Constitutional Court Upholds Strict Conditions For Employers To Unilaterally Attack Picketting Actions During Strikes

Context of the case

In the context of strike actions opposing the franchising of certain stores by a supermarket chain, the company obtained an injunction against picketing through an ex parte request (unilateral and very fast procedure) to the President of the Court of First Instance in Liège, based on Article 584, paragraph 4 of the Belgian Judicial Code. However, during later proceedings, it was argued that the conditions outlined in Article 584, paragraph 4 were not met, requiring the earlier injunction to be overturned.

Article 584, paragraph 4 of the Judicial Code allows ex parte proceedings only in cases of "absolute necessity." This includes situations where:

1. A surprise effect is essential,
2. It is impossible to precisely and reliably identify the individuals against whom the measures are to be enforced, or
3. There is extreme urgency.

The President of the Court of First Instance in Liège ruled that the first two conditions were not applicable. Additionally, since the conflict had been ongoing for five months, it was difficult to argue that there was still "extreme urgency". As a result, the President referred a preliminary question to the Constitutional Court, asking whether the requirement of "absolute necessity" for ex parte proceedings under Article 584, paragraph 4 constitutes a violation of:

• The right to property (e.g., Article 16 of the Constitution, Article 1 of Protocol No. 1 to the European Convention on Human Rights), and
• The freedom of enterprise (Article II.3 of the Code of Economic Law and Article 16 of the EU Charter of Fundamental Rights).

Decision by the Constitutional Court:

The Constitutional Court focused solely on the right to property, as the freedom of enterprise is not explicitly enshrined in the Belgian Constitution. Furthermore, the Court cannot assess provisions of the Code of Economic Law or the EU Charter unless the rights they protect have analogous counterparts in the Constitution.

Property Rights under European Human Rights Law

The Court considered the European Court of Human Rights' (ECtHR) case law on property rights. It affirmed that:

• The blocking of access to retail outlets by lawful striking actions constitutes an interference with the company's right to peaceful enjoyment of its property.

The key issue was whether Article 584, paragraph 4 of the Judicial Code provides an effective legal remedy to uphold this right.

Balancing Rights

The Court noted that immediate action may be necessary to protect certain rights. However:

• Ex parte proceedings deviate from the principle of adversarial justice and should be allowed only in narrowly defined circumstances.
• These situations must be interpreted restrictively and the deviation must be temporary. This limitation safeguards the right to a fair trial.

Additionally, this restriction supports the protection of the right to strike, which is a legitimate public interest objective. Consequently, the Court found that this limitation strikes a fair balance between the right to a fair trial and the right to strike on the one hand, and the right to property on the other.

Conclusion:

Article 584, paragraph 4 of the Judicial Code does not violate the right to property. The framework ensures a reasonable balance between competing rights and public interests.

source: Constitutional Court 14 November 2024, no. 123/2024, const-court.be

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