Boycott
RELEVANT LEGAL FRAMEWORK Domestic legislation and collective agreements 59. Article 101 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in 2014, reads: Article 101 “Everyone has the right to form, join and leave associations, including trade unions and political parties. All people may meet in peaceful assemblies and demonstrations. The Government is not entitled to employ military force against citizens of the State, except in accordance with the law, unless an assembly disturbs the public peace and does not immediately disperse after the Articles of the statute book relating to riots have been read out clearly three times by the civil authority.” 60. Sections 2 and 3 of the Act of 5 December 1947 concerning boycotts ( boikottloven ) read: Section 2 “A boycott is unlawful: (a) when it serves an unlawful purpose or cannot achieve its goal without causing a breach of the law; (b) when it is executed or maintained by unlawful means or in an unnecessarily provocative or offensive manner, or on the basis of false or misleading information; (c) when it will harm important public interests or have an unwarranted effect, or when the interest pursued through the boycott is incommensurate with the harm it will cause; (d) when it is executed without the party against whom it is aimed having been given reasonable notice, or when this party and those who are encouraged to participate in the boycott have not been sufficiently informed in advance of the grounds for the boycott.” Section 3 “If notification has been given of a boycott, a legal action may be brought to decide whether it is lawful. Conciliation proceedings before a Conciliation Board are not necessary in cases concerning the lawfulness of a boycott or ... compensatory damages for losses caused by a boycott. If a boycott has been executed or announced, a court may, at the request of the person against whom the boycott is directed, issue a temporary injunction prohibiting the boycott until it has been decided whether it is lawful.” 61. Sections 1 and 2 of the EEA Act of 27 November 1992 ( Eøs-loven ) read as follows: Section 1 “The provisions in the Main Part of the Agreement on the European Economic Area shall apply as Norwegian law ...” Section 2 “Provisions of law that serve to fulfil Norway’s obligations under the Agreement shall, in the event of conflict, take precedence over other provisions regulating the same matter ...” 62. Sections 2 and 3 of the Human Rights Act of 21 May 1999 ( menneskerettsloven ) read: Section 2 “The following Conventions shall have the force of Norwegian law in so far as they are binding for Norway: 1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: ...” Section 3 “The provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.” 63. Subsequent to the Supreme Court judgment in this case, NHO and LO and NTF concluded a collective agreement for ports and terminals ( Havne- og terminaloverenskomsten ), which replaced the Framework Agreement, in which there is no system with priority for registered dockworkers. EEA and EU law material 64. The respondent State is a member of the European Free Trade Association (EFTA) and party to the 1992 Agreement on the European Economic Area (the EEA Agreement), entered into by three of the EFTA Member States (Iceland, Liechtenstein and Norway (the EEA EFTA States)), the European Union (EU) and the EU Member States. 65. The EEA Agreement extends the EU internal market to the EEA EFTA States by creating rules applicable to them equivalent to those applicable to the EU Member States under the EU Treaties and acts adopted in application of those treaties. Accordingly, the substantive rules in the EEA Agreement, within the areas covered by that agreement, essentially mirror the corresponding rules today found in the Treaty on the Functioning of the European Union (TFEU). They include the right to freedom of establishment provided for in Article 49 of the TFEU, the equivalent of which is found in Article 31 of the EEA Agreement. 66. Article 31 of the EEA Agreement reads as follows: “1. Within the framework of the provisions of this Agreement, there shall be no restrictions on the freedom of establishment of nationals of an EC Member State or an EFTA State in the territory of any other of these States. This shall also apply to the setting up of agencies, branches or subsidiaries by nationals of any EC Member State or EFTA State established in the territory of any of these States. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of Article 34, second paragraph, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of Chapter 4. 2. Annexes VIII to XI contain specific provisions on the right of establishment.” 67. The CJEU has several times given judgments in which the balancing of the fundamental right to collective action with internal market economic freedoms was at issue. In Viking Line, cited above, for example, it concluded that collective action initiated by a trade union or a group of trade unions against a private undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which were liable to deter it from exercising freedom of establishment, fell within the scope of what is currently Article 49 TFEU, and that a collective action such as that at issue in that case constituted a restriction on the freedom of establishment. It found also that that restriction could, in principle, be justified by an overriding reason of public interest, such as the protection of workers. In Laval, cited above, the CJEU also recognised that the right to take collective action for the protection of workers against possible social dumping may constitute a public interest objective. However, it had to be established that the restriction was suitable for ensuring the attainment of the legitimate objective pursued and did not go beyond what was necessary to achieve that objective. 68. In Commission v. Spain (C-576/13, EU:C:2014:2430, 11 December 2014) the CJEU held that, by obliging undertakings of other EU Member States wishing to exercise the activity of cargo-handling in Spanish ports of general interest, first, to register with the Dockers’ Management Public Limited Liability Company ( Sociedad Anónima de Gestion de Estibadores Portuarios ) and, as appropriate, to hold shares in that company and, secondly, to employ as a priority workers provided by that company, including a minimum number on permanent contracts, Spain had failed to fulfil its obligations under Article 49 TFEU. However, the CJEU accepted that the port labour scheme in question was aimed at protecting workers and ensuring the regularity, continuity and quality of cargo handling, both of which were overriding reasons of general interest. The infringement in that case was based on the Spanish Government’s failure to demonstrate that the impugned restrictions were necessary and proportionate, as well as acceptance of the Commission’s argument to the effect that there were means less restrictive of the freedom of establishment to achieve the legitimate aims pursued (ibid., § 55). 69. The compatibility of a national dock work organisation system – which included a requirement to rely on recognised dockers to perform dock work – with several provisions of EU law, including once again those on the freedom of establishment and freedom to provide services – was also recently examined by the CJEU in Katoen Natie Bulk Terminals NV and General Services Antwerp NV v. Belgische Staat and Middlegate Europe NV v. Ministerraad (Joined cases C-407/19 and C ‑ 471/19, EU:C:2021:107, 11 February 2021). The first count of the operative part of the judgment given in that case reads as follows: “Articles 49 and 56 TFEU must be interpreted as not precluding national legislation which obliges persons or undertakings wishing to carry out port activities in a port area – including activities which, strictly speaking, are unrelated to the loading and unloading of ships – to have recourse only to dockers recognised as such in accordance with the conditions and arrangements laid down pursuant to that legislation, provided that those conditions and arrangements, first, are based on objective, non-discriminatory criteria known in advance and allow dockers from other Member States to prove that they satisfy, in their State of origin, requirements equivalent to those applied to national dockers and, second, do not establish a limited quota of workers eligible for such recognition.” In answer to another question referred to it by the Belgian Council of State and Constitutional Court in that case, the CJEU held, at § 78, that: “national provisions [such as those at issue] organising dock work are not, as such, incompatible with the freedoms enshrined in Articles 49 and 56 TFEU, but that the assessment of the compatibility with those freedoms of the regime established pursuant to such provisions requires a holistic approach, taking into consideration all the conditions and arrangements for the implementation of such a regime.” In that case the CJEU pointed out other aspects of the applicable national legislation which would fall foul of Articles 49 and 56 TFEU. International and comparative law material 70. Articles 2 and 3 of ILO Convention No. 137 concerning the Social Repercussions of New Methods of Cargo Handling in Docks, adopted in 1973 and ratified by Norway on 10 June 1974 (the Dock Work Convention) read: Article 2 “1. It shall be national policy to encourage all concerned to provide permanent or regular employment for dockworkers in so far as practicable. 2. In any case, dockworkers shall be assured minimum periods of employment or a minimum income, in a manner and to an extent depending on the economic and social situation of the country and port concerned.” Article 3 “1. Registers shall be established and maintained for all occupational categories of dockworkers, in a manner to be determined by national law or practice. 2. Registered dockworkers shall have priority of engagement for dock work. 3. Registered dockworkers shall be required to be available for work in a manner to be determined by national law or practice.” 71. Articles 3 and 11 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and ratified by Norway on 4 July 1949) provide as follows: Article 3 “1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.” Article 11 “Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.” 72. In its Digest of decisions and principles (fifth (revised) edition, 2006) the ILO Committee of Freedom of Association (“the CFA”) stated among other things as follows in the sections entitled “Right of organizations freely to organize their activities and to formulate their programmes”; “Other activities of trade union organizations (protest activities, sit-ins, public demonstrations, etc.) and “Collective bargaining”; “Subjects covered by collective bargaining”: “518. The boycott is a very special form of action which, in some cases, may involve a trade union whose members continue their work and are not directly involved in the dispute with the employer against whom the boycott is imposed. In these circumstances, the prohibition of boycotts by law does not necessarily appear to involve an interference with trade union rights. ... 915. As regards the legislative ban on including secondary boycott clauses in collective agreements, the Committee has considered that restrictions on such clauses should not be included in the legislation.” 73. The decision of the European Committee on Social Rights’ of 3 July 2013 in the case of Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden (Complaint No. 85/2012) includes the following: “121. The Committee further considers that legal rules relating to the exercise of economic freedoms established by State Parties either directly through national law or indirectly through EU law should be interpreted in such a way as to not impose disproportionate restrictions upon the exercise of labour rights as set forth by, further to the Charter, national laws, EU law, and other international binding standards. In particular, national and EU rules regulating the enjoyment of such freedoms should be interpreted and applied in a manner that recognises the fundamental importance of the right of trade unions and their members to strive both for the protection and the improvement of the living and working conditions of workers, and also to seek equal treatment of workers regardless of nationality or any other ground. 122. Consequently, the facilitation of free cross-border movement of services and the promotion of the freedom of an employer or undertaking to provide services in the territory of other States – which constitute important and valuable economic freedoms within the framework of EU law – cannot be treated, from the point of view of the system of values, principles and fundamental rights embodied in the Charter, as having a greater a priori value than core labour rights, including the right to make use of collective action to demand further and better protection of the economic and social rights and interests of workers. In addition, any restrictions that are imposed on the enjoyment of this right should not prevent trade unions from engaging in collective action to improve the employment conditions, including wage levels, of workers irrespective of their nationality.” 74. In the case of Govia GTR Railway Ltd v. The Associated Society of Locomotive Engineers and Firemen (case no. 2016/450, [2016] EWCA Civ 1309, 12 December 2016) the Court of Appeal (Civil Division) of the United Kingdom considered an application for an interlocutory injunction brought by a railway against train drivers on the Southern Rail to prevent the train driver’s union from calling strike action, on the basis of Articles 49 and 56 TFEU. The Court of Appeal did not agree that either provision had been breached, and, having reviewed the Viking and Laval cases from the CJEU as well as the EFTA Court’s judgment in the Holship case, stated inter alia the following (paragraph 39): “In our judgment, it is absolutely plain for the reasons we have given that it is the object or purpose of the industrial action and not the damage caused by the action itself which renders it potentially subject to the freedom of movement provisions. A helpful test to apply is to ask whether, if the rules were laid down by government, they would be an unlawful interference with the freedom of establishment. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 75. The applicant unions complained that the decision to declare the notified boycott unlawful had violated their right to freedom of association as provided for in Article 11 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” Submissions by the parties and the third partyThe applicant unions The applicant unions The applicant unions 76. The applicant unions emphasised the importance of collective agreements for the formation of pay and working conditions in Norway. It had not previously been called into question by the domestic courts that the Framework Agreement and the priority rule in it was a condition that regulated pay and working conditions. The aim of the boycott in the instant case had been to protect rights at the very heart of trade union activity, namely the right to work and the right to stable and organised working conditions for dockworkers. Boycotts and blockades were protected by a number of instruments of international law, notably ILO Convention No. 87, the European Social Charter, and the EU Charter. 77. The applicant unions stated in their observations that the Government had referred to the issue of negative freedom of association in their observations without drawing the conclusion that it was of direct relevance. In the applicant unions’ view, it was irrelevant. They stated that the Norwegian Business Association ( Bedriftsforbundet ), of which Holship was a member, had lodged a complaint about alleged “closed-shop” practices in the dock sector with the European Committee on Social Rights, which in its decision of 17 May 2016 ( Bedriftsforbundet v. Norway, complaint no. 103/2013) had concluded that there had been no violation. The Supreme Court majority had made no mention of the issue, whereas the minority had commented on Holship’s claim and had found it unfounded. First and foremost, the instant case concerned the question of whether there had been an infringement of the right of collective bargaining and the right to enter into a collective agreement. 78. In the applicant unions’ view, the Supreme Court’s majority had erred in so far as it had balanced a right under the Convention against a right under the EEA Agreement in a manner that would only have been appropriate had the issue been a matter of conflicting rights under the Convention. The result had been that the right of collective action had had to be justified in the light of an economic freedom, the freedom of establishment, provided under the EEA. The majority had erroneously examined whether the applicant unions’ exercise of rights under Article 11 had been proportionate, whereas it should have examined whether the restriction placed on their right fulfilled the criteria set out in the second paragraph of Article 11. Finding the boycott unlawful in the circumstances of the present case had been disproportionate. The margin of appreciation to be afforded to the domestic authorities in the present case, a case which had related to a primary and important form of industrial action, had to be narrow. The Government 79. The Government submitted that EEA law provided for the protection of human rights which was similar to the protection provided for by the Convention, and that there was a presumption of compliance with the Convention which was the same as or similar to that set out in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI), a case concerning the implementation of EU law. That presumption had not been rebutted in the instant case, as there had been no “manifestly deficient” protection of Convention rights. 80. Furthermore, the Government maintained that the Court’s case-law left unresolved the question of whether a boycott such as the one at issue in the instant case was included in the panoply of rights protected under Article 11 of the Convention. In any event, the Government argued that if Article 11 were found to be applicable to the boycott in question, the Supreme Court’s judgment of 16 December 2016, in which the boycott had been declared unlawful, complied with the criteria set out in the second paragraph of that provision. The European Trade Union Confederation (ETUC) 81. The European Trade Union Confederation (ETUC) focused on the relevant legal framework and provided references to international case-law and other legal material from the United Nations, the ILO, the Council of Europe and the EU. From these, it inferred in particular that the right to collective bargaining and the right to collective action, including the right to strike, were recognised as fundamental rights that had to be guaranteed to all workers, including dock workers, and their trade unions. It furthermore submitted that any restriction on those rights had to be exclusively limited to certain conditions and situations, and that the Court, in interpreting the permissible restrictions in relation to Article 11 of the Convention, should take specific account of the competent international and European monitoring bodies mentioned above which had denied that even the need for the “principle of proportionality” was a permissible restriction on the right to strike. AdmissibilityApplicability of Article 11 of the Convention Applicability of Article 11 of the Convention Applicability of Article 11 of the Convention 82. As to whether the announced boycott entailed the exercise of freedom of assembly and association protected by Article 11 § 1 of the Convention, the Court notes that it has not previously rendered judgments relating to an action fully resembling the one at issue in the instant case. The collective action which was the subject of the domestic court judgments was essentially a boycott in the form of a blockade organised by NTF in order to pressure a company, Holship, to enter into a collective agreement containing a priority clause for registered dockworkers employed in the Administration Office. 83. The Court has generally held that Article 11 presents trade union freedom as one form or a special aspect of freedom of association. The provision does not guarantee trade unions, or their members, any particular treatment by the State (see, among other authorities, Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 134, ECHR 2013 (extracts)). The Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (see, for example, Demir and Baykara v. Turkey [GC], no. 34503/97, § 140, ECHR 2008). 84. The Court notes that in National Union of Rail, Maritime and Transport Workers v. the United Kingdom (no. 31045/10, § 76, 8 April 2014), as regards the applicability of Article 11 to a sympathy strike, it held that it would be inconsistent with the method of interpretation outlined in Demir and Baykara, cited above, § 85, for it to adopt in relation to that provision an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law (see in relation to the latter paragraphs 70-73 above). In addition, the Court notes that at issue in the case of Gustafsson v. Sweden (25 April 1996, Reports of Judgments and Decisions 1996 ‑ II) was collective action in the form of a blockade. In that case, which had been brought by the applicant business as a result of the extent of the inconvenience or damage caused by the union action to its business, the Court recognised that the measures complained of must have entailed considerable pressure on the applicant to meet the union’s demand that he be bound by a collective agreement. The Court accepted in that case that, to a degree, the enjoyment of the applicant business’ freedom of association was thereby affected and Article 11 was thus deemed applicable. The Court considers that given that a blockade can lead to Article 11 being deemed applicable in relation to the negative freedom of association of an applicant business or employer, it follows that the exercise of a blockade by an applicant trade union can also give rise to the applicability of Article 11 of the Convention. The Court observes that a boycott may be the only means available to a trade union to put pressure on an employer in defense of workers’ rights 85. The Court observes moreover that in one of the CJEU judgments to which the domestic court referred, the CJEU had recognised, for the first time, relying in part on the European Social Charter, that the right to collective action constituted a fundamental right under EU law. It is noteworthy that the form of collective action at issue in that case – Laval un Partneri – was also a blockade. 86. With regard to the proposed action in the instant case, the Court observes that its purpose was to pressure Holship to enter into a collective agreement with NTF under which registered dockworkers employed by the Administration Office would enjoy the right to priority of engagement for unloading and loading operations at the port. Leaving aside for the time being the question of whether – as the majority of the Supreme Court considered – the action pursued business aims beyond the protection of the rights and interests of workers (see paragraph 38 above) – a question which will be of relevance on the merits – it is undisputed that the impugned boycott also aimed to ensure stable and safe working conditions for dockworkers. This was recognised by both majority and minority members of the Supreme Court and by the lower courts. Furthermore, the Court observes that the priority right which was one of the rights the proposed boycott sought to defend, was based on a long-standing tradition domestically, and was provided for in ILO Convention No. 137 (see paragraph 70 above). 87. In the light of the above considerations, the Court finds that the impugned boycott which the applicant unions notified in advance in accordance with domestic law constituted a trade union action which they sought to take in order to protect, at least inter alia, the occupational interests of union members in a manner capable of falling within the scope of Article 11 § 1 of the Convention. It follows that this provision is applicable. Conclusion on admissibility 88. The Court, having found that Article 11 of the Convention is applicable, further notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35. It must therefore be declared admissible. MeritsInterference with the applicants’ rights under Article 11 of the Convention Interference with the applicants’ rights under Article 11 of the Convention Interference with the applicants’ rights under Article 11 of the Convention 89. It is not contested that the Supreme Court’s declaratory judgment finding the intended boycott unlawful entailed a “restriction” on the exercise of the trade unions’ rights under the second paragraph of Article 11 of the Convention. Lawfulness and legitimacy of the restriction 90. Turning to the requirement that the restriction be prescribed by law, the Court finds that the Supreme Court’s judgment had an adequate legal basis – the 1947 Boycott Act (see paragraph 60 above). 91. The Court also finds that the decision to declare the boycott unlawful was made in order to protect the “rights and freedoms” of others, in particular the company’s right to freedom of establishment as guaranteed by the EEA Agreement and incorporated in Norwegian law by the EEA Act (see paragraphs 61 and 66 above). Whether the restriction was necessary in a democratic society (a) General principles 92. The Court reiterates that the essential object of Article 11 of the Convention is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected by that provision, but that there may in addition be positive obligations on the State to secure the effective enjoyment of such rights (see, for example, Sindicatul “Păstorul cel Bun”, cited above, § 131, and Demir and Baykara, cited above, § 110). 93. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. The right to collective bargaining has not been interpreted as including a “right” to a collective agreement, nor does the right to strike imply a right to prevail ( National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, judgment of 8 April 2014, § 85). What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see, for example, Demir and Baykara, cited above, § 141, and the references therein). 94. Furthermore, the Court has stated that the evolution of case-law on the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned to secure trade union freedom, subject to its margin of appreciation; and secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, while in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law (ibid., § 144). 95. Moreover, through its case-law, the Court has built up a non-exhaustive list of the constituent elements of the right to organise, including the right to form and join a trade union, the prohibition of closed-shop agreements, the right for a trade union to seek to persuade the employer to hear what it had to say on behalf of its members and, having regard to developments in labour relations, the right to bargain collectively with the employer which has, in principle, except in very specific cases, also become one of the essential elements of the first right listed above (see Sindicatul “Păstorul cel Bun”, cited above, § 135; and Demir and Baykara, cited above, § 145). In Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 46, ECHR 2002 ‑ V, the Court stated: “[T]he essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on issues which the union believes are important for its members’ interests”. 96. The Court has stated that the list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In that connection, it is appropriate to remember that the Convention is a living instrument which has to be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights have to be construed restrictively, in a manner which gave practical and effective protection to human rights ( Demir and Baykara, cited above, § 146). 97. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom and protection of the occupational interests of union members may be secured (see, among other authorities, Sindicatul “Păstorul cel Bun”, cited above, § 133). 98. In cases relating to industrial actions, the Court has also stressed that its jurisdiction is limited to the Convention. It has no competence to assess a respondent State’s compliance with the relevant standards of the ILO or the European Social Charter, the latter containing a more specific and exacting norm regarding industrial action. In National Union of Rail, Maritime and Transport Workers v. the United Kingdom (no. 31045/10, § 106, ECHR 2014), the Court emphasised, however, that the conclusion which it had reached in that case, in which it found that a ban on taking secondary industrial action against an employer not party to a labour dispute did not violate Article 11, should not be understood as calling into question the analysis effected on the basis of those standards and their purposes by the ILO Committee of Experts and the European Committee on Social Rights. The Court has also emphasised that, under the terms of Article 19 and Article 32 § 1 of the Convention, it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law or, in a case such as this, EEA law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see, in relation to Article 8 of the Convention, Jeunesse v. the Netherlands [GC], no. 12738/10, § 110, 3 October 2014). (b) Application of those principles to the present case 99. The Court considers that two issues relating to negative freedom of association and the possible existence and application of the presumption of equivalent protection need to be addressed as preliminary issues. 100. In the present case the Supreme Court declared the announced boycott unlawful as it would have amounted to an unlawful/disproportionate restriction of Holship’s right to freedom of establishment as guaranteed by the EEA Agreement (see, inter alia, paragraph 51 above). 101. It appears that Holship, before the domestic courts, also argued that the boycott would be unlawful because it would contravene the right to “negative freedom of association” enshrined in the first paragraph of Article 11 of the Convention (see, for example, paragraphs 20 and 58 above). This argument was dismissed by the Borgarting High Court on the grounds that it had not been proved that the Administration Office was in fact a “closed shop” for NTF members (see paragraph 20 above), and the Supreme Court’s majority did not discuss it. The minority, which had to take a stand on Holship’s argument relating to negative freedom of association, since it concluded that Holship’s arguments relating to the EEA Agreement could not succeed, only referred to the Borgarting High Court’s reasons on that point (see paragraph 58 above). 102. In the light of the above, the parties disagree on whether questions relating to “negative freedom of association” have relevance to the case now before the Court. 103. The Court notes that had it been established by the domestic courts that the announced boycott would impinge on the negative freedom of association because of the issue of a “closed shop”, the case would have required a balancing of competing rights protected by the first paragraph of Article 11 of the Convention (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 113, ECHR 1999 ‑ III; and, with regard to the term “closed shop”, Young, James and Webster v. the United Kingdom, 13 August 1981, § 13, Series A no. 44). However, that was not established, and the judgment of the Supreme Court indicated only that the announced boycott would interfere with Holship’s right to freedom of establishment under the EEA Agreement, and that that was why it declared it unlawful (see, inter alia, paragraph 51 above). That being the case, and also noting that no submissions have been made to the effect that the domestic legislation in general did not offer adequate protection of the negative freedom of association, the Court finds that its examination in the instant case must focus on the necessity of the restriction under the second paragraph of Article 11. 104. As regards the second preliminary issue, the Court reiterates that it has held that if an organisation to which a Contracting State has transferred jurisdiction is considered to protect fundamental rights in a manner which can be considered at least “equivalent” to that for which the Convention provides, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §§ 152-153, ECHR 2005 ‑ VI, §§ 155-56 and Konkurrenten.no AS v. Norway (dec.), no. 47341/15, § 42, 5 November 2019). 105. In the present case, the respondent Government argued that while EU law and EEA law differ in certain respects, and even if it were decided that this difference means that EEA law, as such, does not benefit from the so-called Bosphorus presumption of equivalent protection, the present case concerns the application of the main part of the EEA agreement, which corresponds with EU law, and to which the presumption should therefore apply. 106. In the aforementioned Konkurrenten.no decision, cited above, the Court recently stated that the basis for the presumption established by Bosphorus is in principle lacking when it comes to the implementation of EEA law at domestic level within the framework of the EEA Agreement, due to the specificities of the governing treaties compared to those of the European Union. For the purpose of the analysis in that decision, two distinct features were specifically highlighted. Firstly, and in contrast to EU law, there is within the framework of the EEA Agreement itself no direct effect and no supremacy. Secondly, and although the EFTA Court has expressed the view that the provisions of the EEA Agreement “are to be interpreted in the light of fundamental rights” in order to enhance coherency between EEA law and EU law (see, inter alia, the EFTA Court’s judgment in its case E-28/15 Yankuba Jabbi [2016] para. 81), the EEA Agreement does not include the EU Charter of Fundamental Rights, or any reference whatsoever to other legal instruments having the same effect, such as the Convention. 107. As regards, in particular, the latter feature, the Court observes, however, as clearly stated by the EFTA court in the Holship case, that fundamental rights form part of the unwritten principles of EEA law (see paragraph 26 above). The respondent Government provided several examples from the EFTA court in this regard. Since this reflects the position which previously pertained under EU law, prior to successive EU Treaty amendments, according to which fundamental rights were first recognised as general principles of EU law, the Court considers that the fact that the EEA agreement does not include the EU Charter is not determinative of the question whether the Bosphorus presumption could apply when it comes to the implementation of EEA law, or certain parts thereof. 108. However, given one of the other features of EEA law identified by the Court in the Konkurrenten. no decision – the absence of supremacy and direct effect, added to which is the absence of the binding legal effect of advisory opinions from the EFTA Court – and given that the existence of procedural mechanisms for ensuring the protection of substantive fundamental rights guarantees is one of the two conditions for the application of the Bosphorus presumption, the Court leaves it to another case, where questions in relation to the procedural mechanisms under EEA law may arise, to review this issue. It therefore proceeds on the basis that for the purposes of this case the Bosphorus presumption does not apply to EEA law. The Court is therefore required to determine whether the restriction was necessary for the purposes of Article 11 of the Convention. 109. Having addressed those two preliminary issues, the Court turns to the heart of the present case, namely the assessment of the necessity of the restriction of the applicant trade union’s Article 11 rights as a result of the Supreme Court decision to declare the announced boycott unlawful. In this context the Court observes that the particularity of the fundamental right to engage in collective action is that it too may be exercised with a view to protecting the rights of others, namely the interests of workers and the prevention of, inter alia, social dumping. However, in this case the Court emphasises that a majority of the Supreme Court found that the Framework Agreement and its system involving priority for registered dockworkers had little to do with the protection of workers. It held that the collective agreement demanded by NTF was “irregular”, and that the protection it afforded to members’ interests in working and pay conditions was “relatively indirect” (see paragraph 36 above). As regards the Administration Office, the Supreme Court regarded it as a “company” that engaged in “business activities in a market” – the market of unloading and loading activities – to which other operators wanted access, and as regards the announced boycott, it stated that its “primary effect” would be to deny Holship access to that market, which it wished to enter (see paragraphs 37 ‑ 38 above). 110. While it is true that the Supreme Court was heavily divided in relation to these findings of fact and law, the Court emphasises that it is in the first place for the domestic authorities to interpret and apply the domestic law and to establish the facts on the basis of the evidence before them (see, in relation to the right to strike under domestic law and Article 11 of the Convention, Hrvatski liječnički sindikat v. Croatia, no. 36701/09, § 56, 27 November 2014; and, in another context of Article 11, for example, Jhangiryan v. Armenia, nos. 44841/08 and 63701/09, § 114, 8 October 2020). 111. As regards the balancing exercise undertaken by the Supreme Court in the present case, the latter first pointed to the freedom of association established by the first paragraph of Article 101 of the Constitution, which had to be considered taking into account Article 11 of the Convention, before also pointing to the freedom of establishment under Article 31 of the EEA Agreement, which it referred to as a “fundamental freedom” thereunder. According to the Supreme Court: “these rights must be weighed against each other as part of a consideration of proportionality. This weighing of interests is similar in nature to the one carried out when restrictions are imposed on the freedom of establishment as a result of basic rights forming part of EU and EEA law. ... While the wording of the conditions for restricting human rights and rights under the EEA Agreement may differ, the nature of the considerations remain the same”. Referring to the possibility of different interpretations of the Constitution, and by the EFTA court and CJEU in this field, the reporting judge indicated that: “one cannot rule out that considerations of the European Court of Human Rights in weighing the freedom of assembly against the freedom of movement within the internal market may come to differ from those of the European Court of Justice and the EFTA Court. I cannot see, however, that there are any grounds on which to argue that such differences exist today”. 112. As is clear from paragraphs 30 to 51 above, the Supreme Court engaged in an extensive assessment of the conflicting fundamental right to collective action relied on by the applicant unions and the fundamental economic freedom under EEA law on which the employer relied. It indicated that the boycott must, among other things, be reconciled with the rights that follow from the EEA Agreement and that in consideration of proportionality a fair balance had to be struck between these rights. 113. It is clear from the balance struck by the domestic court that its characterisation of the boycott – that it was being used as a means to compel acceptance of a right of priority engagement and notably with the desired effect being to limit the access of other operators to the market for loading and unloading services – was central to its finding that such a fair balance had, in the particular circumstances of that case, been struck. In addition, it appeared relevant in the present case that the announced boycott targeted a third party. 114. As indicated previously (see paragraph 97), the Contracting States enjoy a wide margin of appreciation in this field, in view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field (see, also, Unite the Union v. the United Kingdom (dec.), no. 65397/13, § 55, 3 May 2016). As regards the breadth of the margin, it is useful to remember that it will depend on the nature and extent of the restriction on the trade-union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right (see Demir and Baykara, cited above, § 86). Given the characteristics of the collective action identified by the Supreme Court (see the preceding paragraph and paragraphs 36-38 above), the breadth of the margin in the present case was clearly wide. 115. The Court also reiterates that, when exercising its supervisory function, its task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on. Where the balancing exercise has been undertaken by the national authorities in conformity in essence with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, among many authorities, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 164, 27 June 2017). In this case, it is clear from the information available to the Court that following the Supreme Court judgment the relevant social partners negotiated and concluded a new collective agreement (see paragraph 63 above). The restriction of the application unions’ Article 11 rights did not as such prevent them from engaging in further collective bargaining, the information provided by the applicant unions to the effect that the absence in the renegotiated agreement of a similar priority clause had considerable impact on the organisation of dock work notwithstanding. Against that background, the Court does not consider that sufficiently “strong reasons” exist for it to substitute its views for that of the Supreme Court in this case. 116. Even though the Court considers, on the basis of the material before it and given the findings of fact and domestic law by the domestic court, that the latter acted within the margin of appreciation afforded to it in this area when declaring the boycott unlawful (see paragraphs 94 and 97 above), it considers it necessary, given the manner in which the domestic court expressed the balancing exercise to be effected, to note the following. 117. Firstly, the Court accepts that protecting the rights of others granted to them by way of EEA law may justify restrictions on rights under Article 11 of the Convention (see paragraph 91 above). However, it also notes that for a collective action to achieve its aim, it may have to interfere with internal market freedoms such as those at issue in the case before the Supreme Court. As noted by the Borgarting High Court in the present case, creating difficulties for the company in respect of loading and unloading, and the possible negative financial consequences flowing therefrom, would have been an important point of the boycott (see paragraph 22 above). In the same way that a right to strike does not imply a right to prevail, the degree to which a collective action risks having economic consequences cannot, therefore, in and of itself be a decisive consideration in the analysis of proportionality under Article 11, paragraph 2 of the Convention (see Ognevenko v. Russia, no. 44873/09, § 73, 20 November 2018). Even when implementing their obligations under EU or EEA law, the Court observes that Contracting Parties should ensure that restrictions imposed on Article 11 rights do not affect the essential elements of trade union freedom, without which that freedom would become devoid of substance. 118. Secondly, as follows from paragraphs 98 and 110 above, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU or EEA law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention. As highlighted in the submissions of the applicant unions in the present case, however, there is a risk that a domestic court which finds itself in a position such as that in which the Supreme Court found itself in the present case may balance a right under the Convention against a right under the EEA Agreement in a manner that would generally only be appropriate had the issue before it been a matter of conflicting fundamental rights under the Convention. From the perspective of Article 11 of the Convention, EEA freedom of establishment is not a counterbalancing fundamental right to freedom of association but rather one element, albeit an important one, to be taken into consideration in the assessment of proportionality under Article 11, paragraph 2. The risk just referred to is one which, while ensuring full compliance with their obligations under EEA or EU law, domestic courts must seek to avoid. 119. However, in the present case, as stated in paragraph 113 above, central to the domestic court’s finding was its characterisation of the purpose and nature of the announced boycott. While the Supreme Court did not approach the case before it strictly from the angle of the proportionality of the restriction imposed on the trade unions’ exercise of rights under Article 11 of the Convention, but concentrated to a great extent on the effects of the boycott on the freedom of establishment of the company targeted, the Court considers that it nonetheless remained within its wide margin of appreciation and advanced relevant and sufficient grounds to justify its final conclusion in the particular circumstances of this case. 120. On the basis of the above considerations, the Court finds that there has been no violation of Article 11 of the Convention.
The Court held that there had been no violation of Article 11 of the Convention, finding that, in the particular circumstances of this case, the Norwegian Supreme Court had advanced relevant and sufficient grounds to justify its final conclusion. With regard, in particular, to the purpose of the proposed action, the Court noted that the impugned boycott had aimed inter alia to ensure stable and safe working conditions for dockworkers. Furthermore, the priority right, which was one of the rights the proposed boycott had sought to defend, was based on a long-standing tradition domestically, and provided for in international law. In the light of the above, the impugned boycott, which the applicant unions had notified in advance in accordance with domestic law, was capable of falling within the scope of Article 11 of the Convention. On the merits, the Court further observed, in particular, that the Supreme Court’s judgment finding the intended boycott unlawful had entailed a “restriction” on the exercise of the trade unions’ rights which was prescribed by law and aimed to protect the “rights and freedoms” of others, in particular Holship’s right to freedom of establishment as guaranteed by the EEA Agreement.