NGOs under European Convention on Human Rights / Tymofeyeva

2.7.2 Submissions of trade unions The last phrase in the first paragraph of Article 11 of the Convention explicitly foresees the right “to form and to join trade unions”. What does this expression mean in light of the Court’s case-law? In the case of National Union of Belgian Police v. Belgium , 939 the Court recognised the following: “the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible … it follows that the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. Article 11 … certainly leaves each State a free choice of the means to be used towards this end. While consultation is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests.” 940 At the same time, the rights of the trade unions under the Convention are not unlimited. It has to be taken into account that Article 11 does not provide for the right to consult trade unions; 941 the right to retroactive benefits resulting from a collective agreement; 942 the right to strike; 943 and the right for trade union members not to have their posts transferred. 944 Let us have a more detailed look at the rights of trade unions as Article 34 NGOs under this provision of the Convention. The right to form a trade union in accordance with paragraph 2 of Article 11 of the Convention may be restricted in respect of members of the armed forces. Such limitations, however, may not impair the freedom of assembly and association in its core. On 2 October 2014, the Court handed down judgments in two cases on the freedom of association of military personnel. These were the cases of Adefdromil v. France 945 and Matelly v. France . 946 Despite the fact that the application in the second case was introduced by an individual, both cases concerned the same issue, and could be analysed together. As previously discussed above, in many cases, it is difficult to distinguish between personal and collective rights. These cases are of special interest, because for the first time the Court considered the right to form a trade union in the armed forces. In the first case, the Association de Défense des Droits des Militaires ( ADEFDROMIL ), a professional organisation for service members, complained about its denial of access to justice when it was considered to be in breach of the provisions of article L. 4121-4 of the French Defence Code. This article L. 4121-4 declares the existence of occupational organisations for military personnel, as well as the membership of such organisations,

National Union of Belgian Police, cited above.

939

Ibid. , § 39.

940

National Union of Belgian Police, cited above.

941

942 Dilek Dalgıç v. Turkey , no. 51416/99, 23 October 2003, Schmidt and Dahlström v. Sweden , 6 February 1976, Series a no. 21. 943 Schmidt and Dahlström, cited above, § 36. 944 Akat v. Turkey , no. 45050/98, 20 September 2005. 945 Adefdromil, cited above. 946 Matelly v. France , no. 10609/10, 2 October 2014.

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