|Council of State
N ° 01645 Published in Recueil Lebon
Mr. Jean Donnedieu de Vabres, Rapporteur
Mr. Gazier, Government Commissioner
Mr. Cassin, President
Reading of July 7, 1950
IN THE NAME OF THE FRENCH PEOPLE
Having regard to the request presented by Sieur Dehaene [Charles], head of office at the Prefecture of Indre-et-Loire, the said request recorded at the litigation secretariat of the Council of State on March 10, 1949, and tending that he please the Council to annul: 1 ° an order of the prefect of Indre-et-Loire dated July 13, 1948 suspending him from his functions; 2 ° an order of the prefect of Indre-et-Loire dated July 30, 1948 imposing a reprimand on him; Having regard to the Constitution of the French Republic; Considering the laws of October 19, 1946, December 27, 1947 and September 28, 1948; Considering the ordinance of July 31, 1945;
With regard to the measure of suspension: Considering that it emerges from the documents in the file that the measure of suspension of which the Sieur Dehaene was struck on July 13, 1948 was reported on July 20, 1948, prior to the lodging of the appeal; that thus the request is, on this point, without object;
Regarding reprimand: Considering that Mr. Dehaene maintains that this sanction was taken in disregard of the right to strike recognized by the Constitution;
Considering that by indicating, in the preamble to the Constitution, that “the right to strike is exercised within the framework of the laws which regulate it”, the Constituent Assembly intended to invite the legislator to make the necessary conciliation between the defense of professional interests, of which a strike is one of the modalities, and the safeguarding of the general interest to which it may be liable to prejudice;
Considering that the laws of December 27, 1947 and September 28, 1948, which were limited to subjecting the personnel of republican security companies and the police to a special status and depriving them, in the event of concerted termination of service, of disciplinary guarantees , cannot be regarded, on their own, as constituting, as far as public services are concerned, the regulation of the right to strike announced by the Constitution;
Considering that in the absence of this regulation, the recognition of the right to strike cannot have the consequence of excluding the limitations which must be made to this right, as to any other, in order to avoid its abusive use or contrary to the requirements of public order; that in the current state of the legislation it is for the government, responsible for the proper functioning of public services, to determine itself, under the supervision of the judge, with regard to these services, the nature and extent of said limitations ;
Considering that a strike which, whatever the reason, would have the effect of compromising in its essential attributions the exercise of the prefectural function would seriously undermine public order; that from then on the government was able legally to prohibit and repress the participation of the heads of prefecture offices in the strike of July 1948;
Considering that it is common ground that Sieur Dehaene, head of office at the prefecture of Indre-et-Loire, notwithstanding this prohibition, went on strike from July 13 to 20, 1948; that it follows from the foregoing that this attitude, if it was inspired by a concern for solidarity, nonetheless constituted a fault such as to justify a disciplinary sanction; that thus the applicant is not founded to maintain that by inflicting a blame the prefect of Indre-et-Loire exceeded its powers;
DECIDES:DECIDES: Article 1 – The aforementioned request of Sieur Dehaene is rejected. Article 2 – Dispatch of this decision will be sent to the Minister of the Interior.
Case law precedents: Cf. Chantreau, 1950-07-07, similar decision. See Mrs. Lettery, 1950-07-07, similar decision. See Paulx, 1950-07-07, similar decision. Cf. Desplanques, 1950-07-07, similar decision. See Miss Micallef, 1950-07-07, similar decision
Analysis by the Council of State
By the Dehaene decision, the Council of State judges that in the absence of applicable law, it is for the heads of service to regulate the right to strike of civil servants.
For a long time, officials were denied the right to strike. It was not that the law expressly prohibited it, but it seemed incompatible with the requirements of public service and the safeguard of public order and the authority of the State (cf. CE, August 7, 1909, Winkell , p. 826). The Preamble to the 1946 Constitution had however modified the legal data of this question when the Council of State was brought to rule on the blame inflicted on Sieur Dehaene, head of office in a prefecture, because of his participation in a strike. in which the Minister of the Interior had prohibited officials from participating. This Preamble provides that “
The Council of State therefore found itself in a delicate legal alternative. It was not difficult to admit that this provision of the Preamble had normative value for the executive power. But, for lack of the legislator having regulated the matter, the High Assembly could hardly but remain with the previous jurisprudence on the grounds that the provision of the Preamble was not applicable without an application text; or else admit without limitation the exercise of the right to strike by civil servants. None of these solutions was satisfactory: there is little doubt that public order requires that the right to strike of civil servants be limited; but, conversely,
At the suggestion of its government commissioner, the Council of State embarked on a third path consisting in judging that in the absence of applicable law, it is for the heads of service to regulate the right to strike of civil servants and ” organize the necessary reconciliation between this right and the continuity of public service, which, by a decision of July 25, 1979, the Constitutional Council elevated to the rank of principle of constitutional value.
On a normative level, the 1958 Constitution did not change the facts of the question since it took over the Preamble of 1946 and the legislator persists, except by a few isolated texts, in particular the law of July 31, 1963 which prohibits certain conditions of the strike in the public services and the law of July 26, 1979 which regulates the strike of the agents of the radio and television, not to legislate on the matter. Legislative provisions have however been introduced to prohibit the right to strike for certain categories of agents (soldiers and magistrates, for example).
The administrative judge therefore regularly applies the still valid principles that he identified in his Dehaene decision (for a recent case of application, see November 30, 1998,Ms Rosenblatt et al., Tp987). On this occasion, and taking into account the constraints and the importance of the public service concerned, the judge checks that the limits placed on the right to strike by the heads of service are proportionate to the requirements of safeguarding public order. While the heads of services may prohibit the right to strike from certain officials or provide for a minimum service, they cannot take too general measures which have the effect of making the exercise of the right to strike in practice impossible.