The Right to Strike under the European Court of Human Rights

Master's Thesis, 2016

39 Pages, Grade: 70%




1. The European Court of Human Rights and the Interpretation of Article 11 ECHR: The Court’s Initial Reluctance
1.1. The Court’s 'Restrictive' approach towards the Interpretation of Article 11 ECHR

2. The Case of Demir and Baykara v. Turkey: The 'U-Turn' in the Court’s Jurisprudence
2.1 The Implications of the Judgment in Demir and Baykara v. Turkey on the Right to Strike

3. The Case of RMT v. United Kingdom: The 'Hangover' of the European Court of Human Rights?

4. The Importance of the Right to Strike as a Human Right and its Future Protection under the ECHR: An Enhanced or a Superficial Protection?
4.1. The current developments and the increasing ‘‘hostility’’ towards labour rights: The ECtHR as the guardian of the right to strike?




‘‘ The only thing workers have to bargain with is their skill or their labour. Denied the right to withhold it as a last resort, they become powerless. The strike is therefore not a breakdown of collective bargaining; it is the indispensable cornerstone of that process. ’’- Paul Clark, U.S. Labour Historian, 1989

Let us imagine a legal universe of labour relations, where the right to strike would not constitute a legitimate means by which workers can secure fair remuneration and working conditions. The imminent risk involved in such a hypothesis is that we could return to an era of ‘‘sweated labour’’,[1] where long hours, low wages, and hazardous working conditions, would be inseparable features of the industrial and political sphere.[2] This scenario is premised on the notion that there is an asymmetry in bargaining power between an employer and a worker, such that ‘‘in the absence of the right to strike, the right to collective bargain is no more than a right to collective begging’’.[3] Fortunately, the description of this society belongs to the past, at least to a certain extent, and hopefully it will remain there.

Now the right to strike has been broadly acknowledged as an indispensable component of collective bargaining, and simultaneously as one of the most essential paths whereby workers preserve their socio-economic rights. It is safeguarded by international and European human rights instruments,[4] and it is accorded constitutional recognition in a number of states, including several Council of Europe parties.[5] Despite the fact that this right is not explicitly recognised in any international labour convention, the supervisory bodies of the International Labour Organisation (ILO) have safeguarded the entitlement to strike by reading it into the provisions of ILO No 87 on the Freedom of Association.[6] Relying on these specific provisions, ILO’s supervisory bodies have generated substantial case-law covering the scope and meaning of the right.

These principles, to a considerable degree, have been transferred into the rulings of the European Court of Human Rights (ECtHR or 'the Court'). In the landmark cases of Demir and Baykara [7], and Enerji [8] the Court has recognised the significance of both the right to collective bargain and to strike as vital features of the freedom of trade unions association, covered by Article 11 of the European Convention on Human Rights (ECHR).[9] Such an acknowledgment generated a surge of enthusiasm amongst a plethora of scholars and trade unionists. Ewing and Hendy characterised the case of Demir as an ‘‘epoch making ruling’’,[10] while Dorssemont describes the outcome in Enerji as a ‘‘judicial revolution’’,[11] due to the 'U-turn' of the Court’s approach in relation to the right to strike. Yet, despite its broad recognition, it has produced an immense debate over its legal status and legitimate application. This occurs because national measures confining its exercise are relatively frequent and extensive.[12] Within the context of the ECHR such measures have been challenged in many instances in front of the Court, with the impact of its rulings becoming apparent at the national level of the Contracting states[13]. At the same time, some of the ECtHR’s judgments have given rise to a significant amount of scholarly literature and reflection regarding the level of protection that has being afforded to the right to strike.

This paper seeks to examine, from a human rights perspective, the degree of protection of the right to strike under Article 11 ECHR.

Chapter One will examine whether Article 11 ECHR offers any possibility for reading into its provisions a general right to strike. It will scrutinise the initial reluctance of the ECtHR to proceed to such an interpretation, and thus to adequately safeguard the right at issue.

Chapter Two will discuss the course through which the initial despair preceded the subsequent hope of the Demir and Baykara judgement while considering the case’s impacts on the protection of the right to strike.

Chapter Three will critically examine the decision in the RMT v. UK case, in which the ECtHR appeared to misplace any optimism its previous jurisprudence had generated. It will focus on the UK’s problematic pre-industrial notices which are necessary for the workers in escaping tortious liability, and on the classification, by the Court, of a secondary action as an ‘‘accessory’’, rather than a core aspect of trade unions’ activity.

Chapter Four will at first refer to the importance of the right to strike as a human right. It will be argued that its enhanced protection can result in the promotion of human rights for both those taking part in the industrial action and those who are not formally engaged in the dispute. Finally, it will discuss why the ECHR constitutes the 'safest' route through which individuals and trade unions can challenge breaches vis a vis the right to strike.

1. The European Court of Human Rights and the Interpretation of Article 11 ECHR: The Court’s Initial Reluctance

It is true that until relatively recently the ECHR was thought to constitute an instrument for ensuring civil and political entitlements. In the course of adopting its human rights bodies, the Council of Europe drew an apparent distinction, on the one hand between civil and political rights enshrined in the ECHR, and on the other between the socio-economic rights contained in the ESC. Hence, the ECHR does not recognize in any specific way the right to bargain collectively, let alone the right to strike.

As Dorssemont points out, by virtue of this absence, the only prospect for judicial recognition of a right to strike derives from Article 11 ECHR, which guarantees the freedom of association in a rather wide-ranging form.[14] This article provides that ‘ ’the right to freedom of peacefully assembly and to freedom of association with others ’’, comprises ‘‘ the right to form and to join trade unions for the protection of their interests ’’.[15] Dorssemont argues, this approach – a more generic recognition – essentially differs from the method in which the right to organise is construed in more specialised international mechanisms.[16] Within such instruments this right is fleshed out as an entitlement that stems from the freedom of association.[17] For instance, under the scope of the ESC’s provisions, the right to collective action is interpreted as intertwined with the right to collectively bargain,[18] while its provision on the freedom of association is silent with regard to collective action/strike.[19] Having said that and bearing in mind both the non-existence of any explicit acknowledgment of a right to strike and the presence of a specific right to form and join a trade union, the question that naturally arises is whether Article 11 offers the legal space for reading into its provisions ‘‘a number of corollary rights regarded as inherent aspects of the more generic freedom of association’’.[20] Dorssemont, in considering the wording of the aforementioned provisions, does admit that the chances for such an evolution are limited.[21] He stresses that the ‘‘right to form and join a trade union’’ purely rephrases the key principles of the freedom of association and for that reason the scope of Article 11 appears to be construed in a way that covers only the individual, rather than the collective dimension of the right to organise.[22] This narrow approach generates several concerns in relation to the protection of trade unions’ interests, and more specifically to the exercise of the right to collective action.

Fortunately for the protection of human rights, at least within the ECHR’s context, the mere phrasing of a provision does not reveal the whole spectrum regarding the protection of a specific right. Therefore, in order to assess the status of the right to strike under the ECHR, a thorough examination of the ECtHR’s jurisprudence is essential.

1.1. The Court’s 'Restrictive' approach towards the Interpretation of Article 11 ECHR

As mentioned above, the ECHR since its inception had been seen as an instrument for ensuring primarily civil and political rights. Even though the official position of the Council of Europe is premised on the very notion of interdependence, indivisibility and interrelation of human rights, according to Novitz, there was a notable ‘‘disparity between this rhetorical claim and the actual reality’’,[23] regarding the protection of socio-economic norms and in particular the right to strike. During the entire 20th century, the discrepancy between theory and practice was demonstrated by the reluctance of the (then) European Commission on Human Rights (ECoHR), and more recently by the ECtHR, to identify ‘‘a hard core of means’’[24] that the parties to the Convention should secure in order to permit trade unions to preserve their interests under the scope of Article 11 ECHR.

The Court in a number of cases during the 1970s adopted a rather restrictive interpretation, by merely emphasizing that Article 11 imposes a duty on Contracting-States to set out mechanisms that allow trade unions to represent their members; it did not make any particular reference to the methods by which this was to be done.[25] Consequently, the Court had ruled against trade unions which tried to guarantee their interests vis a vis the rights to consultation, collective bargaining and strike[26]. Hendy and Ewing argue that part of this reluctance can be attributed to the existence of the ESC, in relation to which State-Parties are able to choose freely the specific provisions that they are prepared to accept.[27] For instance, in the early case of National Union of Belgian Police,[28] it was held that Article 6(1) ESC cannot be construed in a manner that gives rise to a ‘‘ real right to consultation ’’,[29] and even if it did so, this did not mean that Article 11 ECHR should be interpreted as such. In this case the Court based its opinion on the traditional dichotomy between civil liberties and socio-economic rights.[30] Such an approach was highly problematic, since as Novits rightly points out, it seems doubtful that the founding fathers of the ESC envisaged that the mechanism would not strengthen the protection of trade unions’ interests, but would offer the 'Strasbourg' a good reason to construe Article 11 in a more preventive way.[31] The ECtHR could have traced a link between the freedom of association and the right to collectively bargain but it did not engage in such considerations.

The approach embraced in the case of National Union of Belgium Police proved to be damaging for trade unions in the process of challenging limitations on the exercise of the right to strike, which did not infringe the equal treatment principle. This became apparent in the subsequent case of Schmidt and Dahlström, where State officials and individual members of Swedish trade unions tried to challenge the lawfulness of restrictions on the right to strike under Article 11 ECHR.[32] It was held that the right to strike was one of the most important methods by which workers can protect their interests. It went on, however, to add that such a right was by no means the only avenue to do so as there were other ways for the applicants to equally defend their occupational rights.[33] Plainly, the Court not only treated the right to strike as an important, rather than an essential 'tool' in the hands of workers, but it also failed to interpret it as an entitlement ‘‘expressly enshrined in Article 11’’.[34] What is surprising with this particular case, is that the decision was concluded with reference to the principles protected under both the ILO and the ESC. It could be stressed that the argument of the ECtHR in relation to alternatives to the right to strike was also open to doubt. Industrial actions are meant to be detrimental for every employer. As Davies states, ‘’the more harm they cause, the more efficacious they are expected to be in convincing the employer to make concessions’’.[35] Thus, alternative means might not be as effective as the very act of strike.

Overall, the Court’s ‘’guarded language’’[36] in its early jurisprudence, regarding Article 11, constituted an impenetrable barrier for trade unions and individual workers to assert their work-related interests under the Convention. The reluctance of the Court to recognize the importance of the right for the enjoyment of freedom of association appeared to come into contrast with the principles enshrined in other international instruments, like the ESC. Thankfully, it will be seen that cases such as Schmidt and Dahlström appear to have been isolated setbacks and have not slowed the race to the top of effective protection of human rights.

2. The Case of Demir and Baykara v. Turkey: The 'U-Turn' in the Court’s Jurisprudence

As Ewing put it, due to the outcomes of the Court’s early case-law in respect to the right to strike, there were few who could have been assured of the Strasbourg complaint succeeding.[37] Nonetheless, even as late as in 2002 the Court seemed to adopt a considerable different attitude in the case of UNISON.[38] There, it was acknowledged for the first time –even though the Court reiterated the mantra that recourse to strike action was simply an important, rather than an essential means to preserve worker’s rights– that any constraint on the right to strike ‘‘ must be regarded as a restriction on the applicant’s power to protect [the member’s] interests and therefore discloses a restriction…under the first paragraph of Article 11’’.[39] Albeit the statutory restriction in question was found to be justified under Article 11(2)[40], because it pursued a legitimate aim –necessary in a democratic society–, this shift in jurisprudence constituted a noteworthy development. UNISON’s approach was also adopted in subsequent cases, [41] and as Ewing mentions the right to strike within the context of the Convention emerged as having a bizarre ‘‘twilight status’’: whilst it was not formally recognised, at the same time, the Court was prepared to recognise the unlawfulness of restrictions on the right regarding Article 11(1), which had to be justified under the ambit of Article 11(2).[42]

Undoubtedly, this approach appeared much more promising than the one that was embraced in earlier cases, like in Schmidt and Dahlström. Such a view can also be supported by the Grand Chamber’s wording in the subsequent ruling of Wilson and Palmer.[43] The case did not concern the right to strike; still, it is important for a different aspect. The ECtHR acknowledged that the right in question is an essential alternative to force an employer to bargain collectively. In other words, it was accepted that the right to strike is an important feature of the entitlement to collective bargaining. This interrelationship was demonstrated a few months later, in one of the most significant decisions of the Court in the area of labour rights.

According to Ewing and Hendy the old-thinking of Strasbourg Court was totally eradicated in November 2008, in the landmark case of Demir and Baykara.[44] The magnitude of this case was not in the actual judgment, but in the ECtHR’s inclination to re-determine previous authority regarding Article 11 by reference to the Convention as a 'living instrument' that has to adapt to the new societal changes, and for the emphasis placed on the duty to interpret the latter in light of other international mechanisms.[45] These two points are undeniably of remarkable significance and to expand in more depth, a brief discussion of the case’s facts is useful.

The applicants, members of a Turkish civil service union, entered into a collective agreement that concerned working conditions with a local municipal authority. The latter failed to comply with some of its obligations and consequently the union brought civil proceedings against it. At first instance, the Turkish District Court found for the union, but its decision was quashed by the Court of Cassation –on the appeal–, ruling that even though civil servants were entitled to join trade unions, the union in question did not have the necessary express legislative authority to enter into a collective agreement. On the second appeal the Court of Cassation reiterated its position by further holding that the trade union did not acquire a legal status, due to its failure to comply with prescribed requirements to establish its competences. The union brought the case in front of the ECtHR claiming that the Turkish Government was in breach of Article 11 ECHR by refusing them the exercise of their entitlements, namely, to form a trade union and engage in collective bargaining. Both the Chamber of the Second Section of European Court and at a later stage the Grand Chamber, unanimously held that the Turkish authorities were in breach of Article 11 ‘‘ on account of the interference with the right of the applicants, as municipal civil servants, to form a trade union and of the annulment ex tunc of the collective agreement entered between the trade union, following collective bargaining with the employing authority ’’.[46] Basically, the Court, by moving away from its previous jurisprudence, explicitly recognised that the right to bargain collectively is an inherent feature of Article 11 ECHR. In doing so, as Lörcher argues, ‘‘it opened up the whole Convention to a more socially oriented interpretation’’.[47]


[1] Such working conditions were dominant in Western Europe and other industrialised countries during the 19th century.

[2] Novitz, T. (2003), International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union, Oxford: Great Clarendon Street, Oxford University Press, 120.

[3] Ewing K.D., Hendy Q.C. (2010), ‘ The Dramatic Implications of Demir and Baykara ’, 39(1), I.L.J, 10.

[4] See, Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESC); Article 6 European Social Charter (CFREU); Article 28 European Union Charter of Fundamental Rights (ESC).

[5] See for example Article 23(1) of the Greek Constitution.

[6] Convention 87 on the Freedom of Association and Protection of the Right to Organise 1968.

[7] Demir and Baykara v. Turkey (Appl No. 34503/97), 12 November 2008 (‘’ Demir ’’).

[8] Enerji Yapi-Yol Sen v. Turkey (Appl. No. 68959/01), 21 April 2009 (‘’ Enerji ’’).

[9] Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

[10] Op. Cit., n. 4, 41.

[11] Dorssemont, F. (2014) ‘How the European Court of Human Rights gave us Enerji to cope with Laval and Viking ’ , in Moraeu, M.A. (ed.) Before and After the Economic Crisis: What Implications for the ‘European Social Model’, Cheltenham: 15 Lansdown Road, Edward Elgar Publishing Limited, 120.

[12] Zou, M. (2012), ‘Freestanding Right or a Means to an End-The Right to Strike in the ILO and EU Legal Frameworks’, 15, T.C.L.R, 101.

[13] See for example, Bruun, N. (2011), ‘ The Finnish Supreme Court recognizes the impact of European Court of Human Rights case-law on national strike law ’, 17(4), Transfer: European Review of Labour and Research, 577-580.

[14] Dorssemont, F. (2013), ‘The Right to Take Collective Action under Article 11 ECHR’, in Dorssemont, F., Lörcher, K., Schomann, I., The European Convention on Human Rights and the Employment Relation, Oxford: 16c Worcester Place, Hart Publishing, 334.

[15] Article 11 ECHR.

[16] Derssemont, F. (2010), ‘The Right to Form and to Join Trade Unions for the Protection of his Interests under Article 11ECHR: An Attempt to ‘’to Digest’’ the Case Law (1975-2009) of the European Court on Human Rights’, 1(2), E.L.J, 186.

[17] Ibid.

[18] Article 6(4) of the revised ESC.

[19] Article 5 ESC; see also, Article 8 ICESCR; ILO Conventions nos 87 & 98.

[20] Op.Cit., n. 14, 334.

[21] Ibid., 335.

[22] Ibid.

[23] Op.Cit., n. 2, 180.

[24] Op.Cit., n. 11, 221.

[25] See, Forde, M. (1983), ‘ The European Convention on Human Rights and Labor Law ’, 31(2), A.J.C.L, 301-332.

[26] See also, Swedish Engine Drivers’ Union v. Sweden (App. No. 5614/72), 6 February 1976.

[27] Op.Cit. n. 3, 3.

[28] National Union of Belgian Police v. Belgium (Appl. No. 4464/70), 27 October 1975.

[29] Ibid, at [38].

[30] Op.Cit., n. 2, 132.

[31] Ibid.

[32] Schmidt and Dahlström v. Sweden (App. No. 5589/72), 6 February 1976.

[33] Ibid, at [33].

[34] Ibid, at [36].

[35] Davies, A.C.L. (2008), ‘ One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ ’, 37(2), I.L.J, 143.

[36] Op.Cit., n. 24, 331.

[37] Ewing, K.D. (2003), ‘ The Implications of Wilson and Palmer ’, 32(1), I.L.J, 3.

[38] UNISON v. UK (App. No. 53574/99), 10 January 2002.

[39] Ibid, at [37].

[40] See also, Federation of Offshore Worker’s Trade Unions and Others v. Norway (App. No. 38190/97), 27 June 2002.

[41] For example see, Dilek v. Turkey (App. Nos. 74611/02, 26876/02 and 27628/02), 30 January 2008.

[42] Op.Cit., n. 36, 18.

[43] Wilson, National Union of Journalists v. UK (App. No. 30668/96), 2 July 2002.

[44] Op.Cit., n. 3, 3.

[45] Barrow, C. (2010), ‘ Demir and Baykara v. Turkey: breathing life into article 11’, 4, E.H.R.L.R., 420.

[46] Op.Cit., n. 7, at [183].

[47] Lörcher, K. (2013), ‘The New Social Dimension in the Jurisprudence of the European Court on Human Rights (ECHR): The Demir and Baykara Judgment, its Methodology and Follow-up’, in Dorssemont, F., Lörcher, K., Schomann, I., The European Convention on Human Rights and the Employment Relation, Oxford: 16c Worcester Place, Hart Publishing, 4.

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The Right to Strike under the European Court of Human Rights
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Charalampos Stylogiannis (Author), 2016, The Right to Strike under the European Court of Human Rights, Munich, GRIN Verlag,


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