fact remains that the CGT is right to be extremely vigilant about the possible actions of a government that would tend to break a strike. The requisition is a very strong measure, which explains why the possibility of using it is very limited. It must be justified by an emergency situation and a serious, foreseeable or observed breach of public order.
The measure must be enacted by a prefectural or ministerial order. But these decrees must rigorously specify the nature of the breach of public order, its degree of gravity, also the places and the number of workers concerned by the requisition, as well as its duration. There is indeed an obligation of proportionality between the seriousness of the risk to public order and the requisition decision and its magnitude. In particular, the requisition is not intended to restore a normal service but the minimum level of service, essential to eliminate the breach of public order…
We have also seen that in two appeals brought by the unions in 2010 against requisitions in the refineries, one of the administrative courts seized had upheld the decree, because the fuel was essential to safety in aviation, but the other had rejected it, believing that the measure restored normal service.
Today, if it is a question of ensuring the delivery of fuel to essential services, for example ambulances or emergency vehicles, the government could take care of organizing it itself with its strategic stocks. The government does not have to position itself on the side of employers!
The essential virtue of the strike is to embarrass the employers, otherwise it is useless. Employees do not strike for fun, but only in cases where employers are deaf to their demands. It is a fundamental right essential to democratic life.
However, in any event, fundamental freedoms, in particular the right to strike, must be protected. For years, the various regulations introduced, as in the transport sector, have tended to limit it. The CGT has good reasons for vigilantly defending this constitutional right. The threat of a ministerial decree of requisition by the government is, in the current circumstances, a sign that should not be overlooked.