European Commission to review French air traffic control strikes under EU law?

Apart from being an allegedly political move aimed at putting pressure upon the French government (and potentially upon other Member States faced with similar situations) to take more effective action faced with such strikes, this legal challenge appears to have a solid legal basis as well.

In examining such complaint, the European Commission will be required to balance the fundamental right of workers to strike, which is enshrined in Article 28 of the Charter of Fundamental Rights of the European Union, and the freedom of movement of persons and goods within the EU, which is one of the fundamental principles of EU law (enshrined in Article 26 of the Treaty on the Functioning of the European Union).

The European Commission and the EU Courts have been faced with similar legal issues in the past. For example, in 1995, the European Commission took action against France before the Court of Justice of the European Union (Case C-265/95, Commission v France), following numerous complaints by private individuals and companies. In that case, the complainants had argued that France had failed to take all necessary and proportionate measures in order to prevent the free movement of goods from being obstructed by actions by private individuals in France (such as the interception of lorries transporting agricultural products in France and the destruction of their loads, violence against lorry drivers, threats against French supermarkets selling agricultural products originating in other Member States).

The Court of Justice found in its judgment that indeed France had infringed the EU laws by not taking necessary action to put an end to such behaviour from private individuals. The Court of Justice noted that EU law not only prohibits Member States from adopting any measures which could hinder free movement but also EU law should intervene when "a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State". It therefore concluded that "the fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its territory aimed at products originating in other Member States is just as likely to obstruct intra-Community trade as is a positive act".

A similar balancing test was carried out by the Court of Justice in the landmark cases Albany (Case C-67/96) and Viking Line (C 438/05), where it has considered that the protection of fundamental rights (such as the right to strike) is a legitimate interest which, in principle, could justify a restriction of the obligations imposed by EU law, even under a fundamental freedom guaranteed by the Treaty, such as the free movement of goods or persons, or freedom to provide services.

In this respect, Advocate General Maduro stated very clearly in his Opinion in Viking Line that the application of the EU provisions on free movement in the context of collective action taken by a trade union does not necessarily undermine the EU's social policy objectives and does not deny the fundamental character of the right to strike. He stated in particular that "neither the Treaty rules on freedom of movement, nor the right to associate and the right to strike are absolute. Moreover, nothing in the Treaty suggests that the Community's social policy objectives must always take precedence over the objective of having a properly functioning common market. On the contrary, the inclusion of both policy objectives in the Treaty signifies the aim of the Community to bring these policies together. Therefore, the fact that a restriction on freedom of movement arises out of the exercise of a fundamental right or of conduct falling within the ambit of the social policy provisions does not render the provisions on freedom of movement inapplicable".

In a similar context, the Court of Justice ruled in Schmidberger (Case C-112/00) that an environmental demonstration blocking a motorway between Italy and Austria for a period of 30 hours was not contrary to EU law, as in this instance the demonstrators exercised their rights of expression and assembly peacefully and within the limits of the law. The Court noted that demonstrators took care to warn the road users concerned on both sides of the border in good time and they blocked access to a single route, on a single occasion and for a limited period, which enabled the Austrian authorities to pass on the information in turn and to take accompanying measures to limit, as far as possible, the disruption to road traffic (for example, by setting up alternative routes). However, as this case concerned a one-off, limited action on the part of the protesters, it could arguably be distinguished from the above Commission v France case and from the consecutive air traffic control strikes in France that are the subject-matter of IAG's and Ryanair's complaint, as these cases concern behaviours that span a period of many years.

In light of the above precedent, it would be interesting to see whether the European Commission would take on the complaints submitted by IAG and Ryanair, and whether the delicate balancing test would show once more that France has not made the necessary effort to ensure the unhindered movement of persons and goods within the EU.