Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2475 (France) - Complaint date: 09-MAR-06 - Closed

Allegations: The complainant organization alleges that Decree No. 2004-836 amending civil procedure, which amends the Labour Code, makes representation by a lawyer compulsory in appeals at the highest level on points of law, thereby depriving it of the right to represent its members and infringing the right of workers’ organizations to organize freely their administration and activities

964. The complaint is set out in a communication by the Trade Union of Qualified Teachers of Higher Education (holders of the “agrégation”) (SAGES) dated 9 March 2006. The complainant sent additional information in a communication dated 10 April 2007.

1. 965. The Government of France sent its reply in communications dated 24 May 2006 and 14 March 2007.
2. 966. The Government of France has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 967. The SAGES is an occupational trade union which was established on 13 January 1996 in Marseilles (France). The statutes currently in force were adopted on 23 May 2003. Since its establishment, the SAGES has constantly fulfilled the role of being a representative trade union eligible to stand for trade union elections. Among its other characteristics, the SAGES uses legal recourse as a priority course of action to uphold both collective and individual interests and it has engaged in a considerable number of legal actions, which it has taken either on its own behalf or on behalf of specific workers.
2. 968. The SAGES notes that labour disputes in the private sector are referred in the first instance to the labour courts, at the appeal stage to the social chamber of the Court of Appeal and at the highest level to the social chamber of the Court of Cassation, which is the highest court of appeal. According to section R.516-5 of the Labour Code, “[t]he persons entitled to assist or represent parties in labour matters include: ... permanent or non-permanent representatives of trade unions or employers’ associations ...”. According to the same section, “[t]he employer may also be assisted or represented by a member of the enterprise or institution”. The rules applicable to assistance and representation are the same at the appeal stage and in courts of first instance. With regard to the highest level of appeal, section R.517-10 of the Labour Code provided, until the entry into force of the contested Decree, that “[in] labour matters, appeals at the highest level shall be lodged, considered and judged in accordance with procedure and without representation by a lawyer in the Council of State (Conseil d’Etat) and the Court of Cassation”. Decree No. 2004-836 of 20 August 2004 amending civil procedure repeals section R.517-10 of the Labour Code. The SAGES underscores that, before section R.517-10 was repealed, workers could be assisted and represented by trade union representatives. Moreover, as an employer, the complainant trade union was exempt from compulsory representation by a lawyer at the highest level. The complainant trade union was therefore in a position to assist and represent in the labour courts not only its own members, but any worker requesting its intervention, whether in courts of first instance, at the appeal stage or at the highest level, as French constitutional law provides that “all persons may defend their rights or interests through trade union action”. By repealing section R.517-10 of the Labour Code, the executive power has made it impossible for workers to be assisted and represented at the highest level by trade unions and impossible for trade unions to defend their own interests as employers or to assist and represent workers at the highest level.
3. 969. In labour disputes involving government-employed civil servants, the SAGES states that it is not the judicial authorities which are competent, but rather the administrative authorities (administrative courts in the first instance, administrative courts of appeal at the appeal stage and the Council of State at the highest level). In these administrative courts, unlike in the labour courts, there is no provision for representation or assistance by a trade union representative; while this does not preclude trade union assistance in courts of first instance and at the appeal stage, in so far as civil servants are exempt from compulsory representation by a lawyer and the proceedings are in writing, the difference is significant at the highest level, where representation by a lawyer is compulsory in administrative matters but not (prior to the publication of the disputed Decree) in judicial matters. At the time the disputed Decree was introduced, the SAGES was planning to take action aimed at bringing the system of administrative appeals into line with that of labour appeals, notably on the basis of Article 26 of the International Covenant on Civil and Political Rights. The reform of the system of labour-related appeals at the highest level has, therefore, also had the effect of depriving the complainant trade union of the possibility of obtaining exemption from compulsory representation by a lawyer at the highest level in cases between civil servants and their employer, State, local government or public institution.
4. 970. The complainant trade union lodged an appeal to set aside the Decree repealing the exemption from compulsory representation by a lawyer in labour matters (see document attached to the complaint). The French Council of State was competent at the first and last instances to give a ruling on the appeal. The appeal by the SAGES set out numerous points of fact and law, both on the merits of the case and the admissibility of its action, as do the written replies (attached to the complaint). In addition, Mr Denis Roynard, the president of the SAGES, lodged an appeal in his own name to set aside the Decree, containing the same arguments. The case was still pending at the Council of State at the time of the complaint.
5. 971. In its ruling of 18 May 2005, the Council of State dismissed the appeal by the SAGES because “the disputed provision in itself in no way undermines the rights of the officials concerned under their statutes, the prerogatives of the bodies to which they belong or the conditions in which they exercise their duties”, “and consequently, the Minister for Justice has good cause to maintain that the claimant is not affected and is therefore not entitled to request that the contested regulatory provision be set aside”, and “the application is therefore not receivable and must be rejected” (see attachment). The SAGES considers that the Government’s legislation constitutes a violation of freedom of association. The SAGES cites in particular Articles 3, 8(2) and 11 of Convention No. 87, certain provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In its communication dated 10 April, the SAGES informs that the General Confederation of Labour (CGI) referred the issue to the Council of State with the same object but the appeal was dismissed.
6. 972. In its appeal to the Council of State, the SAGES aimed to: (1) uphold the right of qualified teachers (holders of the “agrégation”) to be assisted and represented, if necessary, by a trade union representative from the SAGES or elsewhere in labour matters before the Court of Cassation, given that the freedom of the teachers in question to choose freely a trade union to defend them in court is at stake; (2) uphold its right to assist and represent workers in labour matters in the Court of Cassation, irrespective of whether they are holders of the “agrégation” or not, given that the freedom of the trade union to choose its own subject and form of intervention is at stake; (3) obtain recognition of its status as a prospective employer and consequently its freedom to employ its own workers, given that the trade union’s freedom of association is at stake. Freedom of association has therefore been violated by the respondent State mainly in these three areas. An additional area is the discrimination suffered by the complainant trade union in the treatment of freedom of association. These issues are discussed further below.
7. 973. The SAGES alleges an infringement of the freedom of association of qualified teachers of higher education (holders of the “agrégation”) who are employed by private teaching establishments or who are at the disposal of or seconded to private establishments but who still belong to the body of qualified teachers in question. Teachers in this category belonging to the SAGES – or who wish to join it or call upon its services to defend their rights before the labour courts against the private establishment for which they work or used to work – are deterred from joining the SAGES by the Council of State ruling of 18 May 2005. This ruling prevents the SAGES both de facto and de jure from helping or representing them in labour matters, not only at the highest level but also in courts of first instance and at the appeal stage, as its general wording does not limit the scope of the SAGES only at the highest level of appeal; indeed, as established by the Council of State, an employer in a dispute with a worker who is being assisted and defended by a representative of the SAGES might raise an objection in the court of first instance and at the appeal stage. The Council of State ruling of 18 May 2005 thus deprives qualified teachers (holding an “agrégation”) employed in private establishments (for example, under partnership agreements with the State), as well as those who are at the disposal of or seconded to independent employers, of the possibility of calling on the SAGES to assist and represent them in cases against such independent employers. It also makes it impossible for them to claim back any costs arising from consultations with trade unions relating to legal action to defend their interests. National case law, however, indicates explicitly and unambiguously that teachers who are placed in the situations outlined above can apply to labour courts and then to the Court of Cassation to defend their rights.
8. 974. According to the SAGES, Article 1 of Convention No. 98 applies to the present case. It provides that the “protection” of “workers” against “acts of anti-union discrimination in respect of their employment” “shall apply more particularly in respect of acts calculated to” “[...] prejudice a worker by reason of union membership”. Moreover, the SAGES highlights that the European Convention on Human Rights is incorporated into domestic legislation and that restrictions on the freedom of workers to join the SAGES or on the effectiveness and efficiency of this freedom are neither “prescribed by law” nor “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” (Article 11, paragraph 2, of the Convention).
9. 975. The SAGES alleges that the impact of the Council of State ruling extends far beyond the Court of Cassation itself, as the basis for its interpretation applies also to cases brought before the labour courts and the social chambers of the courts of appeal. The freedom of workers to call on the SAGES and the freedom of the SAGES to assist and represent workers in the labour courts are limited by the Council of State ruling to an extent far greater than that provided for in the disputed Decree; this is on account of the authority inherent in Council of State rulings – in particular (but not uniquely) in the labour courts (first instance), which are staffed by non-professional judges who are unfamiliar with the subtleties associated with the relative and absolute effects of rulings which have the force of res judicata.
10. 976. The SAGES states, moreover, that the freedoms and rights which it has cited include the freedom of the complainant organization to act as an employer and to have its status as such taken into account by national courts.
11. 977. The SAGES considers that its right to be heard in cases relating to the freedom of association has been violated. There is no doubt that, unless it is to be drained of all but symbolic substance, the freedom of trade unions to organize their own administration and activities and to formulate their own programmes can only be achieved if the organizations chosen by workers to represent them have their own legal means to take collective action, within a democratic State, to guarantee the protection of that freedom – which should, of course, include as a priority the means to take legal action. In view of their commitment to uphold that freedom, both through their legislation and the manner in which they implement it, States should aim to achieve more than a purely formal recognition of that freedom; they also need to consider the approach – which should first and foremost be legislative – used to guarantee that freedom. This is reflected in particular in the provisions of the International Covenant on Civil and Political Rights which, like the European Convention on Human Rights, “is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (European Court of Human Rights, 9 October 1979, Airey v. Ireland, paragraph 24). The United Nations Human Rights Committee has established that “the fact that the competence of the Committee to receive and consider communications is restricted to those submitted by or on behalf of individuals (article 1 of the Optional Protocol) does not prevent such individuals from claiming that actions or omissions that concern legal persons and similar entities amount to a violation of their own rights” (General Comment No. 31 (paragraph 6) on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant: 21 April 2004, CCPR/C/74/CRP.4/Rev.6). The SAGES considers that the actions or omissions of the respondent State which are hereby being challenged, and not only those which affect it as a trade union but also those which affect the rights and interests of its members which are at the disposal of private educational establishments, including those which threaten the rights set out in Article 2 (right to effective recourse) and Article 14 (right to fair trial) of the Covenant, are receivable and sufficiently well-founded to be brought before the ILO.
12. 978. The SAGES also cites the discriminatory nature of the violations that have been and continue to be suffered by the complainant trade union. Article 26 of the International Covenant on Civil and Political Rights provides that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination”. In accordance with the case law of the Human Rights Committee, the term “law” in this context should be understood not in the constitutional sense, but in the material sense.
13. 979. In the case in point, it is clear to the SAGES: (1) that natural or legal persons who are eligible to bring legal action are competent to submit for review by a national administrative court on the basis of their merits any decrees amending the rules of procedure which affect the implementation of those legal actions (Council of State, 17 December 2003, Meyet et al., attached to the complaint); (2) that French trade unions are entitled to assist and represent in court any workers employed in the private sector who call on them and that national legislation does not make any distinction between trade unions with regard to this entitlement; (3) that it is therefore the Council of State which, by its ruling of 18 May 2005, introduced distinctions and restrictions which are to the detriment of the complainant trade union and that the statutes of the complainant trade union could not form the basis of its ruling, much less the only basis of the ruling, which is regrettably what nevertheless happened. The Council of State ruling of 18 May 2005 therefore constitutes illegal discriminatory treatment which is to the detriment of the complainant trade union and places a restriction on the rights set forth in the abovementioned standards of the ILO, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights, as it does not meet the requirements of Article 22(2) of the International Covenant on Civil and Political Rights and Article 11(2) of the European Convention on Human Rights. These restrictions not only fail to comply with the abovementioned requirements but also affect the SAGES exclusively and in a disproportionate way, since it was this union’s freedom of association and that of its teachers – which it has always undertaken to represent and defend – that was restricted by the ruling of 18 May 2005. They are thus discriminatory in nature, as may be seen by comparing this ruling with the abovementioned ruling on Meyet et al.
14. 980. The SAGES was directly concerned by the issue brought before the highest legal authority and is directly concerned by the review and the recommendations by the ILO relating to the present case, because: (1) some of its members are likely to lodge labour-related appeals at the highest level, as described above; (2) its ability to employ its own workers is dependent in particular on its ability to defend itself at the highest level of appeal, given how expensive it is to engage a lawyer in the Council of State and the Court of Cassation (minimum 3,000 euros); (3) the outcome of the consideration of the case by the national court was a decisive factor in being able to take action to obtain an exemption from compulsory legal representation in labour disputes involving civil servants at the highest level of appeal in the Council of State.
15. 981. The complainant trade union requests the competent bodies of the ILO to determine that there was indeed a violation of freedom of association by the respondent State as a result of the ruling by the national court, for the reasons set out above. The complainant trade union also requests that it be compensated for the abovementioned violations. This should initially involve specific and non-equivocal recognition by the respondent State of the right of the SAGES to assist and represent workers in the labour courts, in the court of the first instance and at the level of appeal. This recognition requires new or amended legislation or regulations to prevent the Council of State from declaring again that the appeal of the SAGES is inadmissible, on the grounds that it has already been set aside. With regard to the issue of assistance and representation in labour matters at the highest level of appeal, it would be useful if, first, the Council of State could examine the merits of the appeal lodged by Mr Denis Roynard, taking into consideration the requests and recommendations put forward by the ILO; and second, if the Council of State were to declare this other appeal inadmissible, the national executive authority could reintroduce the exemption from compulsory representation by a lawyer in labour matters at the highest level of appeal. Although the national courts are primarily responsible for taking ILO standards into account in the national context, they must do this in accordance with the interpretation of these standards given by the ILO bodies.
16. 982. The trade union is of the view that it will not be possible to lodge an appeal on a point of law (un pourvoi dans l’intérêt de la loi) at the national level to obtain a review of the Council of State ruling of 18 May 2005. Nevertheless, if such an appeal were possible, if the Government of France wished to take such action and was prepared to cover all the legal costs and if the Council of State respected the right to freedom of association and recognized the complainant trade union’s concern with the matter, such an appeal might constitute, if the trade union’s arguments were incorporated in essence, effective and adequate recourse at the national level.
17. B. The Government’s reply
18. 983. In a communication of 24 May 2006, the Government states that the complainant trade union had challenged before the Council of State Decree No. 2004-836 of 20 August 2004 amending civil procedure, in particular the provisions of article 39 repealing section R.517-10 of the Labour Code, under which “in labour matters, appeals at the highest level will be lodged, considered and judged in accordance with procedure and without representation by a lawyer in the Council of State and the Court of Cassation”. By its ruling of 18 May 2005, the Council of State dismissed the application by the SAGES on the grounds that it was not receivable.
19. 984. In a communication of 14 March 2007, the Government underscores that, by a decision of 6 April 2006, the Council of State ruled on the receivability of the abovementioned ruling of 20 August 2004 amending civil procedure, further to an appeal lodged by the General Confederation of Labour (CGT) calling for the annulment for excess of authority (excès de pouvoir) of articles 8, 24, 25, 28, 29, 39, 40, 41, 42 and 43 of the Decree of 20 August 2004. The appeal by CGT was dismissed by the Council of State and the provisions of the Decree of 20 August 2004 were judged to be in accordance with the cited national and international standards.
20. 985. In its complaint to the Committee, SAGES maintains that the decisions of the French Government violate freedom of association because they deprive teachers of higher education (holders of the “agrégation”) of the possibility of being assisted and represented by a trade union representative in the Court of Cassation on labour matters, thereby limiting the freedom of the teachers concerned to choose freely their own trade union defendant. Article 39 of the Decree of 20 August 2004 repealed section R.517-10 of the Labour Code, which provided that, in labour matters, appeals at the highest level were to be lodged, considered and judged in accordance with procedure and without representation by a lawyer in the Council of State and the Court of Cassation. Contrary to what was put forward by the SAGES, the Council of State rulings of 18 May 2005 and 6 April 2006 in no way prevent the trade union from assisting its members at the first instance in the labour courts and at the appeal stage in the civil courts. Furthermore, trade union action is not limited to defending its members in court. Strikes (paragraph 7 of the Preamble of the Constitution of 27 October 1946) and collective bargaining (paragraph 8 of the abovementioned Preamble) are other forms of trade union action. In addition, compulsory representation by a lawyer in the Court of Cassation would not in itself constitute a violation of freedom of association. In view of the establishment by the legislator of a mechanism to provide legal assistance, compulsory representation by a lawyer does not violate the right of those subject to trial to seek effective recourse in court (Council of State, 21 December 2001, Mr and Mrs Hofmann, page 652). Likewise, the monopoly held by the lawyers of the Court of Cassation (avocats aux conseils) has been deemed by the European Court of Human Rights to meet the requirements for a fair trial (26 July 2002, Meftah v. France).
21. 986. The SAGES also claims that the French Government’s actions prevent it from assisting and representing teachers in the Court of Cassation in labour matters, irrespective of whether they are holders of the “agrégation” or not, and therefore constitutes an infringement of the freedom of trade unions to choose their own subjects and areas of intervention. It is worth recalling in this respect that French legislation reserves for professionals the monopoly on legal representation (article 4 of the Act of 31 December 1971 reforming certain judicial and legal professions for lawyers, article 1 of Order No. 45-2591 of 2 November 1945 on the status of solicitors and the Order of 10 September 1917 on the lawyers of the Court of Cassation). Thus, in civil matters, representation by a lawyer of the Court of Cassation is normally compulsory. According to article 973 of the new Code of Civil Procedure, “parties shall be obliged, unless otherwise provided, to appoint a lawyer to conduct proceedings at the Council of State and the Court of Cassation”. The purpose of this appeal on a point of law at the highest level is to try and make the Court of Cassation determine that the ruling is not in conformity with the rules of law (section 604 of the new Code of Civil Procedure), calling upon lawyers who have specialized knowledge of these high-level procedures is therefore justified. At the European level, Directive No. 98/5/EC of the European Parliament and the Council of the European Community of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained provides that “in order to ensure the smooth operation of the justice system, Member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers” (article 5, paragraph 3.2). It is worth highlighting in this regard that, in many Member States of the European Union, representation by a lawyer is compulsory in civil and even social matters in the highest court of appeal, either by a specialized lawyer (Austria, Belgium, Denmark, Germany, Greece, Italy and Norway) or by a non-specialized lawyer (Luxembourg, Portugal, Spain and the United Kingdom).
22. 987. The SAGES maintains, moreover, that the French Government’s legislation prevents it from obtaining recognition as an employer and therefore infringes its freedom to employ its own workers and more broadly speaking threatens its freedom to organize its internal activities. The elements which have been cited in no way involve a violation of freedom of association. Article 39 of the Decree of 20 August 2004 and the two Council of State rulings of 18 May 2005 and 6 April 2006 in no way infringe on the freedom of the SAGES to organize its internal activities. Thus, the fact that the Council of State rejected by its ruling of 18 April 2005, and on the basis of a review of receivability, the appeal lodged by the SAGES against article 39 of the Decree of 20 August 2004 on the grounds that the SAGES lacked legal interest and was not competent to take action, does not in any way affect the freedom of the SAGES to organize its internal activities.
23. 988. Lastly, the SAGES cites discriminatory treatment with regard to freedom of association. The abovementioned legislation does not constitute discrimination against the SAGES as it is intended to apply to all trade unions and occupational associations. None of the factors set out above provide evidence of the violations of freedom of association referred to by the SAGES.

C. The Committee’s conclusions

1. 989. The Committee notes that the complainant trade union alleges that Decree No. 2004-836 amending civil procedure, which amends the Labour Code, makes representation by a lawyer compulsory in appeals at the highest level, thereby depriving it of the right to represent its members and infringing the right of workers’ organizations to organize freely their administration and activities.
2. 990. The Committee notes that Decree No. 2004-836 of 20 August 2004 repeals section R.517-10 of the Labour Code, which provided that “in labour matters, appeals at the highest level shall be lodged, considered and judged in accordance with procedure and without representation by a lawyer in the Council of State and the Court of Cassation”. Representation by a lawyer is now compulsory in labour matters (in private law), following the adoption of Decree No. 2004-836. The Committee also notes that representation by a lawyer is compulsory at the highest level of appeal in administrative matters. In addition, the Committee notes that the complainant trade union lodged an appeal to set aside the Decree repealing the exemption from compulsory representation by a lawyer in labour matters and that the French Council of State was competent at the first and last instances to give a ruling on this appeal. In its ruling of 18 May 2005, the Council of State dismissed the appeal by the SAGES because “the contested provision in itself in no way undermines the rights of the officials concerned under their statutes, the prerogatives of the bodies to which they belong or the conditions in which they exercise their duties”, “and consequently, the Minister of Justice has good cause to maintain that the claimant is not affected and is therefore not entitled to request that the contested regulatory provision be set aside”, and “the application is therefore not receivable and must be rejected”. The Committee notes that, according to the Government, on 6 April 2006, the Council of State ruled on the receivability of the Decree, further to an appeal by the General Confederation of Labour, and that the Decree was judged to be in accordance with both the national and international standards which were cited. The Committee notes that the SAGES claims that the decision by the Council of State violates the rights of some of its members to be assisted or represented, that it violates the right of the SAGES to organize its own administration and activities and to develop its own programme of action, that its status as employer was not taken into consideration, that the Council of State should have heard the case on its merits and should have reached a decision on the issue of the interpretation of its statutes by an ordinary court and that there was discriminatory treatment.
3. 991. The Committee notes that the allegations of the SAGES are directed more specifically against the Council of State ruling of 18 May 2005 than the Decree in question. The Committee observes that the SAGES alleges that the Decree infringes the freedom of association of qualified teachers (holders of the “agrégation”) who are employed by private teaching establishments or who are at the disposal of, or seconded to, private establishments, because it deprives workers of the possibility they previously enjoyed of being assisted and represented at the highest level of appeal by the SAGES; it also denies the SAGES the possibility of defending its own interests as an employer or of assisting and representing workers at the highest level. In addition, the SAGES alleges that the general wording of the Council of State ruling of 18 May 2005 limits this possibility in courts of first instance and at the appeal stage. Teachers belonging to the SAGES – or those wishing to join it or call upon its services to defend their rights before the labour court against the private establishment for which they work or used to work – are therefore, according to the SAGES, deterred from joining the SAGES by the Council of State ruling of 18 May 2005. The Committee takes note of the Government’s arguments that, contrary to what was put forward by the SAGES, the Council of State rulings of 18 May 2005 and 6 April 2006 in no way prevent the trade union from assisting its members in a labour court of first instance and at the appeal stage in a civil court. The Committee notes that the Government then underscores that trade union action is not limited to defending its members in court, as strikes and collective bargaining are other forms of trade union action. The Government also states that compulsory representation by a lawyer in the Court of Cassation would not in itself constitute a violation of freedom of association (it cites in this regard decisions of the Council of State and the European Court of Human Rights). Moreover, the Committee notes that the Government underscores that French legislation reserves for professionals the monopoly on legal representation and stresses that appeals on a point of law at the highest level justify recourse to lawyers who have specialized knowledge of processing appeals at that level. At the European Union level, Directive No. 98/5/EC provides that “in order to ensure the smooth operation of the justice system, Member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers” (article 5, paragraph 3.2). The Committee notes that the Government points out that, in many Member States of the European Union, representation by a lawyer is compulsory in civil and even social matters in the highest court of appeal, either by a specialized lawyer (Austria, Belgium, Denmark, Germany, Greece, Italy and Norway) or by a non-specialized lawyer (Luxembourg, Portugal, Spain and the United Kingdom). The Government underscores that the monopoly of the lawyers of the Court of Cassation (avocats aux conseils) has been deemed by the European Court of Human Rights to meet the requirements for a fair trial.
4. 992. The Committee recalls that its mandate is to determine whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 6]. Recalling also that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of their occupational interests [see Digest, op. cit., para. 495], the Committee considers that the restriction imposed on trade unions to represent their members in cases of appeal at the highest level or the restriction imposed on members to be represented by a lawyer rather than by their trade union, does not in itself constitute undue interference with this principle. The Committee is also of the view that the right of trade unions to organize their own administration and activities and to formulate their own programmes is not affected by the introduction of compulsory representation by a lawyer in the national courts. The Committee considers, however, that the introduction of a costly and previously non-existent obligation to be represented by a lawyer of the Court of Cassation, in other words a specialized lawyer, could, among other things, result in limiting the number of appeals lodged by trade unions or workers. The Committee also recognizes that this Decree could affect the rate of trade union membership, because fewer workers might be interested in joining trade unions if one of the trade union functions is removed. The Committee therefore requests the Government to monitor closely the consequences of this Decree, in consultation with the trade unions, and to verify in particular that it does not have any adverse or unduly unbalanced effects on the capacity of trade unions to represent their members, in particular by facilitating their appeals to the Court of Cassation. The Committee requests the Government to keep it informed in this regard.
5. 993. Furthermore, the Committee takes note of the complainant organization’s argument concerning the infringement of its rights to defend its own interests as an employer and of the Government’s reply. Considering its mandate, as described above, the Committee is of the view that its mandate does not extend to making decisions on issues involving general labour rights and not freedom of association. The issue of the status of the SAGES as an employer is not relevant to freedom of association.
6. 994. The Committee takes note of the allegation of discriminatory treatment lodged by the complainant organization. According to the latter, the Council of State ruling of 18 May 2005 constitutes discriminatory treatment against the complainant trade union and is an infringement of the rights set out in the ILO standards. the SAGES adds that, given that these restrictions affect the SAGES exclusively and in a disproportionate way, since it was this union’s freedom of association and that of the teachers which was restricted by the Council of State’s ruling of 18 May 2005, those restrictions are of a discriminatory nature. The Committee takes note of the Government’s reply that the legislation in question does not constitute discrimination against the SAGES because it is designed to apply to all trade unions and occupational associations. In these circumstances and recalling that it considers that the Decree is not in violation of the principles of freedom of association, the Committee considers that there is no discrimination in this case.

The Committee's recommendations

1. 995. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to monitor closely the consequences of Decree No. 2004-836, in consultation with the trade unions, and to verify in particular that it does not have any adverse or unduly unbalanced effects on the capacity of trade unions to represent their members, in particular by facilitating their appeals to the Court of Cassation. The Committee requests the Government to keep it informed in this regard.