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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - France (RATIFICATION: 1951)

Other comments on C087

Observation

Direct Request

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The Committee notes the observations of the General Confederation of Labour (CGT) received on 29 August 2023, and the Government’s replies to those.

Civil liberties. The Committee notes that the CGT alleges that civil liberties have been violated, including by seriously hampering the right to strike, through the disproportionate use of the police and other law enforcement agencies during recent protests. According to the CGT, the Ministry of the Interior’s National Law Enforcement Code (SNMO) undermines the freedom to protest by treating demonstrators as potential troublemakers who disturb public order. The CGT also denounces that law enforcement and intelligence agencies keep data files relating to political opinions, philosophical or religious beliefs or trade union membership, under the decrees of 4 December 2020, amending the provisions of the Internal Security Code. While noting the information provided by the Government on the principles governing the SNMO, the Committee also notes that the Government highlights that: (i) the use of force by the national police and gendarmerie, which is governed by the principles of necessity, proportionality and non-discrimination, is strictly controlled and monitored, and any misconduct in that regard is punished; and (ii) the protests against pension reform, which began in January 2023, were managed by security measures designed to ensure the safety of demonstrators in accordance with the law, in a particularly difficult context marked by serious acts of violence committed by certain demonstrators, or isolated cases of individuals acting violently against law enforcement officers, journalists at the scene or other people. With regard to the data files kept, criticized by the CGT in its observations, the Committee understands that the files in question (“administrative inquiries related to internal security” (EASP), “prevention of threats to internal security” (PASP) and “management of information and prevention of threats to public safety” (GIPASP)) target activities which may undermine the nation’s fundamental national interests or constitute a terrorist threat undermining these same interests. The Committee notes that, according to the Government, under no circumstances do the French authorities keep files on certain persons based on their political opinions, their philosophical or religious beliefs, or their trade union membership, and the treatment of the data concerns persons who may undermine the above-mentioned interests. In this respect, the Committee observes that the Conseil d’État rejected requests from trade unions and associations denouncing the dangerous nature of these files, as it considered that the contested decrees did not disproportionately breach freedom of opinion, conscience, religion or association.

The Committee recalls that trade union rights include the right to organize public demonstrations, provided that the trade unions respect the measures taken by the authorities to ensure public order. At the same time, the authorities should strive to reach agreement with the organizers of a demonstration to enable it to be held without disturbances and should resort to the use of force only in situations where law and order is seriously threatened; the intervention of the forces of order should be in due proportion to the danger to law and order that they are attempting to control. The Committee requests the Government to report on the administrative and judicial inquiries launched following the protests on pension reform at the beginning of 2023. The Committee also requests the Government to provide information on the application of the amended provisions of the Internal Security Code in relation to trade union organization members and to report on any developments, including judicial or regulatory decisions, concerning the issue of the data files kept based on trade union membership.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, freely elect their representatives, organize their administration and activities and formulate their programmes. Appointment of trade union delegates. In its previous comments, the Committee noted that, according to the General Confederation of Labour–Force Ouvrière (CGT-FO), Ratification Act No. 2018-217 of 29 March 2018 undermined the freedom of trade unions to choose their representatives, insofar as, under section L 2143-3 of the Labour Code: (i) the trade union that appoints its delegates must always be a representative union; and (ii) the trade union delegate must always as a matter of priority be chosen from among the candidates for occupational elections who have obtained 10 per cent of the vote. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates. The Committee notes in this respect that: (i) according to the Government, the hypothetical outcomes provided for in section L 2143-3 never put representative trade union organizations in a situation where they could not choose their representative; and (ii) the Court of Cassation, in a ruling of 8 July 2020, confirmed that when all of the elected representatives or all candidates having obtained at least 10 per cent of the votes that it put forward in the most recent occupational elections have waived the possibility of being appointed trade union delegates, the trade union organization can appoint as a trade union delegate one of its members in the enterprise or establishment, or one of its former elected representatives who have reached the limit of three successive terms of office on the social and economic committee (Cass. Soc. 8 July 2020, No. 19-14605). The Committee notes the Government’s indication, in response to its request, that it has not envisaged legislative amendments at this stage. The Committee notes this information.

Parity in occupational elections. In its previous comments, the Committee noted that the CGT-FO found that the interpretation by the Court of Cassation of the provisions of the Act of 17 August 2015 (section L.2314.30 of the Labour Code) regarding the balanced representation of women and men in representative staff bodies was incompatible with the freedom of a trade union to put forward the candidates of its choice, particularly by precluding the trade union organization from proposing a sole candidate. Noting the information provided by the Government, further to the ruling of the Court of Cassation of 13 February 2019 (No. 18-17.042), namely that the legislature had provided not for abstract parity but for proportionality in the number of candidates with regard to the number of male and female employees in the electoral college of the enterprise, the Committee requested the Government to provide its comments in reply to the observations of the CGT-FO with regard to the fact that it is not possible for trade unions to put forward sole candidates. The Committee notes that the Government, in addition to the above reference to the ruling of the Court of Cassation of 3 February 2019, indicates that: (i) the Constitutional Council has ruled that the rules on the balanced representation of women and men in representative staff bodies are in conformity with the Constitution (Decision No. 2017-686, preliminary ruling on constitutionality of 19 January 2018); (ii) jurisprudence is consistent in this matter and the Court of Cassation confirms that where two seats are to be filled in a gender diverse electoral college, the trade union organization cannot exempt itself from these rules by presenting only one candidate (Cass. Soc. 11 December 2019, No. 18-23513); (iii) however, the Court of Cassation has adjusted this rule in the particular case of the under-representation of one sex in an electoral college. Therefore, when the application of the rule of proportionate representation leads to the total exclusion of the representation of either sex, the lists of candidates shall include one candidate of the sex which would otherwise not be represented. This candidate cannot be the first on the list (L. 2314-30, Cass. Soc. 11 December 2019, No. 18-26568; Cass. Soc. 11 December 2019, No. 19-13037; Cass. Soc. 11 December 2019, No. 19-10855). The Committee notes this information.

Articles 2, 3, 6, 7 and 10. Standing of trade unions and trade union federations to take action. The Committee previously noted that, according to the CGT FO, in its decision (CE, 24 May 2017, No. 392661), the Conseil d’État considerably restricted the standing of a trade union federation to take action by not recognizing the latter’s right to challenge a prefectoral decision because of its very local scope of application, even though the subject of the dispute raised a question of principle that the trade union federation was intending to defend. The Committee noted the Government’s indication that: (i) in accordance with section L 2132-3 of the Labour Code, occupational trade unions have the right to take legal action and may exercise all the rights of a civil party before any court in respect of acts directly or indirectly prejudicial to the collective interest of the occupation that they represent; and (ii) the Conseil d’État’s decision of 24 May 2017 merely states that in view of their purpose conferred by law and by their statutes, the standing of a trade union or trade union federation to take action in defence of the collective interest will necessarily be assessed in view of the impact of the impugned decision. Emphasizing the importance of the right of trade unions to access to justice in order to defend the collective interests of their members, the Committee requested the Government to provide more detailed information on how this right is regulated in the legislation and in case law. The Committee notes in this regard that the standing of the trade union organizations to take action is very broad: unlike common law, indirect prejudicial acts to the collective material or moral interest of the occupation suffices (Cass. Soc. 2 June 1983, No. 81-40103 and No. 81-40489, case law that has been consistently confirmed since this date). For example, the trade unions were allowed to bring a civil action in the case of the collapse of terminal 2E at Roissy Charles de Gaulle airport, even though there were only victims from outside the enterprise, “insofar as the breaches constituting the offences prosecuted may have compromised the safety of workers and thereby caused damage to the collective interest of the occupation that they represent by the above-mentioned trade unions” (Criminal Cassation Chamber, 11 October 2005, No. 05-82414). The Committee also notes the provisions of the Labour Code listed by the Government concerning the power afforded to trade unions to take legal action on behalf of employees who have suffered injury (replacement proceedings), as well as class action regarding discrimination (L.1134-6 et sq.). The Committee notes the information provided by the Government on the standing of the trade unions to take action and the relevant case law of the Court of Cassation. Recalling that the observations of the trade union organizations that initiated the examination of this issue by the Committee addressed the Conseil d’État’s decision of 24 May 2017, the Committee requests the Government to provide any further information on the case law of the Conseil d’État on the matter.