In a chamber judgment of 16 January 2025, the European Court of Human Rights (‘the Court’) held, unanimously, that Article 11 (freedom of assembly and association) of the European Convention on Human Rights had not been violated by the criminal conviction of trade union officials in Belgium in the context of offences committed on the occasion of a general strike.
The case concerned the applicants’ criminal convictions for maliciously obstructing road traffic by blocking a motorway for around five hours without prior permission on 19 October 2015, the day of a general strike in Belgium against the austerity measures of the then government.
The Court noted that the applicants had been convicted neither for striking nor for expressing their opinions. Rather, they had been found guilty of taking part in traffic obstruction giving rise to a potentially dangerous situation, which was an offence under the Criminal Code. The Court specified that it could not endorse the argument that the right to strike included the right for a trade union or its members to obstruct public roads without prior permission. The Court concluded that, in convicting the applicants of maliciously obstructing traffic, the domestic courts had based their decisions on an acceptable assessment of the facts and on reasons which were relevant and sufficient. Thus, the national authorities had not exceeded their margin of appreciation in relation to the subject matter.
Since the interference (through the criminal procedure) complained of had been “necessary in a democratic society” within the meaning of Article 11 of the Convention, there had been no violation in the present case.
Relying on Article 14 (prohibition of discrimination) in conjunction with Articles 10 and 11, six of the applicants further argued that the severity of their sentences could be explained by their trade union membership and that their conviction was therefore discriminatory in relation to the other applicants. In response, the Court considered that the factor taken into account by the Belgian criminal courts had been the specific “role” that each of the six applicants had played in the commission of the offence and not their union duties per se. The complaint was therefore manifestly ill-founded.
The case at hand caused quite some upheaval in Belgium, notably because the obstruction of traffic on the day was seen to be responsible for the death of a patient in an ambulance who got stuck in the traffic jams.
From a legal and HR practice, this case is important since it sheds some further light on the limits of acceptable industrial action and of legitimate strike from the angle of protected human rights.
Over time, the Court has had many occasions to rule on Article 11 ECHR, but to our knowledge not exactly on the outer boundaries of industrial action in the private sector, in terms of (dis)allowed actions and acts (‘voies de fait/eigenrichting’) to which the normal usage of this instrument of industrial action may well lead.
It appears to confirm some of the more strict positions towards the right of industrial action, which the Court has taken before, notably the position on the secondary forms of industrial action, and on boycotts.
The judgment is open for appeal with the Grand Chamber of the Court. Given the relentlessness with which the trade union leaders in the case have fought their convictions, it can be expected that the complainants will certainly use that venue. The matter is therefore not closed as of yet.