EU: Fundamental Rights in the ECHR vs. EU Economic Freedoms
On 10 June 2021, the European Court of Human Rights (ECtHR) issued its ruling in the Holship case, regarding a possible violation of the right to take collective action under Art. 11 ECHR. In its judgement, the ECtHR clarified that Member States should avoid trying to balance the fundamental rights of the ECHR against the economic freedoms of the EU (and the European Economic Area), as the freedom of establishment (economic freedom) is not a counter-balancing fundamental right to the freedom of association in Art. 11 ECHR, but rather just one (important) element to be taken into consideration in the assessment of proportionality of the restriction of a right included in the Convention. Nonetheless, the Court also awards a wide margin of appreciation to the national courts in judging whether a restriction of the right to collective action is lawful or not.
In this case, there was a dispute regarding the lawfulness of the trade unions’ blockade of ships, which were loaded and unloaded by employees of the Danish company Holship in the Norwegian port of Drammen. Holship refused to enter into collective bargaining with the Norwegian trade unions, which responded with a collective action. While the Norwegian lower courts, in first instance and in appeal, accepted the lawfulness of the collective action, the Norwegian Supreme Court reversed its own case law on the matter after it posed a preliminary question to the EFTA Court (i.e. the Court which solves disputes regarding the European Free Trade Association and the law of the European Economic Area (EU + Norway and Iceland)). The EFTA Court relied heavily on the case law of the Court of Justice of the European Union in the Viking and Laval cases, in which the CJEU considered that collective actions by the trade unions were unjustifiable restrictions of the freedom to establishment and the freedom to provide services. Based on the judgement of the EFTA Court, the Supreme Court ruled that the blockade was not lawful.
In response, the Norwegian trade unions claimed an alleged violation of the freedom of association (including the right to take collective bargaining under Article 11 ECHR before the ECtHR.
The ECtHR recognised that protecting the rights of others granted to them by way of EEA law may justify restrictions on rights under Article 11 ECHR. However, it also noted that for a collective action to achieve its aim, it may have to interfere with internal market freedoms. Creating difficulties for the company in respect of loading and unloading, and the possible negative financial consequences flowing therefrom, would have been an important objective of the boycott. In the same way that a right to strike does not imply a right to prevail, the degree to which a collective action risks having economic consequences cannot therefore, in and of itself, be a decisive consideration in the analysis of proportionality under Article 11, paragraph 2 of the ECHR. Even when implementing their obligations under EU or EEA law, the Court observed that Member States should ensure that restrictions imposed on Article 11 rights do not affect the essential elements of trade union freedom, without which, that freedom would become devoid of substance.
Further, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law in conformity with EU or EEA law. However, there is a risk that a domestic court may balance a right under the Convention against a right under the EEA Agreement, in a manner that would generally only be appropriate had the issue before it been a matter of conflicting fundamental rights under the Convention. From the perspective of Article 11 ECHR, the EEA freedom of establishment is not a counter-balancing fundamental right to freedom of association, but rather just one element, albeit an important one, to be taken into consideration in the assessment of proportionality under Article 11, paragraph 2. Such counter-balancing must be avoided, as the ECtHR does not accept the economic freedoms of the EU and the EEA, to serve as legal norms of the same hierarchical level as the fundamental rights in the ECHR.
However, the Supreme Court’s characterisation of the purpose and nature of the announced boycott was central to its ruling. While the Supreme Court did not approach the case strictly from the angle of the proportionality of the restriction imposed on the trade unions’ exercise of rights under Article 11 ECHR, but rather concentrated, to a great extent, on the effects of the boycott on the freedom of establishment of Holship; thus the ECHR considered that it nonetheless remained within its wide margin of appreciation and advanced relevant and sufficient grounds to justify its final conclusion in the particular circumstances of this case. Accordingly, there was no violation of Article 11 ECHR.