The case concerned the alleged violation by Norway of Article 11 of the European Convention of Human Rights in relation to a decision by the Norwegian Supreme Court to declare unlawful an announced boycott by the trade union NTF which was planned in order to pressure the shipping company Holship Norge AS to enter into a Norwegian collective agreement for dockworkers.

Article 11 of the European Convention of Human Rights 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.”

In order to understand the case, it is important to underline that Norway ratified the International Labour Organisation (ILO) Dock Work Convention No. 137 in 1974. The facts of this case are partially originated from the way Norway implemented articles 2 and 3 of the ILO Convention, which read as follows:

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.

[...]

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.

The case started in 2013 from a dispute in the Port of Drammen, after the company did not want to enter the collective framework agreement signed by the Confederation of Norwegian Enterprise (NHO), the Norwegian Logistics and Freight Association (NHO logistikk og transport) and trade unions LO and NTF, in respect of a fixed pay scheme for dockworkers. The collective framework agreement was signed back in the 1970s to secure the implementation of ILO Convention No. 137 and was renewed biannually. Adjustments for this collective framework agreement existed for all ports, including the Port of Drammen.

In order to ensure that dockworkers would be properly registered as imposed by Article 3.1 of ILO Convention 137, the collective Framework Agreement established an Administration Office for dock work in the port of Drammen. This entity managed dockworkers and employed dockworkers in the Drammen permanently (in line with Article 3.2 of the ILO Convention). In addition, the collective Framework Agreement foresaw that “for vessels of 50 tonnes dwt [deadweight tonnes] [...], the unloading and loading work shall be carried out by dockworkers [...] save for all unloading and loading at [a] company’s own facilities, where the company’s own people are used for unloading and loading”.

The company, Holship Norge AS, was neither a member of NHO or ‘NHO logistikk og transport’ nor a party to the Framework Agreement and therefore did not have an obligation to employ the dockworkers managed by the Administration Office (and the NFT union). Until 2013 it used the services of the Administration Office when the company needed loading or unloading services in the port of Drammen. In 2013 it employed four persons in the port who, in addition to performing other tasks as employees for Holship, carried out loading and unloading operations for their employer.

Over time, the unions tried to start negotiating with the company the application of the framework agreement and ultimately decided to organise a boycott for all ships where the company Holship was involved in unloading and loading. Prior to the blockade, NTF applied for an advance declaratory judgement that the announced boycott would not be unlawful.

The First Instance City Court and the High Court concluded that the boycott would be lawful. The case finally reached the Norwegian Supreme Court, that declared the boycott unlawful, as it went against the freedom of establishment guaranteed under the Agreement on the European Economic Area (EEA Agreement). The EEA Agreement entered into force on 1 January 1994 and brings together the EU Member States and the three EEA European Free Trade Agreement States — Iceland, Liechtenstein and Norway — in a single market, referred to as the "Internal Market".

The Supreme Court based its decision also on the mixed interests of the trade union NTF in the employment of the Administration Office dockworkers versus the employees of the company Holship. It said: “it follows from the request that NTF participates in the management of the Administration Office (AO). It is in NTF’s and the AO’s common interest to preserve the market position of the AO. This combination of a business objective with NTF’s core tasks as a trade union becomes possible when a trade union engages in the management of an undertaking, such as it turns out in the present case. [...] 50. The effects of the priority clause and the creation of the AO appear therefore not to be limited to the establishment or improvement of working conditions of the workers of the AO and go beyond the core object and elements of collective bargaining and its inherent effects on competition [...] 51. Moreover, the Court notes that the AO system in the present case protects only a limited group of workers to the detriment of other workers, independently of the level of protection granted to those other workers. In particular, boycotts, such as the one at issue, detrimentally affect their situation. They are barred from performing the unloading and loading services and may even lose their employment if their employer affiliates to the Framework Agreement”.

Therefore, the trade union NTF action had to be balanced with the “rights and freedoms of others”, as stated in paragraph 2 of Article 11 of the EU Convention on Human Rights, and the boycott “would have amounted to an unlawful/disproportionate restriction of Holship’s right to freedom of establishment as guaranteed by the EEA Agreement”.

The unions NTF and LO decided to bring the case before the European Court of Human Rights, which, on 10 June 2021, declared that there has been no violation of Article 11 of the European Convention of Human Rights and supported the views of the Norwegian Supreme Court. As to the substance of the right of association enshrined in Article 11 of the Convention it said: “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[...]. 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 [...]”. According to the European Court of Human Rights, in the weighting of different interests at stake, the Norwegian Supreme Court had “acted within the margin of appreciation afforded to it in this area when declaring the boycott unlawful”. It noted that in this case a majority of the Norwegian 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” [...]. 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 [...]”.

Subsequent to the Norwegian Supreme Court decision in this case, NHO and LO and NTF concluded a collective agreement for ports and terminals, which replaced the Framework Agreement, in which there is no system with priority for registered dockworkers.

According to the European Court of Human Rights, “the restriction of the application unions’ Article 11 rights did not as such prevent them from engaging in further collective bargaining [...]”. One more evidence that freedom of association and assembly had not been impaired.