Would limiting the right to strike during school holidays as desired by the Senate be consistent with the Constitution ?

The Senate wants to limit the right to strike in transport during certain periods. Illustration MAXPPP – Alexis Sciard

Regulate the right to strike by limiting it during certain peak periods such as school holidays? The bill examined in the Senate on April 9 is the subject of debate. The government is opposed to it. While the right to strike is enshrined in the Constitution, we asked a lawyer if it was possible to tackle it.

This Tuesday, April 9, a bill is being examined in the Senate to limit strikes in transport during certain periods, notably school holidays.

The text, submitted last February, in full mobilization of SNCF controllers, intends "to protect the French" faced with "excessive and repeated hostage-taking" of users during busy periods.

What does the Constitution say about the right to strike ?

This proposal sparked an outcry and the government also expressed its opposition. On April 5, the Minister Delegate in charge of Transport spoke about the Constitution. "There is a problem of constitutionality with this bill, the right to strike is still a constitutional right, he said on the microphone of Sud Radio.

Une proposition de loi au Sénat pour encadrer le droit de grève dans les transports : "Le gouvernement est opposé à ce texte" affirme @P_Vergriete pic.twitter.com/HGDa78abaz

— Sud Radio (@SudRadio) April 5, 2024

Indeed, in France, the right to strike is a right with constitutional value. It appears in the seventh paragraph of the Preamble to the Constitution of 1946, which stipulates that "The right to strike is exercised within the framework of the laws which regulate".

It is in this provision that all the subtlety of the debate on the constitutionality of a modification of the right to strike lies. With this precision, the constituents "have empowered the legislator to trace these by carrying out the necessary conciliation between the defense of professional interests, of which the strike is a means, and the safeguarding of the ;rsquo;general interest, to which the strike may be likely to harm", reminds us Maître Eric de Rocheblave, a Montpellier lawyer specializing in labor law.

The framework for the right to strike has already been modified

Moreover, the legislator has already regulated the right to strike in the transport sector not so long ago.

As our labor law lawyer points out, in 2007, a law required negotiations to take place before strikesin the land transport sector in order to "guarantee to users, in the absence of a minimum service, a certain predictability as to the service provided" . The Constitutional Council validated the framework. It did the same with air transport in 2012.

Continuity of public service

In fact, the constitutional council must assess the balance between two guarantees of the Constitution,the right to strike so and the continuity of public service.

"To ensure not only the continuity of public service but also good order and the safety of people and, consequently, the objective of constitutional value to preserve public order, the legislator can regulate the right to strike", summarizes the lawyer.

It remains to be seen whether the bill carried by centrist senator Hervé Marseille would fall within this framework, given his desire to deprive the right to strike for a certain number of days the "personnel of public transport services", in the name of the continuity of public service.

For the moment, the text, to which the left is also very opposed, has yet to pass the Parliament stage.