June 18
2021
Dolores Utrilla
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10th June 2021
Employment & Immigration Human Rights Internal Market Justice & Litigation

ECtHR: declaration of unlawfulness of workers’ boycott did not breach ECHR, but EEA freedom of establishment is not a fundamental right to be weighed against human rights

The European Court of Human Rights (ECtHR) has just handed down its Chamber ruling in Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway (application no. 45487/17), ruling that the decision by the Supreme Court of Norway to declare unlawful a workers’ boycott in opposition to a shipping firm did not breach the freedom of assembly and association enshrined in Article 11 of the European Convention on Human Rights (ECHR).

The case concerns a boycott organised by the Norwegian Transport Workers’ Union (NTF) against Holship Norge AS, a shipping firm employing dockworkers outside of a collective framework agreement which concerned the port of Drammen. The NTF obtained a declaratory judgment from the Drammen City Court (later upheld by the Borgarting High Court) that the boycott would be lawful. However, Holship appealed to the Supreme Court, which in turn sought an advisory opinion from the Court of Justice of the European Free Trade Association (EFTA) States. 

The EFTA Court found that Holship’s right to freedom of establishment under the European Economic Cooperation Agreement (EEA) might be infringed by the boycott. Moreover, according to the EFTA Court, ‘the system in the present case protects only a limited group of workers to the detriment of other workers’. Referring to this decision, on 16 December 2016 the Norwegian Supreme Court ruled the boycott unlawful, reasoning that the EEA freedom of establishment could justify restrictions of constitutional or ECHR human rights. In the case at hand, the Supreme Court concluded that giving priority to workers employed via the administration office in the port of Drammen was a restriction on the freedom of establishment, and that such restriction was not sufficiently justified by the aim of protecting the rights of workers.

In its judgment today, the ECtHR concluded that the decision taken by the Norwegian Supreme Court was sufficiently justified in view of the particular circumstances of the case at hand, and that it correctly took into account the nature and purpose of the proposed boycott. The Strasbourg-based court therefore reached the conclusion that the Supreme Court of Norway had not overstepped its wide margin of appreciation.

However, the ECtHR also stressed that, for the purposes of Article 11 ECHR, the freedom of establishment protected by EEA law does not amount to a fundamental right to be weighed against the freedom of association, but rather one (important) element to be taken into consideration in the assessment of proportionality.

The judgment is available here.

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