Supreme Court confirms - Right to strike is not absolute
By upholding the judgment concerning the president of a trade union, the Supreme Court makes clear that the right to strike is not absolute.
On 24 June 2016, strikers placed vehicles across roads in the Antwerp port area to create five roadblocks and also set car tyres alight in the middle of these roads. Four of the five roadblocks were removed without major problems through the intervention of the police. However, at one roadblock the demonstrators, led by the president of the trade union, continued to block the road.
On 26 June 2019, the Antwerp Court of Appeal found that the trade union president had infringed Article 406, paragraph 1 of the Penal Code. This article concerns the malicious obstruction of traffic on the road by any act that could endanger the traffic or cause accidents. The trade union president considered that this conviction violated his right to strike and appealed to the Supreme Court.
On 7 January 2020, the Supreme Court declared that the appeal judge had correctly ruled that Article 406, first paragraph of the Penal Code had been infringed and that the right to strike had not been violated.
Article 406, first paragraph of the Penal Code
As mentioned above, Article 406, first paragraph of the Penal Code sanctions the malicious obstruction of traffic on the road by any act that could endanger the traffic or cause accidents.
The president of the trade union argued that there was no malicious intent. First of all, he stated that when he obstructed the road, he did not know or should not have been expected to know that this was a potential danger to traffic. The Supreme Court ruled that the latter is not necessary: the required intention consists in deliberately obstructing the traffic as such.
In addition, the president argued that the appeal judges could not legitimately rule that he was acting maliciously because the road hindrance was functional in the context of the strike action. However, the Supreme Court confirmed that it is not because a road hindrance is created to further trade union demands that it loses its malicious character.
The right to strike
The Supreme Court further clarified in the judgment that it follows from Articles 10 and 11 of the ECHR that the right to strike or to demonstrate are not absolute rights, but that the exercise of those rights may be subject to limitations. Such limitations must meet the objectives of general interest and must not constitute a disproportionate and intolerable interference affecting the very essence of the protected rights.
According to the Court, the Antwerp Court of Appeal therefore rightly ruled that the safety and freedom of citizens cannot simply be set aside by other protected rights, such as the right to strike. After all, nothing prevented the president from exercising his right to strike in a normal way.
Action point
It is important to bear in mind that the highest Belgian Court does not consider that the right to strike is granted a free pass under criminal law. The safety and freedom of citizens cannot automatically be overridden by certain fundamental rights, such as the right to strike.