Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - France (RATIFICATION: 1951)

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The Committee notes the observations of the General Confederation of Labour (CGT) received on 29 August 2023, and the Government’s replies to those.

Civil liberties. The Committee notes that the CGT alleges that civil liberties have been violated, including by seriously hampering the right to strike, through the disproportionate use of the police and other law enforcement agencies during recent protests. According to the CGT, the Ministry of the Interior’s National Law Enforcement Code (SNMO) undermines the freedom to protest by treating demonstrators as potential troublemakers who disturb public order. The CGT also denounces that law enforcement and intelligence agencies keep data files relating to political opinions, philosophical or religious beliefs or trade union membership, under the decrees of 4 December 2020, amending the provisions of the Internal Security Code. While noting the information provided by the Government on the principles governing the SNMO, the Committee also notes that the Government highlights that: (i) the use of force by the national police and gendarmerie, which is governed by the principles of necessity, proportionality and non-discrimination, is strictly controlled and monitored, and any misconduct in that regard is punished; and (ii) the protests against pension reform, which began in January 2023, were managed by security measures designed to ensure the safety of demonstrators in accordance with the law, in a particularly difficult context marked by serious acts of violence committed by certain demonstrators, or isolated cases of individuals acting violently against law enforcement officers, journalists at the scene or other people. With regard to the data files kept, criticized by the CGT in its observations, the Committee understands that the files in question (“administrative inquiries related to internal security” (EASP), “prevention of threats to internal security” (PASP) and “management of information and prevention of threats to public safety” (GIPASP)) target activities which may undermine the nation’s fundamental national interests or constitute a terrorist threat undermining these same interests. The Committee notes that, according to the Government, under no circumstances do the French authorities keep files on certain persons based on their political opinions, their philosophical or religious beliefs, or their trade union membership, and the treatment of the data concerns persons who may undermine the above-mentioned interests. In this respect, the Committee observes that the Conseil d’État rejected requests from trade unions and associations denouncing the dangerous nature of these files, as it considered that the contested decrees did not disproportionately breach freedom of opinion, conscience, religion or association.

The Committee recalls that trade union rights include the right to organize public demonstrations, provided that the trade unions respect the measures taken by the authorities to ensure public order. At the same time, the authorities should strive to reach agreement with the organizers of a demonstration to enable it to be held without disturbances and should resort to the use of force only in situations where law and order is seriously threatened; the intervention of the forces of order should be in due proportion to the danger to law and order that they are attempting to control. The Committee requests the Government to report on the administrative and judicial inquiries launched following the protests on pension reform at the beginning of 2023. The Committee also requests the Government to provide information on the application of the amended provisions of the Internal Security Code in relation to trade union organization members and to report on any developments, including judicial or regulatory decisions, concerning the issue of the data files kept based on trade union membership.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, freely elect their representatives, organize their administration and activities and formulate their programmes. Appointment of trade union delegates. In its previous comments, the Committee noted that, according to the General Confederation of Labour–Force Ouvrière (CGT-FO), Ratification Act No. 2018-217 of 29 March 2018 undermined the freedom of trade unions to choose their representatives, insofar as, under section L 2143-3 of the Labour Code: (i) the trade union that appoints its delegates must always be a representative union; and (ii) the trade union delegate must always as a matter of priority be chosen from among the candidates for occupational elections who have obtained 10 per cent of the vote. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates. The Committee notes in this respect that: (i) according to the Government, the hypothetical outcomes provided for in section L 2143-3 never put representative trade union organizations in a situation where they could not choose their representative; and (ii) the Court of Cassation, in a ruling of 8 July 2020, confirmed that when all of the elected representatives or all candidates having obtained at least 10 per cent of the votes that it put forward in the most recent occupational elections have waived the possibility of being appointed trade union delegates, the trade union organization can appoint as a trade union delegate one of its members in the enterprise or establishment, or one of its former elected representatives who have reached the limit of three successive terms of office on the social and economic committee (Cass. Soc. 8 July 2020, No. 19-14605). The Committee notes the Government’s indication, in response to its request, that it has not envisaged legislative amendments at this stage. The Committee notes this information.

Parity in occupational elections. In its previous comments, the Committee noted that the CGT-FO found that the interpretation by the Court of Cassation of the provisions of the Act of 17 August 2015 (section L.2314.30 of the Labour Code) regarding the balanced representation of women and men in representative staff bodies was incompatible with the freedom of a trade union to put forward the candidates of its choice, particularly by precluding the trade union organization from proposing a sole candidate. Noting the information provided by the Government, further to the ruling of the Court of Cassation of 13 February 2019 (No. 18-17.042), namely that the legislature had provided not for abstract parity but for proportionality in the number of candidates with regard to the number of male and female employees in the electoral college of the enterprise, the Committee requested the Government to provide its comments in reply to the observations of the CGT-FO with regard to the fact that it is not possible for trade unions to put forward sole candidates. The Committee notes that the Government, in addition to the above reference to the ruling of the Court of Cassation of 3 February 2019, indicates that: (i) the Constitutional Council has ruled that the rules on the balanced representation of women and men in representative staff bodies are in conformity with the Constitution (Decision No. 2017-686, preliminary ruling on constitutionality of 19 January 2018); (ii) jurisprudence is consistent in this matter and the Court of Cassation confirms that where two seats are to be filled in a gender diverse electoral college, the trade union organization cannot exempt itself from these rules by presenting only one candidate (Cass. Soc. 11 December 2019, No. 18-23513); (iii) however, the Court of Cassation has adjusted this rule in the particular case of the under-representation of one sex in an electoral college. Therefore, when the application of the rule of proportionate representation leads to the total exclusion of the representation of either sex, the lists of candidates shall include one candidate of the sex which would otherwise not be represented. This candidate cannot be the first on the list (L. 2314-30, Cass. Soc. 11 December 2019, No. 18-26568; Cass. Soc. 11 December 2019, No. 19-13037; Cass. Soc. 11 December 2019, No. 19-10855). The Committee notes this information.

Articles 2, 3, 6, 7 and 10. Standing of trade unions and trade union federations to take action. The Committee previously noted that, according to the CGT FO, in its decision (CE, 24 May 2017, No. 392661), the Conseil d’État considerably restricted the standing of a trade union federation to take action by not recognizing the latter’s right to challenge a prefectoral decision because of its very local scope of application, even though the subject of the dispute raised a question of principle that the trade union federation was intending to defend. The Committee noted the Government’s indication that: (i) in accordance with section L 2132-3 of the Labour Code, occupational trade unions have the right to take legal action and may exercise all the rights of a civil party before any court in respect of acts directly or indirectly prejudicial to the collective interest of the occupation that they represent; and (ii) the Conseil d’État’s decision of 24 May 2017 merely states that in view of their purpose conferred by law and by their statutes, the standing of a trade union or trade union federation to take action in defence of the collective interest will necessarily be assessed in view of the impact of the impugned decision. Emphasizing the importance of the right of trade unions to access to justice in order to defend the collective interests of their members, the Committee requested the Government to provide more detailed information on how this right is regulated in the legislation and in case law. The Committee notes in this regard that the standing of the trade union organizations to take action is very broad: unlike common law, indirect prejudicial acts to the collective material or moral interest of the occupation suffices (Cass. Soc. 2 June 1983, No. 81-40103 and No. 81-40489, case law that has been consistently confirmed since this date). For example, the trade unions were allowed to bring a civil action in the case of the collapse of terminal 2E at Roissy Charles de Gaulle airport, even though there were only victims from outside the enterprise, “insofar as the breaches constituting the offences prosecuted may have compromised the safety of workers and thereby caused damage to the collective interest of the occupation that they represent by the above-mentioned trade unions” (Criminal Cassation Chamber, 11 October 2005, No. 05-82414). The Committee also notes the provisions of the Labour Code listed by the Government concerning the power afforded to trade unions to take legal action on behalf of employees who have suffered injury (replacement proceedings), as well as class action regarding discrimination (L.1134-6 et sq.). The Committee notes the information provided by the Government on the standing of the trade unions to take action and the relevant case law of the Court of Cassation. Recalling that the observations of the trade union organizations that initiated the examination of this issue by the Committee addressed the Conseil d’État’s decision of 24 May 2017, the Committee requests the Government to provide any further information on the case law of the Conseil d’État on the matter.

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The Committee notes the observations of the General Confederation of Labour–Force Ouvrière (CGT-FO) received on 9 October 2019, as well as the corresponding comments from the Government. The Committee notes that some of the issues raised which the CGT-FO describes as obstacles to the free exercise of the right to organize are being examined by a tripartite committee in the context of a representation made by the General Confederation of Labour and the CGT-FO under article 24 of the ILO Constitution

Article 2. Freedom to form unions. The CGT-FO indicates that when a trade union is established, it is required to submit its articles of association to the town hall. The mayor transmits the articles of association to the Office of the Public Prosecutor (art. R 2131-1 of the Labour Code). The latter must verify that the newly established trade union is not pursuing an aim contrary to public order and morals and that its leaders fulfil the requirements. It alleges, however, that prosecutors or town halls tend to request the submission of documents not required by the regulations, such as identity documents, although nationality should not be taken into account for the establishment of trade unions. The Committee notes that the Government indicates that French nationality does not constitute a criterion for the establishment of a union and that article L 2131-3 of the Labour Code provides that “the founders of any trade union shall submit their articles of association and the names of those who, in any capacity, are responsible for their administration and management”. While recalling that the requirement of certain formalities is not in itself incompatible with the Convention, provided that they do not constitute an obstacle to the right of workers to establish and join organizations of their own choosing, without any distinction, the Committee notes this information . The Committee trusts that the formalities requested by the local authorities will not be applied in a way that can interfere with the right of workers, without distinction whatsoever, including nationality, to establish and join organisations of their own choosing

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, freely elect their representatives, organize their administration and activities and formulate their programmes. Appointment of trade union delegates. The Committee notes that the concern of the CGT-FO that the Ratification Act No. 2018-217 of 29 March 2018 still does not restore the full freedom of trade unions to choose their representatives. The CGT-FO considers that, under the new legislative provisions, trade unions that appoint their delegates must always be representative unions, and the trade union delegate must always as a matter of priority be chosen from among the candidates for occupational elections who have obtained 10 per cent of the vote. The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. According to the CGT-FO, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that the Government did not take into account its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions.The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. In its view, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions, was not taken into account.

For the CGT-FO, defence of freedom of association would also have required the words “or, failing that” in section L 2143-3 to be deleted, so that the trade union delegate could be chosen from among the ordinary candidates for occupational elections or from among members or former representatives. The CGT-FO indicates, however, that the Government recognizes, in a circular, that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates so that the trade union can choose an ordinary member.

For its part, the Government indicates that section 6 of Act No. 2018-217 of 29 March 2018 added an exception to the obligation (provided for by the previous legislation of 2008) to appoint trade union delegates from among candidates who personally obtained at least 10 per cent of the votes cast, namely, when all of the elected representatives who fulfil this requirement waive in writing their right to be appointed as trade union delegates. According to the Government, the hypothetical outcomes provided for in section L 2143-3 would never put representative trade union organizations in a situation where they could not choose their representative.

The Committee recalls in this regard that : (i) the requirement established by the law of 2008 to appoint trade union representatives from among candidates who have personally obtained at least 10 per cent of the votes cast led to the submission of a complaint to the Committee on Freedom of Association (Case No. 2750); (ii) the Committee on Freedom of Association noted with satisfaction the significant easing brought about by the amendment of section L 2143-3 of the Labour Code by Act No. 2018-217 of the conditions imposed on the appointment of trade union representatives, emphasizing that the reform contributes to the preservation of the right of trade union organizations to freely choose their trade union delegates; and (iii) on that basis, the Committee closed the case (see 389th Report, June 2019).

The Committee further observes that: (i) while the legislation does not explicitly provide for the scenario highlighted by the CGT-FO, the Government recognizes by means of a circular that that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates, so enabling the trade union to choose an ordinary member as a trade union delegate if it so wishes, and (ii) the Court of Cassation, in a ruling of 8 July 2020, confirmed that when all of the elected representatives or all candidates having obtained at least 10 per cent of the votes that it put forward in the most recent occupational elections have waived their appointment as trade union delegates, the trade union organization can appoint as a trade union delegate one of its members in the enterprise or establishment or one of its former elected representatives who have reached the limit of three successive terms of office on the social and economic committee (Cass soc. 8 July 2020, No. 19-14605). Noting with interest the progress achieved in terms of legislation and case law with regard to the recognition of the freedom of trade unions to choose their representatives in the enterprise, the Committee invites the Government to provide information on any legislative follow-up given to the above-mentioned ruling of the Court of Cassation.

Compatibility of rules on financial transparency with freedom of association. The Committee notes that, according to the CGT-FO, the requirements of financial transparency and certification of accounts burden the operation of trade union organizations and are contrary to the principle that trade union organizations should organize their administration and activities freely. The CGT-FO considers that the new measures and their application by case law (Cass. soc. 17 October 2018, No. 17-19732 : the accounts published by the trade union should not be out of date when the trade union branch representative is appointed; Cass. soc. 17 October 2018, No. 18-60030: the publication of accounts on the Facebook page of the trade union does not meet the criterion of financial transparency; Cass. soc. 13 June 2019, Nos 18-24814, 18-24817 and 18-24819: the trade union must have published its accounts and must also obtain approval for them from the general assembly or statutory body) would ultimately impede the legal pursuit of trade union activities.

The Committee notes the Government’s indication that in its decision of 30 April 2020, the Constitutional Council found that the obligation on trade unions to meet the requirement of financial transparency “does not ignore freedom of association or the principle of worker participation” (DC No. 2020-835 QPC of 30 April 2020). The Government indicates that: (i) the financial transparency rules imposed on trade union organizations are not opposed to freedom of association as protected by the Constitution but, on the contrary, contribute to ensuring its effective realization. The autonomy and independence of the trade union movement are basic to the collective aspect of freedom of association that financial transparency seeks to guarantee by requiring trade union organizations to make public the sources of their funding; (ii) financial transparency also helps to inform the decision to join a trade union organization by allowing employees to be fully informed of the sources of funding of the organization to which they belong or which they intend to join and the manner in which their membership fee is used by that organization; (iii) with regard to the funds disbursed by the national joint fund management association, trade union organizations and professional employers’ organizations may use their funds freely, provided that they can establish their compliance with legally defined missions of general interest. Organizations receiving funds can also justify their use in a public annual report to the National Joint Funds Management Association (AGFPN), on which the annual report that the AGFPN submits to Parliament and the Government is based; (iv) financial transparency of accounts is also a criterion by which the representativeness of organizations can be identified.

The Committee notes this information and considers that the elements laid before it by the CGT-FO do not allow for a finding that the financial rules or those governing external control of financial reporting exceed the objective of protecting the interests of members and ensuring the democratic functioning of institutions.

Parity in occupational elections. The Committee notes that the CGT-FO finds that the interpretation by the Court of Cassation of the provisions of the law of 17 August 2015 (Article L.2314.30 of the Labour Code) regarding the balanced representation of women and men in representative staff institutions would be incompatible with freedom of a trade union to put forward the candidates of its choice. It alleges that, further to the ruling of the Court of Cassation of 9 May 2018 (No. 17-14088), the diversity obligation imposed when there is a list containing two or more candidates precludes the trade union organization from proposing a sole candidate. The Committee notes that the CGT-FO states that a trade union should, if it so wishes be able to submit a list with a sole candidate (a man or a woman), provided that each sex is represented in the electoral college, and to the extent that a man or a woman can be placed without distinction at the top of the list. The CGT-FO considers that, since the Court of Cassation allows incomplete lists, it must be possible for lists to consist of a sole candidate in order to protect the freedom of trade unions to draw up lists.

The Committee notes that the Government refers to the ruling of the Court of Cassation of 13 February 2019 (No. 18-17.042) according to which freedom of association, viewed from the perspective of freely choosing representatives, is not absolute: the Court recognized, inter alia, that: (i) the obligation imposed on trade union organizations to submit lists for occupational elections that alternately comprise candidates of both sexes proportionate to the share of women and men in the electoral college concerned is consistent with the legitimate objective of ensuring that employee representation reflects the reality of the electorate and of promoting effective gender equality; and (ii) the legislation envisaged not abstract parity but proportionality in the number of candidates with regard to the number of male and female employees in the electoral college of the enterprise.

While noting the information provided by the Government with regard to the recognition by legislation and case law of a relationship of proportionality between the number of candidates and the number of male and female employees in the electoral college of the enterprise, the Committee requests the Government to provide its comments in reply to the observations of the CGT-FO with regard to the fact that it is not possible for trade unions to put forward sole candidates.

Articles 2, 3, 6, 7 and 10. Standing of trade unions and trade union federations to take action. The Committee notes that the CGT FO alleges that in a recent decision (CE, 24 May 2017, No. 392661), the Council of State considerably restricted the standing of a trade union federation to take action by not recognizing the latter's right to challenge a prefectoral decision because of its very local scope of application, even though the subject of the dispute raised a question of principle that the trade union federation was intending to defend.

The Committee notes the Government’s indication that : (i) in accordance with section L 2132-3 of the Labour Code, occupational trade unions have the right to take legal action and may exercise all the rights of a civil party before any court in respect of acts directly or indirectly prejudicial to the collective interest of the occupation that they represent, and (ii) under the terms of section L 2133-3 of the Code : “trade union federations shall enjoy all of the rights conferred on occupational trade unions by this Part.” According to the Government, the Council of State’s decision of 24 May 2017 does not in any way restrict the capacity of unions to take legal action but merely states that in view of their purpose conferred by law and by their statutes, the standing of a trade union or trade union federation to take action in defence of the collective interest will necessarily be assessed in view of the impact of the impugned decision.

The Committee observes that the legal action in question concerned a prefectoral decision having granted an exception to the rule of Sunday rest to a single establishment of a company of retail trade of automobile equipment. The Committee notes that, in the case in question, the Council of State ruled that a departmental trade union federation defending in particular the interests of non-food trade employees, although it had affirmed at a number of federal congresses its objective of preserving the rule of Sunday rest, did not have an interest that would give it standing to apply for the prefectoral decision to be overturned because of the exclusively local nature of the activity of the company concerned which was located in a department neighbouring that of the departmental union in question. Noting the trade union federation concern that even a local exception to a legal rule or principle may be invoked in subsequent cases that affect members’ legitimate interests, and emphasizing the importance of the right of trade unions to access to justice in order to defend the collective interests of their members, the Committee requests the Government to provide more detailed information on how this right is regulated in the legislation and in case law, and to indicate in this regard the criteria used by the competent courts to define its contours, including with respect to decisions of allegedly local scope.

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The Committee notes the Government’s report, as well as the observations of the General Confederation of Labour–Force Ouvrière (CGT–FO) received on 9 October 2019. The Committee notes that the observations of the CGT–FO concern, on the one hand, aspects raised in a representation filed under article 24 of the ILO Constitution currently under examination and, on the other hand, among other issues, the free choice of trade union representatives, the assessment of trade union representativeness and the ability of trade union organizations to take legal action. The Committee requests the Government to provide its comments on the additional issues contained in the CGT–FO’s observations.

[The Government is asked to reply in detail to the present comments in 2020.]

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Article 2 of the Convention. The Committee previously requested the Government to provide information on any new developments concerning the amendment of Ordinance No. 45-2592 concerning the status of bailiffs following the Council of State Decision of 16 December 2005 which had had the effect of implicitly repealing section 10 of this Ordinance and thereby guaranteeing bailiffs the right to organize as employers and the right to collective bargaining of their occupational organizations. The Committee also requested the Government to indicate whether, in the light of this Council of State Decision, measures had been taken to explicitly repeal the similar provisions contained in the ordinances governing the status of other ministerial officers (No. 45-2590 concerning the status of notaries, No. 45-2591 concerning the status of solicitors (“avoués”) and No. 45-2593 concerning the status of judicial auctioneers).

The Committee notes with interest that a bill on the enforcement of court decisions and the conditions for practising certain regulated professions containing provisions amending Ordinance No. 45-2592 to give effect to the Council of State Decision was adopted on 11 February 2009 by the Senate. The bill also contains provisions concerning the amendment of Ordinance Nos 45‑2590 concerning notaries and No. 45-2593 concerning judicial auctioneers. With regard to Ordinance No. 45-2591 concerning solicitors (“avoués”), the Government indicates that its repeal is envisaged in a bill currently being examined by the Council of State concerning the merging of the professions of lawyer and solicitor (“avoué”) to the Court of Appeal. The Committee requests the Government to communicate any information in this respect.

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Article 2 of the Convention. In its previous comments the Committee noted that the Council of State decision of 16 December 2005 concerning Ordinance No. 45-2592 of 2 November 1945 had the effect of implicitly repealing section 10 of the Ordinance and thereby guaranteeing bailiffs’ right to organize as employers and the right to collective bargaining of their occupational organizations. The Committee notes the indication in the Government’s report that draft amendments to Ordinance No. 45-2592 are being prepared by the Chancellery, in cooperation with the Minister of Labour. The Committee requests the Government to provide information on any new developments concerning the amendments to Ordinance No. 45-2592 concerning the status of bailiffs.

The Committee recalls that a number of ordinances of 2 November 1945 concerning the status of other ministerial officers contain provisions similar to those of Ordinance No. 45-2592, thereby raising issues of compatibility with the Convention (Ordinances Nos 45-2590 concerning the status of notaries, 45-2591 concerning the status of solicitors and 45-2593 concerning the status of judicial auctioneers). The Committee requests the Government to indicate whether, in the light of the Council of State decision of 16 December 2005, measures have been taken to explicitly repeal the relevant provisions of Ordinances Nos 45‑2590, 45-2591, 45-2592 and 45-2593.

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The Committee notes the Government’s report and the detailed information supplied in response to the observations made by the General Confederation of Labour –Force ouvrière (CGT–FO) concerning the Act on social dialogue and continuity of the public service in scheduled land passenger transport of 21 August 2007 (Act No. 2007-1224).

In its previous comments, the Committee noted that, under the terms of section 5 of this Act, transport enterprises, the employer and the representative trade unions had to engage in bargaining with a view to the conclusion, before 1 January 2008, of a collective agreement on the service to be provided in the event of disruption of traffic or a strike. This provision also established that, in the absence of an applicable agreement as of 1 January 2008, a plan of the services to be provided had to be determined by the employer. The Committee recalled the principle according to which the determination of a negotiated minimum service should be limited to the operations that are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, as it restricts one of the essential means of pressure available to workers to defend their economic and social interests. The Committee also emphasized that workers’ organizations should be able, if they so wish, to participate in defining the minimum service, along with the employers and the public authorities. Finally, the Committee recalled that, in the event of disagreement, the parties might also envisage the establishment of a joint or independent body (or recourse to a judicial body by mutual consent) responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 161).

The Committee notes that the Government recalls in its reply dated 28 August 2008 that the purpose of the adopted Act is to reconcile the exercise of the right to strike with other fundamental freedoms, and that it places the social partners at the focus of the measures to be adopted in order to ensure the best coordination possible. The Government points out that the Act does not intend to establish a minimum service which would lead to the requisitioning of staff but aims to set up a system for predicting the services to be provided which makes no difference to the capacity of the strike to have an impact and apply pressure. With regard to the participation of the social partners in the mechanisms for dispute prevention and organization in the event of a strike, the Government indicates that agreements have been signed with trade unions in both the enterprises and the occupational sector concerned (for example, the agreement signed on 21 January 2008 in urban passenger transport, the extension of which making it applicable to 170 enterprises belonging to the Public Transport Union was published in the Official Journal of 15 June 2008). As regards the procedures for resolving disputes, the Government adds that national law offers a wide range of possibilities but in the transport sector there is also room for cooperation and regulation, as show by the branch negotiations which are already placed under the authority of the chairman of a joint committee, which is independent of the parties, and the task of which is to facilitate dialogue. Furthermore, within the passenger transport enterprises (RATP and SNCF), additional “social alert” clauses were signed before the 1 January 2008 deadline with five trade unions in order to ensure conformity with the provisions of the Act of 21 August 2007. According to the Government, which bases its statements on the annual statistics of the SNCF, the use of “social alert” mechanisms has more than doubled without any increase in the number of strike notices deposited; on the contrary, the number of notices leading to strikes has increased over the same period. This suggests that the periods of prior negotiation provided for by the Act do not restrict the possibility of going on strike. Finally, with regard to the possible use of a joint or independent body, the Government indicates that the setting up of such a body has not been considered necessary by the Government, Parliament or the social partners, in view of existing mechanisms. The Government also recalls that the possibility of intervention by a neutral third party to promote an amicable resolution of disputes is possible under the terms of section 6 of the Act, which provides for the appointment of a mediator by the parties. The Committee notes the information supplied by the Government.

The Committee trusts that the Government will ensure, in any dispute in the land passenger transport sector and in the absence of an agreement on the determination of the minimum service to be maintained in the event of a strike, that the principle is observed whereby the workers’ organizations concerned shall be able to participate, alongside the employers and the public authorities, in the definition of this minimum service and, in the event of disagreement, the possibility is guaranteed for the parties to have recourse to a joint or independent body, according to existing or specially established mechanisms.

The Committee is also addressing a request on a number of other points directly to the Government.

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Article 2 of the Convention. The Committee notes that the decision of the Council of State of 16 December 2005 respecting Order No. 45-2592 of 2 November 1945 had the effect of repealing implicitly section 10 of the Order and thereby guaranteeing the right to organize of bailiffs as employers and the right to collective bargaining of their occupational organizations. The Committee recalls that several Orders of 2 November 1945 governing the status of other ministerial officers contain provisions similar to those of Order No. 45-2592, thereby raising issues of compatibility with the Convention (Orders Nos 45-2590 respecting the status of notaries, 45-2591 respecting the status of barristers and 45-2593 respecting the status of judicial auctioneers). The Committee requests the Government to indicate whether, in the light of the decision of 16 December 2005 of the Council of State, measures have been taken to repeal expressly the relevant provisions of Orders Nos 45‑2590, 45-2591, 45-2592 and 45-2593.

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The Committee notes that the Government’s report has not been received. It notes that, in a communication of 31 August 2007, the Conféderation générale du travail–Force ouvrière (CGT–FO) indicates that the Act respecting social dialogue and continuity of the public service in scheduled land passenger transport of 21 August 2007 (Act No. 2007-1224) is not in conformity with the Convention.

The Committee notes that, by virtue of section 5 of this Act, transport enterprises, the employer and the representative trade unions shall engage in bargaining with a view to the conclusion, before 1 January 2008, of a collective agreement on the service to be envisaged in the event of the disturbance of traffic or a strike. This provision also establishes that, in the absence of an applicable agreement as of 1 January 2008, a plan of the envisaged services shall be determined by the employer. In this respect, the Committee recalls that the determination of a negotiated minimum service should be limited to the operations that are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, as it restricts one of the essential means of pressure available to workers to defend their economic and social interests. The Committee emphasizes that workers’ organizations should be able, if they so wish, to participate in defining the minimum service, along with employers and the public authorities. The Committee also recalls that, in the event of disagreement, the parties might also envisage the establishment of a joint or independent body (or recourse to a judicial body by the mutual consent of parties) responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 161). The Committee therefore requests the Government to take the necessary measures to amend section 5 of Act No. 2007‑1224 taking into account the principles relating to the determination of a negotiated minimum service referred to above as well as to provide for a reasonable period of time for the negotiation of a minimum service.

The Committee requests the Government to transmits its replies to the observations of the CGT–FO.

The Committee is addressing a request on other issues directly to the Government.

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The Committee notes the Government’s report.

Article 2 of the Convention. With reference to its previous comments, the Committee recalls that Order No. 45-2592 does not explicitly recognize the right to organize of bailiffs, as employers, and that their compulsory membership of the National Chamber of Bailiffs, which enjoys exclusive competence for collective bargaining, raises issues of compatibility with the Convention. The Committee notes the Government’s indication that no measure has been taken in this respect as the issue of the right to collective bargaining of the occupational organizations of bailiffs is the subject of an appeal to the Council of State. The Committee requests that the Government keep it informed of any new developments in this respect and to provide a copy of the ruling of the Council of State as soon as it is issued.

The Committee also recalls that the Orders of 2 November 1945 governing the status of other ministerial officers contain provisions similar to those of Order No. 45-2592, thereby raising issues of compatibility with the Convention (Orders Nos. 45-2590, 45-2591 and 45-2593). The Committee asks the Government to provide information on this matter in its next report.

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The Committee notes the information contained in the Government’s report as well as the observations thereon submitted by the French Democratic Confederation of Labour (CFDT). The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2233 (see 332nd Report, paragraphs 614-646) relating to the right to organize of bailiffs, as employers, pursuant to Order No. 45-2592 regulating their status. The Committee wishes to make the following comments on this subject.

Article 2 of the Convention. 1. Right of employers without distinction whatsoever to establish and join organizations. The Committee notes that Order No. 45-2592 does not explicitly recognize the right to organize of bailiffs, as employers. The Committee takes due note that this right does not currently appear to be contested in practice and that a National Union of Bailiffs has existed since 1968. However, bearing in mind that in the past the Order has been interpreted as prohibiting the exercise of the right to organize by bailiffs, the Committee requests the Government to take the necessary measures to ensure that Order No. 45-2592 explicitly affords bailiffs the right to organize and the related rights, in accordance with Article 2 of the Convention, so that the recognition of their right to organize is no longer a matter of interpretation.

2. Right of employers to establish organizations of their own choosing. The Committee notes that, by virtue of Order No. 45-2592, bailiffs are under the obligation to become members of the National Chamber of Bailiffs. In the same way as the Committee on Freedom of Association, this Committee considers that membership of the National Chamber of Bailiffs, made compulsory by law, combined with the exclusive competence of the latter in relation to collective bargaining, is an infringement of the right of bailiffs, as employers, to choose in full freedom the organization responsible for defending and furthering their interests, in a manner that is incompatible with Article 2. The Committee therefore requests the Government to amend Order No. 45-2592 so as to guarantee the right of bailiffs to choose in full freedom the organization which will be responsible for furthering and defending their occupational interests.

Furthermore, the Committee notes that the Orders governing the status of other ministerial officers contain provisions similar to those of Order No. 45-2592, thereby raising issues of compatibility with the Convention. The Committee refers in this respect to the following Orders of 2 November 1945: No. 45-2590 respecting the status of notaries, No. 45-2591 respecting the status of attorneys, and No. 45-2593 respecting the status of official appraisers. The Committee also requests the Government to examine the provisions of the above Orders in the light of the comments made concerning Order No. 45-2592 and to draw the necessary conclusions. The Committee requests the Government to keep it informed in relation to all these matters in its next report.

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The Committee notes the information provided by the Government in its report. It also notes the comments of the General Confederation of Labour - Force Ouvrière concerning the difficulties in establishing trade unions and carrying out trade union activities in small and medium-sized enterprises. Furthermore, Force Ouvrière states that in enterprises with fewer than 50 employees there are no facilities permitting the effective exercise of the right to organize and that the rate of authorizations for the dismissal of staff representatives remains abnormally high.

The Committee requests the Government to forward its comments concerning these observations in its next report.

[The Government is asked to report in detail in 2001.]

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The Committee notes the information contained in the Government's report in reply to the comments made by the French Democratic Confederation of Labour (CFDT) concerning the difficulties trade union organizations have in respect of their establishment and activities in small and medium-sized enterprises.

The Committee notes in particular the information supplied by the Government in its report to the effect that the Labour Code authorizes representative trade unions to establish a trade union section in all enterprises, whatever the nature of their activities, their legal constitution or number of workers and that this faculty is not subject to any formal condition. The Committee also notes the Government's statement according to which section 6 of Act No. 96-985 of 12 November 1996, endorsed by the Constitutional Council, permits collective bargaining to be conducted in enterprises having no trade union delegates and in enterprises of fewer than 50 employees having no staff delegates acting as trade union delegates, either by elected representatives or by one or more mandated employees. The Committee notes, finally, that according to the information supplied in the Government's report, the Court of Cassation has already allowed that in enterprises where the legal conditions for designating a trade union delegate are not met, industrial agreements may be negotiated and signed by employees holding a mandate given by a representative trade union.

In the present state of information, the Committee considers that the legislation and jurisprudence provided by the Government do not appear to contravene Article 11 of the Convention.

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The Committee notes the comments made by the French Democratic Confederation of Labour (CFDT) concerning Article 11 of the Convention to the effect that the law and jurisprudence do not take all the measures that are necessary to ensure that workers and employers may freely exercise the right to organize, and particularly that trade union organizations encounter significant difficulties in respect of their establishment and activities in small and medium-sized enterprises. The Committee requests the Government to transmit the comments that it deems appropriate in this respect.

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With reference to its previous general observations and the comments of the National Federation of Maritime Trade Unions (FNSM), the Committee notes that under section 6 of Act No. 52-1322 of 15 December 1952 establishing a Labour Code in the overseas territories, members of a trade union who are responsible for its administration or management must be of French nationality. Since Order No. 87.190 of 20 March 1987 concerning the registration and commissioning of vessels in the French Southern Antarctic Territories provides that the proportion of crew members of French nationality may not be less than 25 per cent of the seafarers registered on the crew list, the Committee considers that section 6 of Act No. 52-1322 is liable to impair the right of foreign seafarers to elect their trade union officials in full freedom, guaranteed by Article 3 of the Convention.

It therefore requests the Government to indicate in its next report whether section 6 of Act No. 52-1322 is still in force or whether it has been brought into line with section L.411-4 of the French Labour Code, which provides that any foreigner of 18 years or over who is a member of a trade union may have access to office in the administration or management of a trade union.

As regards the FNSM's comments to the effect that Order No. 87.190 of 20 March 1987 signifies that 75 per cent of the crews of vessels registered in these territories would be made up of foreign seafarers engaged under discriminatory conditions while French seafarers would be left unemployed, the Committee considers that this is not a freedom of association issue.