Background to the complaint

1. In June 2017, the European Commission published a Communication entitled 'Aviation: Open and Connected Europe'[1] (‘the Communication’) and an accompanying Staff Working Document (‘the SWD’) on “Practices favouring Air Traffic Management Service Continuity”[2]. The Communication and the SWD encouraged Member States to apply a series of practices to improve service continuity in air traffic management in the event of strikes[3].

2. After the Communication and the SWD were published, the complainants, two trade unions representing air traffic controllers, contacted the Commission and expressed concerns. The complainants considered that the Communication and the SWD were adopted without a proper public consultation and that the documents recommend practices in a field that falls outside the EU’s remit[4]. The complainants also consider that the recommended practices do not respect the fundamental right to strike[5].  

3. The Commission replied in July 2017 and explained that the Communication and the SWD do not “propose any regulation as regards the right to strike, and [do] not interfere with national competences”. Commissioners Thyssen (responsible for Employment, Social Affairs, Skills and Labour Mobility) and Bulc (responsible for Transport) also met with the complainants.

4. In October 2017, the complainants contacted the Commission again, expressing their disappointment with the Commission´s position. They requested a “withdrawal and amendment” of the Communication and the SWD. 

5. The complainants turned to the Ombudsman in November 2017.

The inquiry

6. The Ombudsman opened an inquiry into the complaint that the Communication and the SWD are flawed, both in terms of content and the procedure for their adoption. The object of the inquiry was to examine whether the Commission, in accordance with the principle of due diligence, had taken the necessary steps to ensure that the proposals it made are compatible with the fundamental right to strike.

7. In the course of the inquiry, the Ombudsman took into account the arguments and information provided by the parties, as set out in the documents provided by the complainants, which included the correspondence between them and the Commission. The Ombudsman’s inquiry team also inspected the Commission's file on this case.

Arguments presented by the parties

8. According to the Commission, the Communication and the SWD do not encourage Member States to limit air traffic controllers’ right to strike. The Communication and the SWD refer to some existing practices in Member States that help mitigate the impact of national air traffic management strikes on the operation of the entire Single European Sky[6]. The Communication and the SWD do not propose legislation regarding the right to strike and do not, therefore, interfere with national powers as set out in the EU Treaties.

9. The complainants are aware of the non-binding nature of the Communication and the SWD and recognise that the Commission did not intend to regulate the right to strike (as this is a Member State responsibility). The complainants think, however, that the Commission intended to influence the way Member States regulate the right to strike in the area of air traffic management. The Commission should not, they argue, interfere at all in this area, as the right to strike is not a matter that falls within the EU’s remit. The complainants have repeatedly called on the Commission to encourage improved social dialogue as an alternative to restricting the right to strike, but without success.

10. The complainants point out that the right to strike is a fundamental right recognised in EU and international rules and they consider that the practices recommended in the Communication and the SWD go against the “collective dimension” of a strike and the constitutions of some Member States. The complainants think that it is not acceptable that the Commission has not carried out a proper public consultation on such a critical issue.

11.  The Commission states that it recognises that the right to strike is “indeed a fundamental right enshrined in EU and international legislation and conventions: when adopting national measures, Member States have to respect ratified international conventions such as the International  Labour Organisation fundamental conventions and the European Social Charter ratified by all EU Member States”.

12. The Commission states that, when adopting the Communication and the SWD, it followed its usual working procedure (usually referred to as the “interservice consultation”[7]). In accordance with its Aviation Strategy[8], the Commission investigated the impact of strikes on aviation and studied options to improve air traffic management service continuity in the event of strikes. When conducting the study, the Commission invited stakeholders to get involved. The complainants decided not to participate. The Commission also organised a workshop in 2016 so that stakeholders could express their views on the content of the study. The workshop was attended by social partners and professional associations. The two complainants, however, again declined to participate.

13. The complainants recognise that the Commission invited them to participate in the study and the 2016 workshop. However, they refused to participate because, in their view, the Commission had already decided on a “punitive and restrictive approach” towards industrial action and strikes in the area of air traffic management. They state that this approach is strongly influenced by the airline sector.

14. The Commission explains that the measures set out in the Communication and the SWD are a compilation of “best practices” that already exist in some Member States. Some of these practices might not apply to air traffic controllers, but to other professions in the aviation sector, such as pilots. In those Member States, the measures, which are already implemented, have not been successfully challenged as infringements of the right to strike.

15. According to the complainants, one of the practices recommended in the Communication and the SWD (the 72 hour individual notification of participation in industrial action) is in force only in one Member State (Croatia), where, in the past 14 years, air traffic controllers have gone on strike once, for two hours. The complainants therefore do not believe that this can be used as an example for other Member States to follow.

16. The complainants are also of the view that some of the practices recommended in the Communication and the SWD, such as ensuring 100% continuity of service for flights crossing the airspace of strike-affected Member States, may have serious safety consequences. In addition, the right to strike in some air traffic control centres that mainly handle overflights would be practically non-existent as a result.

17. According to the Commission, the Communication and the SWD are aimed at increasing predictability in air traffic management. The Commission argues that the more predictable the air space is, the safer it is. Safety is a particular priority in EU airspace, as it is the part of the world with the most air traffic, and that air traffic is increasing. In addition, stakeholders whose main concern is aviation safety, such as the air navigation service providers (who employ air traffic controllers), did not make any comments in the course of the study on safety consequences.

The Ombudsman's assessment

18. When the Commission publishes policy documents, such as the Communication and the SWD, it needs to ensure that it has obtained the requisite internal and external expertise, as well as input from a sufficiently diverse group of stakeholders. In this case, the Commission investigated the impact of strikes in aviation by conducting a study and holding a workshop on options to improve service continuity in air traffic management. The Commission invited stakeholders to get involved in both the study and the workshop. It also consulted its own departments before adopting the documents. The Commission therefore took adequate steps to ensure that the policy it adopted is compatible with the fundamental right to strike. The Ombudsman thus finds no maladministration by the Commission regarding this aspect of the case.

19. The complainants chose not to participate in the study or at the workshop organised by the Commission. The complainants’ argument that they were not given the opportunity to express their views on the Commission´s initiative cannot, therefore, be upheld. Their point that it would serve no purpose to participate in the study or the workshop as the Commission had already decided its approach to the matter is not supported by any evidence. The Ombudsman assumes that, had the complainants presented convincing evidence to the Commission about practices that violate the fundamental right to strike, the Commission would have been ready to take that evidence on board.

20. Regarding the content of the Communication and the SWD, the Commission acknowledges that the EU has no right to regulate the right to strike. The complainants consider that the EU has no right to get involved at all in this area. The Ombudsman notes that the EU has powers in the area of air traffic management and, by extension, has an interest in how Member States exercise their powers in the area of air traffic management. As such, it was not unreasonable for the Commission to set out a series of practices that it encourages Member States to apply to improve service continuity in air traffic management in the event of strikes.

21. As the EU has no power as regards how Member States regulate the right to strike, it is for Member States to decide freely what action, if any, to take in response to the Commission’s comments and advice. The Ombudsman notes that the Communication and the SWD are not legally binding documents. Thus, the Commission did not exceed its powers when it adopted the Communication and the SWD.

22. The Commission should clearly not encourage Member States to apply a practice that risks violating a fundamental right. The fundamental right to strike is not absolute, however, and can be restricted “in essential services”, as recognised by competent international specialised bodies [9].

23. In this case, the Commission notes that “when adopting national measures, Member States have to respect ratified international conventions such as the International Labour Organisation fundamental conventions and the European Social Charter ratified by all EU Member States”. It further points out that in those Member States where the measures it has listed are already implemented, those measures have not been successfully challenged as infringements of the right to strike. The Ombudsman therefore believes that the Commission has adequately addressed this matter.

24. The Ombudsman also notes that the Commission has addressed the complainants’ concerns regarding the potential safety consequences of some of the practices recommended in the Communication and the SWD by referring to the need for predictability in air traffic management in order to increase the level of safety. The absence of any comments regarding potential safety hazards from the stakeholders that participated in the study and workshop corroborates this argument.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the Commission.  

The complainant and the European Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 14/12/2018

 

[1] COM(2017) 286 final. For more information see: https://ec.europa.eu/transport/sites/transport/files/com20170286-communication-aviation-open-and-connected-europe.pdf

[2] SWD (2017) 207 final. For more information see: https://ec.europa.eu/transport/sites/transport/files/swd20170207-practices-favouring-air-traffic-management-service-continuity.pdf

[3] See Point 3.3 of the Communication:

“The Commission:

Encourages Member States and stakeholders, including social partners, to apply the following  practices with a view to improving service continuity in air traffic management: [...]

o Unions to provide early notification of strikes - Providing sufficient notice in advance of a strike in order to enable aviation stakeholders to prepare mitigation plans ahead of industrial action (e.g. at least 14 days prior to the beginning of the strike);

o  Staff members to provide individual notification of their participation to industrial action. - Individual notification of staff members in sufficient time to allow the management to organise the air traffic and manage the staff upfront of the strike (e.g. 72 hours prior to the beginning of the strike);

o  Preserve overflights of Member States affected by strikes - Ensuring 100% continuity of service for flights crossing the airspace of strike-affected Member States will reduce considerably the impact on the entire European Air Traffic Management network;

o Protect air traffic peak periods - Strikes occurring during peak periods of the day and peak periods of the year should be avoided. [...]”

[4] Article 153 of the Treaty on the Functioning of the European Union: “[...] the Union shall support and complement the activities of the Member States in the following fields: [...] 5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.”

[5] Article 24 of the Charter of Fundamental Rights of the European Union.

[6] https://ec.europa.eu/transport/modes/air/single_european_sky_en

[7] A consultation process among the different Commission departments in order to ensure that all aspects of the matter in question are taken into account. In this case, the Commission´s Directorate General for Mobility and Transport consulted, among others, the Commission´s Legal Service and the Commission´s Directorate General for Employment, Social Affairs and Inclusion in what it described as a ‘fast-track’ interservice consultation.

[8] https://ec.europa.eu/transport/modes/air/aviation-strategy_en

[9] The right to strike is not without limits. In the Member States, national laws lay down a series of requirements that must be met to render a strike lawful. The Committee on Freedom of Association of the International Labour Organisation (ILO) has specified that such conditions “should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations”.  The Committee on Freedom of Association has also established that “the right to strike may be restricted [...] in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population:http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2327580 ). The Committee includes “air traffic control” in the list of services that “may be considered to be essential”.. If a Member State were to apply the practices recommended by the Commission in the Communication and the SWD, the issue of whether these practices constitute a restriction of the right to strike “in essential services in the strict sense of the term” could therefore be resolved before a competent court or before the ILO´s Committee on Freedom of Association.