Arrêt Dehaene (1950): Right to Strike in Public Services

The Arrêt Dehaene, decided by the Conseil d’État on 7 July 1950, is a landmark decision establishing the right to strike in the French public service as a principle of constitutional value. The case defined the legal framework for reconciling the right to strike with the continuity of public services (continuité du service public), principles that remain central to French labour and administrative law. The decision is fundamental to understanding the balance between individual rights and collective needs in French public law.

Historical Context

The right to strike was expressly recognised by the preamble to the 1946 Constitution, which declared that “the right to strike shall be exercised within the framework of the laws that govern it.” This constitutional recognition was a response to the pre-war legal uncertainty about strikes and reflected the post-war compromise between labour rights and social order. However, the 1946 Constitution did not specify how the right applied to public sector employees, leaving the legislature and courts to define its scope.

The question was particularly acute in the public services, where strikes could disrupt essential services such as transportation, healthcare, and education. The Vichy regime had prohibited strikes entirely, and even before the war, public sector employees faced restrictions on their right to strike. The new constitutional framework required a fresh approach to balancing the right to strike with the public interest.

Facts

M. Dehaene was a teacher in the public education system who participated in a strike organised by the teachers’ union. The French administration imposed disciplinary sanctions against him for participating in the strike. He challenged the sanctions before the Conseil d’État, arguing that the right to strike, recognised by the Constitution, protected his participation in the strike. The administration contended that public employees did not have the same right to strike as private sector employees and that the strike violated the principle of continuity of public service.

Decision

The Conseil d’État held that the right to strike in the public service is a constitutional principle that cannot be entirely excluded. The preamble to the 1946 Constitution, which recognised the right to strike, applied to all workers, including public employees. However, the Conseil also recognised that the right could be regulated and limited to ensure the continuity of public services. The decision established that restrictions on the right to strike in the public service must be necessary, proportionate, and justified by the requirements of public order and service continuity.

The Conseil held that in the absence of specific legislation regulating the right to strike in the public service, the administration could impose reasonable restrictions to ensure the functioning of essential services. The decision gave the government broad discretion to regulate strikes in the public service but required that any restrictions must be based on law and must not deny the right entirely.

The Dehaene Framework

The Arrêt Dehaene established a three-part framework for the right to strike in the public service. First, the right to strike is constitutionally guaranteed and applies to all workers, including public employees. Second, the right can be limited by law, but such limitations must respect the essential content of the right. Third, in the absence of legislation, the administration may impose temporary restrictions necessary to ensure the continuity of public services, but these must be proportionate and justified by the circumstances.

The framework recognised that certain categories of public employees may be subject to special restrictions. Employees whose functions are essential to public order, national security, or public health may be required to provide minimum service during strikes. The Conseil d’État later clarified that the maintenance of public order could justify requiring certain employees to remain at work during a strike.

Subsequent Development

The Arrêt Dehaene provided the framework for subsequent legislation on the right to strike in the public service. The Law of 31 July 1963 on the right to strike in the public service codified the principles established by the Conseil d’État, requiring unions to give advance notice of strikes and prohibiting certain categories of workers from striking. The law also established a conciliation procedure for resolving disputes before strikes could begin.

The right to strike in essential public services has been further regulated by subsequent legislation. The Law of 21 August 2007 on social dialogue and continuity of public service in land passenger transport established a minimum service requirement for public transportation during strikes. The law requires unions to declare their intention to strike at least 48 hours in advance and requires employers to provide information about the expected service level.

The Conseil d’État has continued to develop the framework through its case law. In the 1979 Compagnie Air France decision, the Conseil held that the administration could take measures to ensure the continuity of public services during strikes, including requisitioning striking employees in exceptional circumstances. However, such measures are subject to strict conditions: they must be temporary, proportionate, and justified by an immediate threat to public order.

Comparative Significance

The French approach to the right to strike in the public service differs from that of many other European countries. French law recognises a broad constitutional right to strike, with limitations imposed by legislation and judicial interpretation rather than by constitutional exclusion. The Arrêt Dehaene established that the right applies to all workers, including public employees, subject to proportionate limitations.

This approach contrasts with the position in some common law jurisdictions, where the right to strike is not constitutionally protected and is subject to more extensive legislative restriction. The French model reflects the post-war constitutional settlement in which social and economic rights were given constitutional status alongside traditional civil and political rights.

Legacy

Arrêt Dehaene is the foundational decision on the right to strike in French public law. It established the constitutional status of the right while recognising the legitimate interests of public service continuity. The framework established by the decision remains the basis for regulating strikes in the public service, providing a flexible framework that balances individual rights with collective needs.