On 10 June 2021 the European Court of Human Rights (ECtHR) ruled in the so-called 'Holship' case. LO (the Norwegian Confederation of Trade Unions) and NTF (the Norwegian Transport Workers' Union) had made a complaint against Norway because they believed that the Supreme Court had violated the freedom of association under Article 11 of the European Convention on Human Rights (ECHR) when it declared a notified boycott to be illegal. The ECtHR acquitted Norway but recognised that boycotts as a tool in labour conflicts may be protected by the ECHR and that restrictions on the right to boycott require a proper balancing of interests.
In 2013 NTF submitted a request for a collective agreement to Holship Norge AS, which, among other things, operated in the port of Drammen. When Holship did not respond to the demand, NTF announced a boycott. The boycott was to prevent Holship's employees from unloading and loading ships, which Holship was to send or receive, in the port of Drammen. The purpose was to force Holship to sign the collective agreement.
The collective agreement would give employees of the Administration Office for Port Work in the Port of Drammen preferential rights to unload and load ships in the port. Historically, the agreement related to the fact that the port workers were freelancers without security for work and wages. To remedy this, a fixed wage system was established for the unloading and loading workers.
The system was organised so that the workers were employed by the administration office, which sold unloading and loading services to port users. The administration office was headed by a board which comprised representatives of both the port users and the port workers and did not provide financial benefits.
By signing the collective agreement, Holship would be obliged to purchase unloading and loading services from the administration office and would no longer be able to use its own employees for this work.
NTF brought the case before the Supreme Court to establish that the announced boycott was legal. Both the district court and the court of appeal had concluded that the boycott was legal. However, the Supreme Court reached the opposite conclusion due to the fact that the boycott placed too great a restriction on Holship's right to free establishment within the European Economic Area.
The majority of the Supreme Court (10 judges) did not decide whether a boycott that is not part of a strike is protected by Article 101 of the Constitution and Article 11 of the ECHR. However, the court pointed out that the effect of the announced boycott was to limit access to the market for unloading and loading services in the port. It therefore considered that the boycott would significantly interfere with the right of establishment that follows from the EEA rules.
The Supreme Court also pointed out that the boycott would negatively affect Holship's own employees, and that these workplaces had no less protection than those of the administration office. The Supreme Court therefore concluded that the notified boycott was not a proportionate interference with the right of establishment and was thus illegal.
The minority in the Supreme Court (seven judges) concluded that the boycott was not in breach of the EEA rules. They therefore did not need to take a position on the protection pursuant to Section 101 of the Constitution and Article 11 of the ECHR.
Article 11 of the ECHR provides for the right to freedom of association, including the right to form and join trade unions. The provision has been interpreted to also give trade unions the right to use tools such as strikes as a means of putting pressure on employers. However, it does not provide for a right to achieve one's demands or a right to a collective agreement.
It has previously been unclear whether the right to freedom of assembly and association under Article 11 of the ECHR also includes a right to boycott. In its judgment, the ECtHR stated that a boycott under the auspices of a trade union may be protected by Article 11 of the ECHR. The ECtHR pointed out that a boycott may be the only way for a union to exert pressure on an employer to defend its members' interests. The ECtHR also assumed that the boycott announced by NTF was intended to safeguard the interests of the port workers by ensuring stable and safe working conditions for them.
However, the right to boycott is not unconditional, and the ECtHR has made it clear that member states have a wide margin of discretion as to what restrictions can be placed on this right. This is because balancing the interests of employers and employees is difficult and because there are major differences between European countries when it comes to the rules for labour conflicts.
In its judgment, the ECtHR accepted that rights that follow from EEA law, including the freedom of establishment, may justify interference with the freedom of association. At the same time, the ECtHR indicated that freedom of establishment is not an equal right, but rather a factor in assessing whether interference with the freedom of association is proportionate.
The ECtHR also emphasised that financial interests cannot in themselves be decisive in the assessment of proportionality, and that the assessment must be made in a way that ensures that freedom of association does not become superficial.
