Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 362, Novembre 2011

1. 965. The complaint is contained in a communication from the General Confederation of Labour (CGT) dated 17 February 2011.
2. 966. The Government sent its observations in a communication dated 3 June 2011.
3. 967. France has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135), 1971.

A. The complainant’s allegations

1. 968. In a communication of 17 February 2011, the CGT alleges violations of freedom of association, and in particular the right to strike, by requisitioning orders issued by the authorities during the industrial action in October 2010.
2. 969. The complainant organization recalls that in France in October 2010, there was a remarkable national protest against pension reform. Workers from every sector exercised their right to strike and extraordinarily large demonstrations were organized (several million people took to the streets), with massive public support. The complainant organization alleges that, in this context, the Government’s attitude was irresponsible on several counts: it completely refused to negotiate with the trade union organizations; it tried to debilitate the industrial action and abused its power to requisition striking workers. According to the CGT, several prefectural authorities implemented multiple requisitions in the oil sector, which was one of those most involved in the industrial action. They issued back-to-work orders for several days before withdrawing them just before the judicial authorities ruled on their legality, in order to avoid any convictions. In the complainant’s opinion, the requisitions had two objectives: maintaining economic activity by minimizing the impact of the strikes, and putting a stop to the national protests. Employees of different oil companies therefore suffered a clear violation of their right to strike. Requisitioning constitutes a very effective obstacle to exercising the right to strike, in that striking workers who are requisitioned and refuse to return to work are committing a criminal offence and are liable to six months’ imprisonment and a €10,000 fine. In fact, according to the complainant, in October 2010, some 160 workers were requisitioned and received notifications from the prefect detailing the criminal sanctions to which they would be liable if they refused to return to work.
3. 970. The complainant organization points out that, under several orders of 22 October 2010 (prefectural back-to-work orders Nos 183/DSCS/SIDPC and SIDPC 2010-303), the prefects of Yvelines and Seine-et-Marne requisitioned the majority of the striking workers at the Gargenville oil storage depot and the Grandpuits refinery. The aim of the requisitions was to restore the fuel supply in the Ile-de-France region, especially at Roissy-Charles de Gaulle airport. Faced with such a violation of their right to strike, the workers concerned and the trade union organizations tried to have the back-to-work orders suspended. French law includes a provision for an emergency procedure that enables the administrative judge to halt a serious and manifestly illegal violation of a fundamental freedom. However, invoking that procedure did not have the desired effect in so far as, by a decision of the Council of State (decision No. 343966 of 27 October 2010), the highest administrative court authority, the workers were forced to return to work. According to the CGT, the Council of State seems to have been influenced by an alarmist presentation of the facts by the Office of the Public Prosecutor. It was impossible to challenge that version because the nature of the emergency procedure does not allow for thorough investigations to be conducted. In the opinion of the CGT, the prefects, who were responsible for the requisitions, are representatives of the State. They are under the direct control of the Government, and their actions (in this case, back-to-work orders) are therefore the Government’s responsibility.
4. 971. According to the complainant organization, the conditions required under national legislation in order to implement requisitions were not respected. The complainant organization recalls that requisitions are highly regulated in French law and that, under the terms of the General Local Authorities Code (CGCT), striking workers can be requisitioned only under the following conditions: “in an emergency, when required by a real or foreseeable breach of the peace, public health, public order and public safety and when the means at the prefect’s disposal no longer allow him to pursue the objectives for which he has powers of enforcement, he may, by means of an order setting out the grounds for the decision, and for all, several or only one of the communes in the department, requisition any good or service, requisition any persons needed for that service to function or that good to be of use and prescribe all appropriate action until the breach of the peace has come to an end or the conditions to maintain public order are in place” (article L. 2215-1, paragraph 4).
   • The same Code also stipulates that: “The order setting out the grounds for the decision establishes the nature of the requisitioned services, the duration of the requisition and how it will be carried out.”
5. 972. The CGT also recalls that it is clear from parliamentary debates that the legislator’s intention at that time was to provide a general tool that would enable prefects to best maintain public order. The Minister of the Interior at the time, responding to fears that prefects would be given excessively broad powers to counter the freedoms of citizens, claimed that the provision would be useful to respond to natural disasters, industrial accidents, health risks and social emergencies with exceptional material means: “This is not about giving prefects an additional power: the power of requisition already exists. It is just that it is defined in such a myriad of scattered, and somewhat ambiguous legal texts, that I wanted to put the power of requisition, which all elected officials know is crucial for expediting repayments and strengthening the State’s efficiency, on a stronger legislative footing.”
6. 973. The CGT also recalls that domestic law provides for requisitioning for one reason only: protecting public order. Challenging the prefects’ interpretation of the law as expressed in the October 2010 prefectural orders, the complainant argues that these orders violate Conventions Nos 87 and 98, in that their only objective was to restore economic activity. The complainant quotes statements made by the Minister of the Interior, who said, “The only aim of this operation is to make the fuel stocks in this refinery available in order to meet the needs of the people of the Ile-de-France region.” The October 2010 requisitions do not comply with the definition in domestic law, let alone that of the ILO. The requisitioning of striking workers is only admissible when the strike is in an essential sector or in circumstances of the utmost gravity. The CGT points out that neither of these justifications was applicable to the October 2010 requisitions.
7. 974. Firstly, the complainant organization considers that the requisitions affected a sector that does not fall within the definition of essential services in the strict sense of the term. The CGT recalls that the Committee on Freedom of Association has indicated that requisitions can only be implemented when work stoppages take place in essential sectors. French legislation follows the Committee’s jurisprudence in this regard in that it limits the use of requisitioning to emergency situations that undermine peace, public health, public order and public safety. It also imposes the condition that prefects must be left with insufficient means to put an end to that situation, apart from the requisitions. The CGT points out that its complaint does not refer to the legislation itself, but the Government’s abusive interpretation of it in the orders issued by the prefects. The complainant regrets that the prefects made a direct link between maintaining economic activity and the notion of public order. By making that link, the prefects depicted the disruptions, which resulted from the strike, as themselves constituting a threat to public order in sectors that are “particularly crucial to maintaining economic activity”. According to the CGT, maintaining economic activity does not fall within the scope of public order. The complainant organization indicates that the main difficulty lies in the definition of public order, in so far as maintaining economic activity was turned into part of the public order remit.
8. 975. Moreover, the CGT regrets the fact that this abusive interpretation was validated by the Council of State in a judgement handed down on 27 October 2010. It recognized that “prefects may requisition the striking employees of a private company if its work is particularly important to maintaining economic activity, meeting the basic needs of the population or operating public services when the disturbances caused by the strike threaten public order, and the prefects may only take the necessary measures, as required by the emergency and proportionate to the requirements of public order”. The complainant notes that administrative justice therefore found requisitioning admissible for the purpose of maintaining economic activity, which is different from a situation in which it is necessary to meet the basic needs of the population or one in which the strike constituted a threat to public order. The complainant adds that it was not the administrative judge’s responsibility to determine how two fundamental freedoms – the right to strike and the freedom to do business – could coexist, but rather in this case, to decide whether exercising the right to strike, which is recognized as a fundamental freedom, undermined public safety, public health or even public order. Order relates to maintaining order on the streets and in public places, health relates to safeguarding public health, and safety relates to emergency services in case of accidents, human and natural disasters, fires, floods, armed attacks or terrorism. The complainant organization recalls that, during consideration of the draft law on requisitions, the new article L.2215-1 of the CGCT had been presented as “aiming to respond to emergency situations, such as natural disasters, or exceptional situations – industrial disasters, health risks, social emergencies – where the prefect is forced to use exceptional material means”. Noting that the grounds for some of the orders were weak, referring to disturbances, not breaches of public order, the complainant regrets that the Council of State found that mere disturbances were admissible grounds to justify requisitioning striking workers, when the law requires there to be a breach of public order. The CGT recalls that, since the very purpose of a strike is to cause a disturbance, the limitation on exercising the right to strike should be a breach of public order only, which was not the case in this instance.
9. 976. The complainant organization highlights the fact that the Committee’s jurisprudence has never included the storage, distribution, transport or transformation of fuel on its list of economic and industrial sectors that could possibly be subjected to restrictions on the exercise of the right to strike. On the contrary, the complainant recalls that the Committee has had to point out on several occasions that no restrictions could be imposed on those services without seriously violating the freedom of association guaranteed in Convention No. 87.
10. 977. The complainant recalls that the Committee on Freedom of Association has drawn up a list of services that can be considered essential and for which restrictions to the full exercise of strike action are applicable (in general, the establishment of a minimum service). The complainant notes that oil refineries and fuel production, transport and distribution, however, appear on the list of services on which no restriction to the exercise of the right to strike can be imposed. The Government should have limited the scope of the possible requisitions to the sectors identified by the Committee. But it reasoned that maintaining economic activity could also justify requisitioning. Such an abusive reading of the legal texts has enabled requisitioning to become more widespread, which constitutes a violation of freedom of association. Furthermore, the complainant considers that, by advocating the freedom to do business, the Government has exceeded its authority. Defending the freedom to do business, when the businesses in question are private companies, does not fall within the scope of public order.
11. 978. Although the complainant observes that the Committee on Freedom of Association finds requisitioning striking workers admissible when a State is facing “circumstances of the utmost gravity”, the complainant notes that there is nothing in the grounds for the prefectural back-to-work orders or the arguments the Government subsequently put forward to justify the requisitions that could be construed as “circumstances of the utmost gravity”. The workers’ strike in oil refineries in October 2010 clearly caused disruption, and the Government justified the requisitions by citing the situation at Roissy-Charles de Gaulle airport and, more generally, the situation in the Ile-de-France region. The complainant observes that, in this case, only one part of the national territory was affected by the disruption. Furthermore, the level of disruption adds nothing that would justify describing the situation last October as “circumstances of the utmost gravity”.
12. 979. In the case of Roissy-Charles de Gaulle airport, prefectural order No. SIDPC 2010303 of 22 October 2010 cited health risks, a lack of accommodation and food, and the risk of riots. In order to explain those risks, the prefectural order merely states that the airport is a transport hub, and would therefore not be equipped to accommodate all the passengers transiting through it, in the event that air traffic was brought to a standstill. The complainant observes that the seriousness of the risks cited in the prefectural order is alarming (health risks, a lack of accommodation and food, a risk of riots ...), despite the fact that there is no evidence to justify the existence of such risks. The complainant points out that the possibility that riots might break out because of the strike should have been more thoroughly justified by the authorities. By way of comparison, when the volcano erupted in Iceland, airports were closed, a huge number of flights were cancelled and passengers who were in transit were stranded. The disruption at that time was much more serious than in October 2010 and affected the whole of Europe. However, at no time was any mention made of a risk of rioting. The same is true for the potential accommodation and food issues faced by the stranded passengers; there was no indication that such risks existed, according to the complainant. The CGT also points out that, in general, as soon as the number of passengers stranded at an airport – for whatever reason – reaches the airport capacity saturation point, the authorities are expected to take all the necessary measures to prevent more passengers from arriving.
13. 980. The complainant therefore concludes that it is difficult to see how the work stoppage by the employees of the Grandpuits and Gargenville refineries could have endangered public order, when a much bigger crisis several months earlier had no effect on public safety. The complainant also points out that, on the contrary, the huge public support for the protests against the pension reform would eliminate any such risk. The level of public support for the protest against the pension reform is undeniable and remained huge until the strikes had ended. By way of example, the complainant recalls that some 3.5 million people attended the demonstration organized on 12 October, according to the press. Similarly, the opinion polls conducted during the protests showed that the protests enjoyed strong support from the public. In a poll carried out on 15 and 16 October 2010, 71 per cent of the French stated that they supported or had sympathy with the protests against the pension reform bill. The complainant alleges that, by requisitioning the striking workers, the Government very clearly intended to hinder the continuation of the protests; the hindrance was all the more symbolic since those involved were workers at oil refineries in Ile-de-France and the refinery workers’ strike was receiving a great deal of media coverage. The Government’s aim was therefore to put an end to the strike action at the refineries.
14. 981. The complainant also alleges that the prefectural orders cited the need to guarantee that emergency vehicles could be refuelled and, more generally, the risks related to difficulties with the fuel supply in Ile-de-France, in order to justify the requisitions. The complainant alleges that the prefects implemented such an exceptional measure despite the lack of any direct or indirect breach of public order. It recalls that, in this case, public order would only have been disrupted in as far as priority vehicles (ambulances, police ...) would not have been supplied with fuel. However, the complainant points out that the strikers themselves requested that measures be put in place to ensure that those vehicles would be refuelled. Furthermore, many service stations were still operating and prefectural decisions could have been taken to ensure they were used for refuelling those vehicles. In any case, had there been any threat to the refuelling of priority vehicles, it was the prefects’ responsibility to issue the necessary orders to organize priority fuel distribution for those vehicles. The CGT notes that, by contrast, the aim of the prefectural back-to-work orders was to restore the normal fuel supply for all vehicles in the Ile-de-France region, not put an end to extremely serious circumstances.
15. 982. The complainant is also astonished that risks related to traffic congestion on the roads were invoked in order to justify the requisitions. It recalls that traffic congestion on the roads is a persistent problem in Ile-de-France. The complainant points out that extremely heavy snowfall on the roads on the night of 8 to 9 December 2010, which resulted in motorists being stranded for several hours, did not lead the authorities to implement exceptional measures, even though it was not a question of a risk of congestion, but real congestion on the roads.
16. 983. The complainant points out that there were alternatives available to requisition, but they were never considered. The complainant cites the situation in another region (Eure) where a prefectural order was issued to organize fuel distribution to priority vehicles (prefectural order No. D5/B2/10-0052 of 21 October 2010). In that case, a list of the priority vehicles was drawn up, and the modalities for the fuel distribution were established. The complainant recalls that in Ile-de-France the strikers had requested that a mechanism be put in place for refuelling emergency vehicles, but the authorities’ objective was clearly to restore the fuel supply for all vehicles. The complainant recalls that, even in the case of an essential service, the Council of State has already had to sanction the authorities by suspending requisitions in the health sector owing to a lack of investigation into alternatives (decision No. 262186 of 9 December 2003). In its reasoning, the Council indicated that “by imposing such a general measure, without giving consideration to redeploying activities to other healthcare facilities or providing a limited level of service, and without investigating whether the essential needs of the population could be met in some other way, taking account of the health-care capacity in the department, the prefect had erred in law”. The complainant also regrets that the Council of State concluded in its decision of 27 October 2010, that, in order to be viable, the alternatives to requisitioning would have had to prove more effective than the requisitions themselves. Furthermore, in order to justify the requisitions, the Council of State suggested that the depletion of fuel reserves constituted a threat to airline safety, because of the risk that mistakes could be made in calculating the reserves. The complainant recalls that, in this case, there was never any threat to airline security because, in the event of a fuel shortage, flights are simply cancelled.
17. 984. In conclusion, the complainant alleges that the sole objective of the requisitions in October 2010 was the total restoration of economic activity. The Government cannot deny this, in the light of comments that have revealed its determination to restore normal fuel storage and distribution services, rather than providing a minimum service. The requisitions therefore aimed, not to put an end to a crisis in an essential service, but to prevent the continuation of strike action in oil refineries that do not provide an essential service in the strict sense of the term. This political objective and the administrative measures taken by the prefects seriously violate fundamental ILO Conventions Nos 87 and 98.

B. The Government’s reply

1. 985. The Government sent its observations in a communication dated 3 June 2011. Firstly, the Government recalls that, in France, 2010 was a year marked by the reform of the pension system. After the official announcement in February 2010, consultations with the social partners began in April 2010. The pension reform bill was first considered in the National Assembly on 7 September 2010 and it was finally adopted on 27 October 2010, before being promulgated by the President of the Republic. Act No. 2010-1330 of 9 November 2010 was published in the Official Gazette on 10 November 2010. The Government points out that the preparation of the Act met with protests throughout 2010, particularly the days of protest organized by several different professions. The prospect of Parliament adopting the Act resulted in an upsurge in protest at the beginning of October 2010. Nationwide turnout for the one-day strike on 12 October 2010 was between 1.23 million, according to the Ministry of the Interior, and 3.5 million, according to the unions. The one-day strike on 28 October 2010 was less forceful, with a turnout of between 556,000 according to the Ministry of the Interior and 2 million according to union sources. The protests continued in November.
2. 986. According to the Government, the protests took the form of strikes and blockades in companies in several sectors, including the oil sector, with mainland France’s 12 oil refineries blockaded by renewable strikes. The Government explains that, faced by the risk of a national energy crisis, the authorities had to requisition striking workers in three cases: in the Grandpuits refinery (Seine-et-Marne); in the fuel depots in Donges (Loire-Atlantique);and Gargenville (Yvelines). The requisitions were decided under prefectural orders pursuant to article L. 2215-1, paragraph 4, of the CGCT (CGCT), which provided that: “in an emergency, when required by a real or foreseeable breach of the peace, public health, public order and public safety and when the means at the prefect’s disposal no longer allow him to pursue the objectives for which he has powers of enforcement, he may, by means of an order setting out the grounds for the decision, and for all the communes in the department or several or one of them only, requisition any good or service, requisition all persons needed for that service to function or that good to be of use and prescribe all appropriate action until the breach of the peace has come to an end or the conditions to maintain public order are in place. The order setting out the grounds for the decision establishes the nature of the requisitioned services, the duration of the requisition measures and the modalities of its application.”
3. 987. With regard to the department of Yvelines, a prefectural order of 22 October 2010 requisitioned some of the striking workers at the Gargenville fuel depot (order No. SIDPC 2010-303) for six days. The Gargenville depot supplies fuel to Roissy-Charles de Gaulle airport, which has a daily fuel consumption of 15,000 m3. At the time of the requisition, the airport was not supplied by any other source. Since the strike had lasted so long, on the day the back-to-work order was issued, the airport had fuel reserves for only three more days; supplying Roissy from Gargenville requires a minimum of three days to process and deliver the fuel needed for the aircraft. On 21 October 2010 at 6 p.m., the day before the order was issued, there were useable fuel stocks for only a few days, and a four-day period is required before each delivery is available. The process involves filling an 18,000 m3 tank, monitoring the fuel in that tank, then transferring it into a dispenser tank. According to the Government, these figures demonstrate how urgent it was to mobilize the fuel stocks that were available at the Gargenville depot.
4. 988. The Government points out that the Roissy-Charles de Gaulle hub is not equipped, should air traffic come to a halt, to host all the passengers who transit through it, since there is not enough hotel accommodation at the airport and in the surrounding area (over 5 million passengers per month and about 600,000 between Monday, 18 October and the evening of Thursday, 21 October 2010, 70 per cent in transit, without any accommodation). The Government was therefore keen to ensure that the airport continued to provide a public service and avoid the risks of endangering public order because of a lack of hotel accommodation (particularly the risk of passengers in turmoil, with no accommodation, health risks in the event of a massive influx of passengers, given that the airport’s capacity to accommodate and feed people is insufficient and the dates of the strike coincided with the beginning of the holiday period).
5. 989. Taking up the example cited by the complainant organization, the Government points out that, when flights were interrupted because of the Icelandic volcano eruption and even though European airspace was closed and there were very few passengers, the prefect for the security and safety of the Roissy-Charles de Gaulle and the Bourget airport hubs had to requisition two gymnasiums in order to accommodate the transit passengers, owing to the shortage of hotel accommodation at Roissy airport. Such a situation would have been both impossible and unacceptable with the number of travellers who normally transit through Roissy.
6. 990. The Government adds that a fuel shortage has a direct effect on airline security since companies, particularly crews, have to take account of the situation in their routing calculations, bearing in mind the available reserves. An error in calculation can result in an aeroplane in distress, or even a crash because it runs out of fuel. In that regard, even though the Directorate-General of Civil Aviation (DGAC) had sent detailed instructions to the airline companies for them to fill up with fuel outside French territory, the situation was disruptive to the internal organization of companies operating in France with the risk of human error when calculating the fuel reserves for one flight or another.
7. 991. Furthermore, the Government states that there is a need to guarantee the fuel supply for emergency vehicles, those used for home care, to deliver pharmaceutical and medical products and to maintain public order. In this respect, the Government points out that the Gargenville depot constituted a strategic delivery point for the department’s service stations, particularly because the strike was affecting the other depots. The Government points out that, on the day the back-to-work order was issued for the Gargenville site, the fuel shortage in the Ile-de-France area had reached a critical point: 43 per cent of the Ile-de-France service stations had run out of fuel completely, and 29 per cent were in great difficulty, which was seriously affecting the area’s public services operations. The Government states that the situation reached the stage where several public transport companies in the suburbs and refuse collection vehicles were unable to function. Basic services (emergency, rescue, home care, public order maintenance) were no longer guaranteed. The Government recalls that fuel shortages have a direct and indirect effect on traffic and road safety, as exemplified by the vehicles abandoned on the roads near the airports and the queues of tankers surrounding the fuel depots.
8. 992. The Government notes that all the reasons it has indicated led the prefect of Yvelines to take appropriate measures to contain the public order unrest that was occurring at the time and any future trouble resulting from the fuel shortage, bearing in mind that at the time the order was issued, none of the other depots in the Ile-de-France area had yet to be requisitioned. The back-to-work order was therefore well within the scope of article L. 2215-1, paragraph 4, of the CGCT, as the Versailles urgent applications judge has acknowledged, as have the urgent applications judges in Nantes (orders of 22 and 25 October 2010-PJ 2 and 3), and Melun (orders of 22 and 25 October 2010-PJ 4 and 5).
9. 993. The Government emphasizes that, having examined the basis of article L. 521-2 of the Administrative Code of Justice – which enables administrative judges to make urgent, provisional rulings and order any measure necessary to protect a fundamental freedom faced with a serious and manifestly illegal violation by the authorities – the urgent applications judge at the Versailles administrative court rejected the applicants’ appeal in an order of 23 October 2010. He ruled that, while taking account of the fact that the disputed requisition constituted a limitation to the exercise of the right to strike, which is a fundamental freedom, the back-to-work order was not manifestly illegal. The applicants appealed this decision before the urgent applications judge of the Council of State. He reviewed the extent to which the requisition was in conformity with the principles of necessity and proportionality and noted the absence of alternative solutions that were available immediately and would have been equally effective, then confirmed the refusal to suspend the requisition.
10. 994. With regard to the department of Seine-et-Marne, the Government indicates that the prefect issued a series of back-to-work orders for workers at the Total refinery in Grandpuits on 17 October 2010 in order to ensure security at the refinery and during deliveries (prefectural orders Nos 138/DSCS/SIDPC to 170/DSCS/SIDPC of 17 October 2010 concerning requisition of services). The Grandpuits refinery supplies several distribution points in Ile-de-France and Seine-et-Marne. The fact that production had stopped in several refineries for over a week had prevented deliveries to service stations, and a number of them had completely run out of fuel or were in great difficulty. It was therefore necessary to guarantee the fuel supply for emergency vehicles, those used for home care, to deliver pharmaceutical and medical products and to maintain public order. Public transport was no longer operating. According to the Government, the situation was likely to give rise to serious public order disturbances (queues causing traffic problems, tension at service stations) and, given that there was a nationwide shortage, no other supply sources in the department could be mobilized quickly. The Government points out that the back-to-work orders were withdrawn the following day under a prefectural order (prefectural order No. l82/DSCS/SIDPC concerning the withdrawal of prefectural orders).
11. 995. The Government explains that a new prefectural order was issued on 22 October (prefectural order No. 183/DSCS/SIDPC), but was suspended the same day by the Melun administrative court in Seine-et-Marne. In this case, the judge considered that the order “was a serious and manifestly illegal violation of the right to strike and its implementation must therefore be suspended”. The judge reproached the prefect of Seine-et-Marne for having “requisitioned nearly the entire staff of the refinery, resulting in almost normal service, rather than the minimum service required to ensure public order and safety” (Melun administrative court, 25 October 2010, CGT et al. v. The Prefect of Seine-et-Marne, urgent application). New prefectural orders were issued on 22 October (prefectural order No. 185/DSCS/SIDPC), 23 October (prefectural order No. 186/DSCS/SIDPC), 24 October (prefectural order No. 187/DSCS/SIDPC) and 26 October (prefectural order No. 188/DSCS/SIDPC). The urgent application filed against the order of 24 October was rejected by the Melun administrative court on 25 October. According to the judgement, the strike, which had been under way since 12 October 2010, was seriously compromising petrol supplies for emergency services vehicles. It was not apparent from the judgement that the prefect had any other means of obtaining the desired result, and only 14 workers out of the approximately 170 concerned were requisitioned, without any allegations that the number was excessive in relation to the tasks that needed to be performed. The judge concluded that the prefectural order did not seem disproportionate to the extent that it constituted a grave and clearly illegal violation of the right to strike (Melun administrative court, urgent application, 25 October 2010).
12. 996. Furthermore, the Government points out that, on 22 October 2010 in the Loire-Atlantique region, the Nantes administrative court rejected the urgent application filed by four workers from the Donges-Melun-Metz (SFDM) depot in Donges contesting the back-to-work order issued by the prefect, which they claim violated their right to strike. The judges considered that: “by issuing back-to-work orders for only four workers and by putting the contested provision in place, the intention and effect of which were not to ensure that the depot functioned normally but rather to prevent serious disruption to the provision of energy throughout the country, the prefect of Loire-Atlantique did not disproportionately threaten the right to strike, given the urgent needs that had to be met in western France” (Nantes administrative court, 22 October 2010, No. 1007766).
13. 997. According to the Government, the context in which the prefect issued the requisitioning orders was cited as a reminder of the scale of the blockades in the oil sector, where the strike, which began on 12 October 2010, continued in ten out of 12 refineries from 14 October and would affect all refineries by 25 October. Many fuel depots and oil terminals were blocked from 12 October. In that regard, the Government specifies that an inter-ministerial crisis unit to ensure “sustainable petrol restocking” was established on 11 October and became active on 18 October 2010.
14. 998. The prefectural orders requisitioning the striking workers were issued in an emergency situation, in which there was a widespread and sustainable blockade to fuel provisions. The first requisition orders were issued five days after the refinery blockades had begun in the case of the Grandpuits refinery in Seine-et-Marne, and more than a week later in the case of the fuel depots in Gargenville in Yvelines and Donges in the Loire-Atlantique region. According to the Government, those back-to-work orders were issued to keep public order, which was being threatened by the scale and persistence of the blockades of oil depots and refineries. The orders, by choice, only requisitioned a limited number of workers and were intended not to cause an excessive threat to the right to strike.
15. 999. Regarding the analysis of the prefectural orders to establish whether or not they were in line with domestic law and with regard to ILO Conventions, the Government points out that the latter respond to the requirements set by article L. 2215-1, paragraph 4, of the CGCT. They are therefore in line with domestic law and respect the principles enshrined in Conventions Nos 87 and 98 with regard to freedom of association and collective bargaining. The Government recalls that in France the right to requisition workers is only allowed in exceptional circumstances, in the event of an actual or potential disturbance of public order. It also respects, de facto, the right to strike and to freedom of association, in accordance with the recommendations of the Committee on Freedom of Association which grant recourse to requisition in the most serious circumstances, or for essential services.
16. 1000. Regarding the interpretation of French law on the issue of requisition, the Government points out that, contrary to the allegations made by the CGT, which state that the requisition orders of October 2010 were issued on the basis of a misinterpretation of French law, including through establishing a direct connection between maintaining economic activity and the notion of public order, the prefectural requisition orders expressly focused on public order, with particular emphasis on re-establishing the provision of fuel for care and security vehicles. In that regard the Government recalls that article L. 2215-1, paragraph 4, of the CGCT is the legal basis for the right to prefectural requisition in France, which defines the notion of public order as “in an emergency, when required by a real or foreseeable breach of the peace, public health, public order and public safety ... the prefect ... may, by means of an order setting out the grounds for the decision ..., requisition any good or service, requisition any persons needed for that service to function or for that good to be of use ...”. Requisition is therefore connected with public order, including public safety, peace and security. French jurisprudence sets out the conditions for implementing a prefectural requisition as a means of maintaining public order. The National Council also considered that “while the prefect, under his or her authority as provided for under article 2215-1, paragraph 4 of the CGCT, can legally requisition striking workers …. He or she can only take the measures necessary in an emergency and proportionate to the needs of public order, including public health requirements” (National Council, 9 December 2003, No. 262186).
17. 1001. According to the Government, the examination of prefectural orders shows that their primary focus was on maintaining public order, and in particular preventing threats to public safety and security. They are therefore not intended to maintain economic activity, as the complainant organization states. The decisions issued by administrative judges, on urgent petitions, support that conclusion. In this regard, the Melun administrative court based its decision to reject the petition to suspend the implementation of the order issued on 24 October 2010, recalling that “the strikes by fuel refinery and depot workers in France, and particularly the strike affecting the Total depot at Grandpuits in Seine-et-Marne ... are seriously compromising the provision of fuel for emergency services vehicles” and “the wording of the order itself states that the measures it provides for are intended solely to ensure the provision of that fuel as a matter of priority, with no other fuel production or distribution”.
18. 1002. The Government adds that the examination of prefectural orders and decisions issued by the administrative judge also serve to show that the requisitioning orders have an intentionally limited scope in terms of the duties that the requisitioned workers are required to perform. These administrative measures are therefore not intended to resume normal functions at the oil sites in order to maintain economic activity, as the complainant would suggest. Intentional limits on the tasks that the requisitioned workers are asked to perform are specifically mentioned in the order issued by the prefect of Seine-et-Marne, No. 187/DSCS/SIDPC, which states that: “the requisitions are not intended for the production of new crude oil products, but rather the use of the refinery’s existing stocks”. Order No. 188/DSCS/SIDPC issued by the prefect of Seine-et-Marne is just as specific, stating that: “the scope of the requisitions is not intended for the production of new crude oil products, but rather to receive diesel from the enterprise SFDM by pipeline, stock it and mix it”. In that regard, the administrative judge also checked the legality of the prefectural requisition orders by measuring the importance of the tasks to be fulfilled by the requisitioned workers. The administrative court of Nantes thus considered that the requisition of workers from the Donges depot was not intended to ensure business as usual at the site. On the contrary, the Nantes administrative court suspended the order issued on 22 October 2010 by the prefect of Seine-et-Marne, No. 183/DCSC/SIDPC, on grounds that “by requisitioning almost all the staff of the Total refinery at Grandpuits ... the order resulted in the resumption of almost normal service, rather than the minimum service required to ensure public order and safety”.
19. 1003. The Government also emphasizes that the prefectural orders being contested only ordered the requisition of a limited number of refinery staff. In this regard, the orders specifically stated that the limited number of persons requisitioned responded to the strict need to reestablish public order and did not constitute an excessive restriction to the right to strike. By way of an example, the Government refers to order No. 187/DSCS/SIDPC issued by the prefect of SeineetMarne, requisitioning staff of the Total refinery in Grandpuits, which requisitioned seven workers per watch team, whereas a normal service for the production and dispatch of super unleaded 95, super unleaded 98 and diesel generally requires three 14-person teams working in eight-hour shifts. In reality, this order requisitioned 23 of the 400 workers employed by the refinery. Similarly, the order issued by the prefect in Yvelines, No. SIDPC 2010-303, dated 22 October 2010 ordering the requisition of workers of the Gargenville oil depot, called for three workers per watch team, which was equivalent to “14 per cent of the total staff of the site”. In Loire-Atlantique the prefectural requisitions pertained to four workers, while the SFDM site in Donges has a total of more than 30 employees.
20. 1004. The Government points out that the orders also respected the principle of proportionality with regard to the duration of requisitions. In that regard, the order issued by the prefect of Yvelines, No. SIDPC 2010-303, dated 22 October 2010, is “binding for a period of six days, from the day of issuance” (article 2), the order issued by the prefect of Seine-et-Marne, No. 187/DSCS/SIDPC, dated 24 October 2010, is “binding from Monday, 25 October 2010 at 6 a.m. until Tuesday, 26 October at 10 p.m.” (article 2), and the final requisition order, No. 188/DSCS/SIDPC, issued by the prefect of Seine-et-Marne is “binding from Tuesday, 26 October 2010 at 3.30 p.m. until Friday, 29 October 2010 at 10 p.m.” (article 2).
21. 1005. Regarding the reference to the notion of essential services, in the strict sense of the term, as it appears in recommendations issued by the Committee on Freedom of Association, the Government takes note of the fact that, according to the Digest of decisions and principles of the Freedom of Association Committee, the right to strike can be restricted or even prohibited … in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It also notes that the Committee suggests two lists, one of services that can be considered essential, and the other of services that are not essential services in the strict sense of the term, which includes oil facilities, and the production, transportation and distribution of fuels. Lastly, it points out that the Committee stipulates that the notion of “essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population.”
22. 1006. In the Government’s opinion, the concept of “essential services” should not be applied during labour disputes without considering the impact of the strike on the life and personal safety or health of all or part of the population. According to the Government, therefore, the prefectural requisition orders issued in October 2010 respect the recommendations made by the Committee, since the total and prolonged stoppage of work in the oil sector caused disturbances to the refuelling of security and emergency services vehicles, which are “essential services” in the strict sense of the term, resulting in a risk to the security and health of part of the population. The statement made by the CGT that oil facilities are not included on the list of “essential services” is not sufficient grounds on which to deem the requisitions illegal. The Government also emphasizes that a week after the strike began, the National Union of Nurses (SNIIL) stated that, “in at least 17 departments the provision of patient care at home could no longer be guaranteed”.
23. 1007. Moreover, the Government observes that the Committee pointed out that “whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation”. The Government considers that the oil sector, while not an “essential service” in the strict sense of the term, is, however, an important sector of the economy. In that regard, the prefectural requisition orders issued in October 2010 in respect of that important sector, owing to the risks that the blockades would incur for “essential sectors” in the strict sense of the term, fell well within the context defined by the Committee.
24. 1008. Describing the context of October 2010 as “circumstances of the utmost gravity”, the Government observes that the complainant bases its argument on the situations at Roissy-Charles de Gaulle Airport and in the Ile-de-France region, which played a significant role in motivating the prefect of Yvelines to issue back-to-work order No. 2010-303, requisitioning striking workers from the Gargenville refinery. The complainant considers that the context could not be categorized as “circumstances of the utmost gravity”, which would have justified the requisition of striking workers. The Government recalls that the Committee on Freedom of Association considered that “the use of the military and requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitutes a serious violation of freedom of association”. The Government states that the prefectural requisition orders issued in October 2010 were not intended to break the strike. All of the back-to-work orders were of limited duration, and intentionally restricted the number of workers they requisitioned, not all of whom were even striking. In reality, the prefectural requisition orders only applied to a limited number of oil sites: of the 12 refineries in France only two received requisition orders, which were of a limited scope. It is therefore difficult to believe that these requisitions broke the entire strike, which was also being held at other oil sites.
25. 1009. Regarding the complainant organization’s opinion that the “risk of riots” at Roissy-Charles de Gaulle airport was unfounded, that the refuelling of priority vehicles was not under threat and that the risk of the main roads in the region becoming congested owing to problems of fuel supplies in service stations was not manifest, the Government states that the prefectural requisition orders were issued in anticipation of the risk of a threat to public order, as provided for under article L. 2215-1, paragraph 4, of the CGCT, with the aim of reducing potential difficulties caused by widespread and sustained blockade of the country’s oil sites. Action in anticipation of threats to public order precludes an a posteriori evaluation of the degree of unrest that the strikes and blockades could have caused, since its very aim is to prevent that unrest. It is therefore unjustified to compare unforeseen situations that have had specific and unpreventable consequences, with the repercussions of the strikes in the oil sector, the consequences of which were prevented by the issuing of prefectural requisitioning orders.
26. 1010. Regarding the complainant’s allegations that the Government did not seek alternatives to requisition, particularly the requisition order issued by the prefect of Yvelines, No. 2010303, which did not provide for alternative measures like those taken in the department of Eure, where a list of priority vehicles was drawn up, the Government points out that the order in question was not a proper alternative, since it prioritized access to fuel, rather than the restocking of fuel distribution points. The Government also states that the widespread and sustained blockade restricted the prefects’ opportunities to put alternative measures to requisitions in place. Furthermore, the Government stipulates that the prefectural requisition orders issued in October 2010 specifically mentioned efforts to seek alternative solutions to requisition to ensure refuelling and referred to the fact that a widespread and sustained blockade of the oil sites concerned was unacceptable. In that regard, the orders were strictly in line with article L. 2215-1, paragraph 4, of the CGCT, pursuant to which “… when … the means at the prefect’s disposal no longer allow him to pursue the objectives for which he has powers of enforcement, he may, by means of an order setting out the grounds for the decision requisition any good or service ...”. The Government thus recalls that order No. SIDPC 2010-303 of 22 October 2010, issued by the prefect of Yvelines, justifies the requisition of workers at the Gargenville site by stating that “the strike is affecting other depots”. Similarly, the Seine-et-Marne prefectural order No. 187/DSCS/SIDPC, dated 24 October 2010, observes that “ceasing production in several refineries in France for more than a week is preventing fuel supplies from reaching service stations, many of which are currently completely out of stock while others are running very low; given the latent shortage across the country no other source of fuel supply can be mobilized quickly in the department”.
27. 1011. The Government adds that the administrative judge sought alternative measures. By way of example, the Government refers to the Nantes administrative court, which evaluated the legality of the prefectural order requisitioning workers from the Donges fuel depot, noting that the prefect did not have any alternative solutions: “the plea that the prefect of Loire-Atlantique should have, prior to issuing the requisition order under dispute, ordered the requisition of the aforementioned stations and put other measures in place to enable litigious requisition can only be dismissed, given the shortages that the prefectural authorities were faced with, owing to consumer trends” (Nantes administrative court, judgement dated 22 October 2010).
28. 1012. The Government states that the national movement against pension reform continued into the month of November, with days of inter-professional action organized on 6 and 23 November, and with strikes and blockades in several other economic sectors. The drop in mobilization resulted more from the adoption of the pension reform law and its publication on 10 November 2010, than on requisition orders issued in the oil sector in October.
29. 1013. Given the explanations provided, the Government states that it is neither demonstrated nor proven that the prefectural requisition orders issued against striking workers in the oil sector during the industrial action in October 2010 against pension reform infringe the provisions of ILO Conventions Nos 87 and 98, to which France is party.

C. The Committee’s conclusions

1. 1014. The Committee notes that the complaint submitted by the CGT denounces the requisition of staff in the oil sector during a strike in October 2010.
2. 1015. The Committee notes that, according to the information provided by the complainant organization and the Government, there was a considerable national movement in France during 2010, in protest against pension system reform. The reform, which was announced in February 2010, was the subject of consultations between the social partners, which began in April 2010, and a pension reform bill, which was presented to the National Assembly on 7 September 2010: the bill was adopted on 27 October 2010, enacted as Act No. 2010-1330 of 9 November 2010, and published in the Official Gazette on 10 November 2010. The Committee observes that the drafting of the Act had met with protest throughout 2010, culminating in the organization of days of inter-professional action, which increased nearer the time of the adoption of the bill by parliamentarians in October 2010. Nationwide turnout for the one-day strike on 12 October 2010 was between 1.23 million, according to the Ministry of the Interior, and 3.5 million, according to the unions. The Committee notes that the protest movement was joined by all sectors, and received large-scale public support.
3. 1016. The Committee notes the allegation that, when faced with workers who were exercising their right to strike during the days of industrial action, the Government’s attitude was irresponsible on several counts: it refused to enter into any negotiations with trade union organizations; it tried to weaken the industrial action; and it abused its power to requisition striking workers, particularly in the oil sector, one of the most active sectors in the protests. The Committee points out that, according to the complainant, the requisitions had two objectives: maintaining economic activity by minimizing the impact of the strikes, and putting a stop to the national protests.
4. 1017. The Committee notes the complainant organization’s statement that, through a number of orders, including orders Nos 183/DSCS/SIDPC and SIDPC 2010-303 of 22 October 2010, the prefects of Yvelines and Seine-et-Marne ordered the requisition of most of the striking workers from the fuel depot in Gargenville and the Grandpuits refinery. According to the complainant organization, those requisitions were intended to ensure the fuel restocking in the Ile-de-France region and, more specifically, at Roissy-Charles de Gaulle airport.
5. 1018. The Committee notes the statement that the workers concerned, as well as the trade unions, tried to obtain, through an urgent application to the administrative judge, the suspension of the requisition orders, which, they said, constituted violations of their right to strike. The Committee notes that the administrative judge and, in particular, the highest administrative legal authority, through order No. 343966 issued on 27 October 2010, did not grant that appeal and forced the workers to return to work. According to the CGT, the Council of State seems to have been influenced by an alarmist presentation of the facts by the Office of the Public Prosecutor, which could not be contested since the urgent application procedure does not allow for a thorough investigation to be conducted.
6. 1019. The Committee notes that, according to the complainant, the conditions set in national law for the issuing of requisitions were not respected. The complainant recalls that requisitions are highly regulated in French law and that, under the terms of the CGCT, the law applicable under these circumstances, striking workers can be requisitioned only under the following conditions: “in an emergency, when required by a real or foreseeable breach of the peace, public health, public order and public safety and when the means at the prefect’s disposal no longer allow him to pursue the objectives for which he has powers of enforcement, he may, by means of an order setting out the grounds for the decision, and for all, several or only one of the communes in the department, requisition any good or service, requisition all persons needed for that service to function or that good to be of use and prescribe all appropriate action until the breach of the peace has come to an end or the conditions to maintain public order are in place” (article L. 2215-1, paragraph 4). The Code also stipulates that: “the order setting out the grounds for the decision establishes the nature of the requisitioned services, the duration of the requisition and how it will be carried out”. In this regard, the Committee notes that, in the opinion of the complainant, national law provides for requisitions with one singular aim: to protect public order.
7. 1020. The Committee notes that the complainant challenges the prefects’ interpretation of the law as expressed in the October 2010 prefectural orders, and that it states that those orders violated Conventions Nos 87 and 98 in that their only objective was to restore economic activity. The Committee observes that the complainant reports that statements were made by the Minister of the Interior, who said, “the only aim of this operation is to make the fuel stocks in this refinery available in order to meet the needs of the people of the Ile-de-France region”.
8. 1021. The Committee notes furthermore that, according to the complainant, the requisitions affected a sector that does not fall within the definition of essential services in the strict sense of the term, and in which a requisition would be ordered when there was not a public order emergency. In this regard, the complainant organization points out that French legislation is in line with the Committee’s jurisprudence, in that it prescribes the use of requisitions in emergencies where there is a breach of the peace, where public safety, peace and security are threatened, and on the condition that the prefects have no means at their disposal, other than requisition, to bring an end to that threat.
9. 1022. The Committee notes that the complainant does not take issue with the domestic laws per se, but rather with the Government’s misinterpretation thereof, which is manifested in the orders issued by the prefects. According to the complainant, the prefectural orders were in fact issued to meet concerns about maintaining economic activity in the region, which is not the same as a situation in which it is necessary to meet the basic needs of the people, or one in which a strike constitutes a threat to public order. The complainant regrets that the prefects established a direct link between maintaining economic activity and the notion of public order. The prefects presented the disruptions arising as a result of the strike as constituting a threat to public order in sectors that are “particularly important for maintaining economic activity”. Furthermore, according to the CGT, maintaining economic activity does not fall within the scope of public order. The complainant points out that the main problem lies in the definition of public order, and in the understanding of maintaining economic activity as an issue of public order.
10. 1023. The Committee notes that the complainant regrets the fact that this misinterpretation was validated by the judicial authorities, including the Council of State, which recognized, in order No. 343966, issued on 27 October 2010, that “the prefect may requisition striking workers from a private enterprise the activities of which are particularly important for maintaining economic activity, meeting the basic needs of the population, or ensuring the function of public services during disturbances resulting from the strike, which present a threat to public order. He may only take measures that are necessary, required by the emergency situation and proportionate to the requirements of public order”. The Committee notes that, according to the CGT, given that the very purpose of a strike is to create a disturbance, restrictions should only be imposed when there is a threat to public order, which was not the case in this instance. The Committee also notes the CGT’s opinion that it is not for the administrative judge to decide how two fundamental freedoms – the right to strike and the freedom to do business – could coexist, but rather, in this case, to determine whether exercising the right to strike, which is recognized as a fundamental freedom, was threatening public security, safety or peace.
11. 1024. The Committee notes that, while it admits that the October 2010 strikes clearly resulted in disturbances, the complainant nevertheless points out that the Government used the situation at Roissy-Charles de Gaulle airport, and more generally the situation in the Isle-de-France region, to justify its requisition measures in various fuel depots and oil refineries. The complainant also emphasizes that, in this instance, only part of the national territory was affected by the disturbances and that, furthermore, the impact of those disturbances could not be defined as “circumstances of the utmost gravity”, allowing for requisitions.
12. 1025. The Committee notes the statement, according to which, prefectural requisition order No. SIDPC 2010303, dated 22 October 2010, described the situation at Roissy-Charles de Gaulle airport as posing risks to public security, lack of accommodation and food, and a risk of riots. The complainant expresses surprise that although the order cites such alarming risks, it merely states that the airport is a transport hub, and would therefore not be equipped to accommodate all the passengers transiting through it, in the event that air traffic was brought to a standstill. The complainant emphasizes that there is no evidence of the existence of such risks, and refers to the eruption of the volcano in Iceland as an example of a situation in which several European airports closed, a large number of flights were cancelled and transiting passengers remained stranded. These disturbances were considerably greater than those in October 2010; however, at no point was there ever a threat of rioting, and potential accommodation and food shortages for stranded passengers were never mentioned. It is therefore difficult to see how a strike by workers from Grandpuits and Gargenville could endanger public order, while a much greater crisis a few months earlier had no effect on public security whatsoever.
13. 1026. The Committee notes that the complainant also denounces the fact that the prefectural orders invoked the need to guarantee refuelling for emergency services vehicles and, more generally, the risks connected with fuel supply problems in Ile-de-France, to justify the requisitions. According to the CGT, the prefects invoked that exceptional measure despite the lack of any direct or indirect threat to public order, since, in this particular case, there was no evidence that priority vehicles (ambulances, police cars ...) would not have been supplied with fuel, particularly since the strikers themselves had requested that measures be taken to ensure those vehicles were refuelled. The Committee notes that, according to the CGT, many service stations were still operating, and prefectural orders could have been issued to ensure that fuel was supplied for those vehicles. In any case, the prefectural requisitioning orders were issued with the intention of restoring a normal fuel supply for all vehicles in Ile-de-France, rather than putting an end to an extremely serious situation.
14. 1027. The Committee notes the statement that alternatives to requisition were available, but were never considered by the Government. As an example, the complainant refers to the situation in another region (Eure), where a prefectural order was issued to ensure that fuel was distributed among priority vehicles. The complainant denounces the fact that by requisitioning striking workers, the Government very clearly impeded large-scale industrial action, which was made even more significant by the fact that this refers to workers from oil facilities in Ile-de-France and that the refinery worker strikes received considerable media coverage. The Government’s intention, therefore, according to the CGT, was simply to put a stop to the strikes in the refineries.
15. 1028. The Committee observes that, from its point of view, the Government rejects the allegations made by the complainant, according to which the requisition orders issued in October 2010 were based on a misinterpretation of French law, particularly in that they established a direct link between maintaining economic activity and the notion of public order. According to the Government, the prefectural requisition orders were specifically intended to ensure that public order was maintained, particularly through the resumption of fuel provision for care and security vehicles. In that regard, the Government confirms that article L. 2215-1, paragraph 4, of the CGCT constitutes the legal basis for prefectural requisition in France, and defines the notion of public order. The Committee notes that requisition aims to maintain public order, including public safety, peace and security. Furthermore, the administrative judge stipulated the conditions for applying a prefectural requisition order to maintain public order, stating that “while the prefect, in the context of the authority granted him under article L. 2215-1, paragraph 4, of the CGCT can legally requisition striking workers … he can only take the measures necessary in an emergency and proportionate to the needs of public order, including public health requirements” (order No. 262186 of the Council of State, dated 9 December 2003).
16. 1029. The Committee notes that, according to the Government, the examination of the prefectural orders shows that they were intended to maintain public order, including the prevention of threats to public safety and security. The decisions issued by administrative courts, in urgent applications, supported that analysis. In that regard, the Committee observes that the administrative court of Melun decided to reject the request for the suspension of the prefectural order of 24 October 2010, recalling that “the strikes by fuel refinery and depot workers in France, and particularly the strike affecting the Total depot at Grandpuits in Seine-et-Marne ... are seriously compromising the provision of fuel for emergency services vehicles” and “the wording of the order itself states that the measures it provides for are intended solely to ensure the provision of that fuel as a matter of priority, with no other fuel production or distribution”.
17. 1030. Moreover, the Committee notes that the examination of the prefectural orders and administrative court decisions also shows that the requisitions had a limited scope in terms of the duties that the requisitioned workers were required to perform. Those administrative measures were therefore not intended to resume normal functions at the oil sites. Intentional limits on the types of duties that requisitioned workers were asked to perform were specifically mentioned in order No. 187/DSCS/SIDPC issued by the prefect of Seine-et-Marne: “the requisition is not intended for the production of new crude oil products, but rather for the use of the refinery’s existing stocks”. Order No. 188/DSCS/SIDPC issued by the prefect of Seine-et-Marne is just as specific: “the requisitions are not intended for the production of new crude oil products, but only to receive diesel from the enterprise SFDM by pipeline, stock it and mix it”. The Committee notes that both the complainant and the Government refer to the assessment made by the administrative judge during the examination of how important the tasks were that workers were requisitioned to fulfil. They both referred to the decision by the Nantes administrative court to suspend order No. 183/DCSC/SIDPC of 22 October 2010, issued by the prefect of Seine-et-Marne, on grounds that, “by requisitioning almost all the staff of the Total refinery at Grandpuits … the order resulted in the resumption of almost normal services, rather than the minimum service required to ensure public order and safety”.
18. 1031. The Committee also notes that the other prefectural orders being contested only ordered the requisition of a limited number of refinery staff. In that regard, the orders specifically stated that the limited number of persons requisitioned responded to the strict need to re-establish public order and did not constitute an excessive restriction to the right to strike. Order No. 187/DSCS/SIDPC issued by the prefect of Seine-et-Marne, on the requisition of staff of the Total refinery in Grandpuits, requisitioned seven workers per watch team, whereas normal service for the production and dispatch of super unleaded 95, super unleaded 98 and diesel comprises three teams of 14, working in eight-hour shifts. The Committee notes that, according to the Government, that prefectural order resulted in the requisition of 23 of the 400 workers employed by the refinery. Moreover, according to the Government, order No. SIDPC 2010-303 issued on 22 October 2010 by the prefect of Yvelines on the requisition of workers of the Gargenville oil depot requisitioned three workers per watch team, which was equivalent to “14 per cent of the total staff of the site”. Lastly, in Loire-Atlantique, the prefectural requisitions pertained to four workers, while the SFDM site in Donges has a total of more than 30 employees.
19. 1032. The Committee also notes the statement according to which the orders respected the principle of proportionality with regard to the duration of the requisitions. In that regard, the order issued by the prefect of Yvelines, No. SIDPC 2010-303, dated 22 October 2010, is “binding for a period of six days, from the day of issuance” (article 2), the order issued by the prefect of Seine-et-Marne, No. 187/DSCS/SIDPC, dated 24 October 2010, is “binding from Monday, 25 October 2010 at 6 a.m. until Tuesday, 26 October at 10 p.m.” (article 2), and the final requisition order, No. 188/DSCS/SIDPC, issued by the prefect of Seine-et-Marne is “binding from Tuesday, 26 October 2010 at 3.30 p.m. until Friday, 29 October 2010 at 10 p.m.” (article 2).
20. 1033. The Committee notes that, in the Government’s opinion, the concept of “essential services” should not be applied in labour disputes without considering the impact of the strike on the life and personal safety or health of all or part of the population. According to the Government, therefore, the prefectural requisition orders issued in October 2010 respect the recommendations made by the Freedom of Association Committee, since the total and prolonged stoppage of work in the oil sector caused disturbances to the refuelling of security and emergency services vehicles, which are “essential services” in the strict sense of the term, resulting in a risk to the security and health of part of the population. The Government points out that stating that oil facilities are not included on the list of “essential services” is not sufficient grounds to deem the requisitions illegal.
21. 1034. Regarding the description of the context of October 2010 as “circumstances of the utmost gravity”, the Government observes that the complainant organization bases its argument on the situations at Roissy-Charles de Gaulle airport and in the Ile-de-France region, which played a significant role in motivating the prefect of Yvelines to issue back-to-work order No. 2010-303, requisitioning striking workers from the Gargenville refinery. The Government points out that, in reality, the prefectural requisition orders only applied to a limited number of oil sites. Thus, of the 12 refineries in France, only two were the subject of received requisition orders of limited scope. It therefore seems difficult for the Government to believe that those requisitions broke the entire strike, which was also being held at other oil sites. The Committee notes, regarding the complainant organization’s opinion that the “risk of riots” at Roissy-Charles de Gaulle airport was unfounded, that the refuelling of priority vehicles was not under threat, and that the risk of the main roads in the region becoming congested owing to problems of fuel supplies in service stations was not manifest, that the Government considers that the prefectural requisition orders were issued in anticipation of the risk of a threat to public order, as provided for under article L. 2215-1, paragraph 4, of the CGCT, with the aim of reducing potential difficulties caused by widespread and sustained blockade of the country’s oil sites. The Government adds that the anticipation of threats to public order precludes an a posteriori evaluation of the degree of unrest that the strikes and blockades could have caused, since it’s very aim is to prevent that unrest. The Government therefore considers that it is therefore unjustified to compare unforeseen situations that have had specific and unpreventable consequences, with the repercussions of the strikes in the oil sector, the consequences of which were prevented by the issuing of prefectural requisition orders.
22. 1035. The Committee observes that, with regard to the complainant’s allegations that the Government did not seek alternatives to requisition, particularly in the case of order No. 2010-303 issued by the prefect of Yvelines, which did not provide for alternative measures like those taken in the department of Eure, where a list of priority vehicles was drawn up, the Government points out that the order in question was not a proper alternative, since it prioritized access to fuel, rather than the restocking of fuel distribution points. Moreover, the Government states that the widespread and sustained blockade had restricted prefects’ opportunities to put alternative measures to requisition in place. Furthermore, the Committee notes the Government’s stipulation that the prefectural requisition orders issued in October 2010 specifically mentioned efforts to seek alternative solutions to requisition to ensure refuelling, and referred to the fact that a widespread and sustained blockade of the oil sites concerned was unacceptable. In that regard, the orders were strictly in line with article L. 2215-1, paragraph 4, of the CGCT, pursuant to which: “... when ... the means at the prefect’s disposal no longer allow him to pursue the objectives for which he has powers of enforcement, he may, by means of an order setting out the grounds for the decision requisition any good or service ...”. The Government thus recalls that order No. SIDPC 2010-303 of 22 October 2010, issued by the prefect of Yvelines, justifies the requisition of workers at the Gargenville site by stating that “the strike is affecting other depots”. Similarly, the Seine-et-Marne prefectural order No. 187/DSCS/SIDPC, dated 24 October 2010, observes that “ceasing production in several refineries in France for more than a week is preventing fuel supplies from reaching service stations, many of which are currently completely out of stock while others are running very low; given the latent shortage across the country no other source of fuel supply can be mobilized quickly in the department”.
23. 1036. Foremost, the Committee wishes to point out that it has as always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 521]. However, it has also recognized that the right to strike may be restricted or prohibited in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee also wishes to recall that oil facilities, and the production, transport and distribution of fuel, do not constitute essential services in the strict sense of the term [see Digest, op. cit., para. 587].
24. 1037. Furthermore, the Committee recalls that: “The establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance.” [See Digest, op. cit., para. 606.]
25. 1038. Regarding the motives for the prefectural orders issued in October 2010, which are the subject of this complaint, the Committee observes that the orders were issued with the intention of maintaining public order, and particularly preventing public safety and security risks. The Committee observes that the decisions of the administrative courts, petitioned in urgent applications, back up that assessment. The Committee observes, moreover, that the requisitions were intentionally limited in respect of the work required, the number of workers requisitioned and the duration of the requisitions, in order to respond to the precise need to recover public order and not to impede the right to strike. In this regard, the Committee considered that the requisition of some workers to meet the refuelling needs of priority vehicles could be used in the temporary establishment of a minimum service to respond to problems of public order that could impact the life, health or security of the population.
26. 1039. The Committee recalls, however, that it is important that the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services [see Digest, op. cit., para. 612]. Any disagreement should be resolved by an independent body, such as the judiciary, rather than by the Government. In this regard, the Committee notes that no preliminary negotiations were undertaken to define the minimum services considered necessary before the prefectural requisition orders were issued. While noting that the Government has pointed out that the prefectural orders issued in October 2010 specifically mention seeking alternatives to requisition to enable fuel to be restocked and has raised the issue of the unacceptable nature of a widespread and sustained blockade of the oil sites concerned, the Committee regrets that the authorities did not make a greater effort to engage in negotiations on the organization of minimum services with the organizations representing the striking workers and the employers concerned, particularly since, according to the information provided, the conflict behind the strikes was not one that had only just begun.
27. 1040. Furthermore, with regard to the arguments put forward on the situation at Roissy-Charles de Gaulle airport, which particularly influenced the issuing of Order No. 2010-303 by the prefect of Yvelines, ordering the requisitioning of striking workers from the Gargenville oil refinery, the Committee notes that the complainant organization has suggested the measures were taken for economic reasons, while the Government has presented the situation as causing potential risks to public safety, leading to a lack of accommodation and food, and causing riots. The Government has also stated that the prefectural requisition orders were issued in anticipation of a threat to public order, as provided for under article L. 2215-1, paragraph 4, of the CGCT.
28. 1041. The Committee recalls that, in the airport sector, only air traffic control can be regarded as an essential service justifying restrictions on the right to strike. Neither the distribution of fuel to ensure that flights continue to operate, nor transport per se, can be therefore considered essential services in the strictest sense of the term. Moreover, economic consideration should not be invoked as a justification for restrictions on the right to strike. However, the Committee has, in the past, had cause to consider that when a service that is not essential in the strict sense of the term but is part of a very important sector in the country – as could be said of passenger and goods transport – is brought to a standstill, measures to guarantee a minimum service may be justified. Such a service could also be a potential alternative solution in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or facilities operate safely or without interruption [see Digest, op. cit., para. 607].
29. 1042. Under these circumstances, and given that requisition measures designed to provide a minimum service in fuel production, transport and distribution establishments make no reference to the participation of the parties concerned, the Committee requests the Government to ensure that, in the future, in situations where a non-essential service is paralysed, but where there is justification for taking measures to ensure a minimum service, the workers’ and employers’ organizations concerned are involved in the decision-making process, and that measures are not implemented unilaterally.