CEDH · CASELAW;CLIN;ENG — 2 octobre 2014

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France - 32191/09 Judgment 2.10.2014 [Section V] Article 11 Article 11-1 Form and join trade unions Prohibition on members of the armed forces taking part in activities of professional associations: violation [This summary also concerns the case of Matelly v. France, 10609/10, 2 October 2014] Facts – The applicant in the Matelly case was an officer in the gendarmerie. In March 2008 he set up an association whose primary purpose was, according to the memorandum of association, “to defend the pecuniary and other interests of gendarmes”. The Director General of the National Gendarmerie was informed that the association had been set up. In May 2008 he ordered the applicant and the other serving gendarmes who were members of the association to resign from it immediately as he considered that it resembled a trade-union. Even before receiving the order, the applicant had stated that the association was willing to amend its memorandum of association to remove any ambiguity concerning its members’ military obligations. He resigned from the association a few days later. All his appeals were dismissed. The applicant in the Adefdromil case was an association set up in 2001 by two servicemen with the statutory aim of “examining and defending the collective or individual rights and pecuniary, occupational and non-pecuniary interests of military personnel”. Neither the President of the Republic (Head of the Armed Forces) nor the Prime Minister had reacted to its creation despite being informed. In November 2002, noting trade-unionist aims of the association, the principal private secretary of the Minister of Defence informed military personnel on active service that it was a disciplinary offence to join the association and that any personnel who were already members must resign. The association thus lost several leading members. It alleged that it had been unable to obtain judicial review of the measure which had resulted in the resignations. It also lodged several applications with the Conseil d’État for judicial review of three decrees issued by the Minster of Defence, which it alleged contravened the general regulations for service personnel and of the principle of equality. The Conseil d’État held that the applicant association did not have standing to request the setting aside of the decrees as it had contravened the rules preventing service personnel from joining groups set up to defend service personnel’s professional interests. Law – Article 11: The impugned measures amounted to interference with the rights to form and join trade unions. They had been provided for by the Defence Code and had the legitimate aim of preserving the order and discipline necessary in the armed forces, of which the gendarmerie was also a part. The relevant provisions of the Defence Code contained an outright ban on military personnel joining any trade-union body. Neither tolerance of trade-union organisations set up by members of the armed forces nor the creation of special bodies and procedures to defend their interests could act as a substitute for the recognition of the right of military personnel to form and join trade unions. While trade-union activity had to be adapted to take into account the specific nature of the armed forces’ mission, such activity could nonetheless, by its purpose, bring to light concerns regarding decisions that affected the pecuniary and other interests of military personnel. Thus, while restrictions, even significant ones, could be imposed on the forms of action and expression of an occupational association and of the military personnel who joined it, such restrictions were not to deprive service personnel and their trade unions of the general right of association to defend their occupational and non-pecuniary interests. By failing to take account of Mr Matelly’s attitude and wish to comply with his obligations, and by prohibiting the applicant association, as a matter of principle, from bringing a court action on account of the trade-union nature of its stated aim, without identifying in tangible terms the individual restrictions required by the specific role of the military, the domestic authorities had undermined the very essence of freedom of association. They had thus failed to comply with their duty to strike a fair balance between the relevant competing interests. While the freedom of association of military personnel could be subject to legitimate restrictions, a blanket ban on forming or joining a trade union encroached on the very essence of that freedom and was as such prohibited by the Convention. Conclusion : violation (unanimously). Article 41: no claim in respect of damage submitted in either case.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes