This guest post was written by Isabelle Van Hiel, PhD Researcher and Teaching Assistant at the social law section of the Department of Criminology, Criminal Law and Social Law of the Law Faculty of Ghent University.
In two recent cases of 2 October 2014 the ECtHR had to decide on the freedom of association of military personnel. Although the Court already examined cases involving trade union freedom within the police and the civil service, it was the first time that the Court considered the specific situation of the armed forces.
In Matelly v. France (application no. 10609/10), an officer in the French gendarmerie which forms in France a part of the military, was forced to resign from an association named Forum gendarmes et citoyens. The forum was considered by the Director General of the National Gendarmerie as a trade-union-like occupational group, which was prohibited under Article L. 4121-4 of the Defence Code. In ADEFDROMIL v. France (application no. 32191/09) the Association de Défense des Droits des Militaires (ADEFDROMIL), a professional organisation for servicemen, complained about its denial of access to justice, as it was considered to be in breach of the same provisions of Article L. 4121-4 of the Defence Code. This article L. 4121-4 declares the existence of occupational organisations for military personnel as well as the membership of such organisations incompatible with the prescriptions of the military discipline.
Right to form and join a trade union is essential to freedom of association
The Court reduced the alleged articles in Matelly (10 and 11) and ADEFDROMIL (6, 11, 13 and 14) to article 11 and examined the complaints solely from this perspective. It emphasised that the right to freedom of association, of which trade-union freedom was one aspect, did not exclude any occupation or office from its scope. Even though article 11 provided, particularly in respect of members of the armed forces, that “lawful restrictions” could be imposed by the states, the Court reiterated that those “lawful restrictions” were to be construed strictly and to be confined to the “exercise” of the rights in question, and must not impair the very essence of the right to organise. In this connection, the Court pointed out that the right to form and join a trade union was one of the essential elements of the freedom in question, as was already established in earlier case law related to the public sector, like Demir and Baykara. As it was not disputed that there was an interference of the state in the exercise of his rights guaranteed by the convention, only had to be established whether the interference was prescribed by law, pursued a legitimate aim and had been necessary in a democratic society.
In both cases the interference had been prescribed by law, since the Defence Code specifically distinguished between membership of ordinary associations, which was authorised, and membership of occupational groups, which was forbidden. In addition, the Conseil d’État had ruled that an association which existed to defend the pecuniary and non-pecuniary interests of military personnel belonged to the second category. Holding that this prohibition pursued a legitimate aim, namely preservation of the order and discipline necessary in the armed forces, of which the gendarmerie formed a part, the Court then examined whether this interference had been necessary in a democratic society. It noted at the outset that the relevant provisions of the Defence Code prohibited military personnel, purely and simply, from joining any trade-union-like group. While the Court noted that the French state had put in place special bodies and procedures to take into account the concerns of military personnel, it nonetheless considered that those institutions did not replace the granting of freedom of association to military personnel, a freedom which included the right to form and join trade unions.
Restrictions not proportionate and necessary in a democratic society
The Court was aware that the special nature of the armed forces’ mission required that trade-union activity – which, in fulfilling its purpose, could bring to light the existence of critical views regarding certain decisions that affected the non-pecuniary and pecuniary situation of military personnel – be adapted to those particular circumstances. It therefore emphasised that, under Article 11, restrictions, even significant ones, could be imposed on the forms of action and expression of an occupational association and of the military personnel who joined it, provided that such restrictions did not deprive them of the general right of association in defence of their occupational and non-pecuniary interests. However, in Matelly, the Court noted that the order to resign from the association had been taken on the sole basis of its memorandum of association and the possible existence, in a relatively wide interpretation of its purpose, of a trade-union dimension. Moreover, the authorities had not had regard to the applicants attitude and his willingness to comply with his obligations by amending the association’s memorandum. With regard to ADEFDROMIL, the Court found out that the applicant was deprived of every right to act in justice only because of its occupational interests, while the concrete restrictions on the right to act in justice must be justified by the specific missions of the military.
The Court concluded that the grounds put forward by the authorities to justify the interference in both the applicants rights had been neither relevant nor sufficient, given that their decision amounted to an absolute prohibition on military personnel joining a trade-union-like occupational group which had been set up to defend their occupational and non-pecuniary interests. This blanket ban on forming or joining a trade union encroached on the very essence of freedom of association, could not be considered proportionate and necessary in a democratic society. Consequently, there had been a violation of article 11.
Military personnel less different from other categories of workers
The reasoning of the Court in both Matelly and ADEFDROMIL is remarkable in two ways. Traditionally, the second sentence of article 11(2) is considered as a separate ground for restrictions on the exercise of the freedom of association of members of armed forces, the police and the administration of the state. By applying the requirements of the first sentence of article 11(2) which allows for restrictions on the exercise of these rights only when its stipulations are fulfilled, the Court implicitly rejects this interpretation and reversed the earlier case law of the commission. As a result the two sentences of article 11(2) have to be read as one, squaring the members of the armed forces, the police and the administration with other categories of workers.
In addition, it must be observed that the Court in its judgment made no distinction between the police and the military. The European Committee on Social Rights, by contrast, reprimanded France in its Conclusions 2002 and 2004 for interfering with the right to freedom of association of police officers but not doing the same for military personnel. A new collective complaint of French gendarmes on the issue was only recently declared admissible. Apparently, the Court aimed for a fundamental decision on the freedom of association of military personnel. This is endorsed by the issue by the Court of a document “Questions and Answers on the Matelly v. France judgment”. The document puts forward the important innovation of the judgment, assessing that it is not yet a final decision, as the parties have three months to request that the case be referred to the Grand Chamber, but that it might necessitate the Council of Europe members to adjust their legislation. Currently 19 out of 42 Council of Europe member states which possess armed forces do not guarantee their right of association, and 35 do not guarantee their right to collective bargaining.
Although not stressed out by the Court, those member states might also have to reconsider their legislation on the right to strike for military personnel, as the European Committee on Social Rights already decided in 2012 that an absolute ban on the right to strike for police officers constituted a violation of article 5 and 6 of the European Social Charter. In the present situation, applying the same principles on the members of the armed forces, seems difficult to avoid.
 Article L. 4121-4 : « L’exercice du droit de grève est incompatible avec l’état militaire. L’existence de groupements professionnels militaires à caractère syndical ainsi que l’adhésion des militaires en activité de service à des groupements professionnels sont incompatibles avec les règles de la discipline militaire. »
 F. DORSSEMONT, “The Right to Take Collective Action under Article 11 ECHR” in F. DORSSEMONT, K. LÖRCHER and I. SCHÖMANN (eds.), The European Convention on Human Rights and the Employment Relation, Oxford and Portland, Oregon, Hart Publishing, 2013, 351.
 ECHR 20 January 1987, No 1160/11603/85.
 ECSR, No. 101/2013, European Council of Police Trade Unions (CESP) v. France.
 ECSR, No. 83/2012, European Confederation of Police (EUROCOP) v. Ireland.