Photo credits: AFP
The large-scale strike initiated in the French refineries of the companies Total Energies and Esso-ExxonMobil has caused a shortage of fuel in the country for several days. To answer it, the executive chose to carry a major attack on the right to strike, however fundamental freedom, by activating a device with high potential liberticide: the requisition.
Article L2215-1 of the General Code of Local Authorities (CGCT) on which the government is based, and which provides for the possibility for the prefects to “requisition any property or service, require any person necessary for the operation of this service or the ‘use of this property and prescribe any useful measure’, comes from a line of rules that are particularly dangerous for the rule of law.
A warrior genealogy
Indeed, the traditional powers of requisition find their basis in the provisions of the law of July 11, 1938 on “the general organization of the nation for time of war”, which prepared the conflict with Nazi Germany, a few weeks of the Sudetenland crisis and the inexorable march towards the Second World War. This law was extended after 1944 until it was modified by an ordinance of January 6, 1959 taken by the first government of General de Gaulle – on the basis of the exorbitant powers attributed by article 92 of the 1958 Constitution – and which significantly extended the prerogatives of the executive in the context of the Algerian war.
These texts, therefore intended to apply only in situations of particularly serious disturbances (wars or external conflicts), have nevertheless been, over time, used by the various governments to try to put an end to strike movements. For example, striking personnel were requisitioned in 1961 as part of a social conflict that arose within the transport authority of the city of Marseille, before the decree was deemed illegal by the Council of State.
Much later, a law of March 18, 2003 extended this power of requisition to the prefects, a basis used today against striking employees. At the time, the Minister of the Interior, Nicolas Sarkozy, responding to fears of giving the prefects too general a power contrary to freedoms, indicated before the National Assembly that it was only a question of dealing with natural disasters , industrial or health risks…
Today, it is no longer in the context of a war or a natural or industrial disaster that the requisition is used, but in the context of a social conflict necessarily leading to consequences on transport dependent on fossil fuel what is oil. The interference thus made with the right to strike of these striking employees is therefore neither necessary nor proportionate to a legitimate aim.
The recurring use by the executive of laws initially presented as intended to be implemented only in an exceptional manner is now abundantly documented and regularly denounced.
We know the freedom-killing implications of the state of emergency implemented by successive governments since the 2015 attacks, taking advantage of this legal windfall to monitor and repress social movements. We also know the wanderings and misappropriations of the executive in the implementation of the state of health emergency in 2020 and 2021, in defiance of our freedoms to come and go and to demonstrate.
In these conditions, we can only warn of the danger that awaits each of us if we are not careful: that of losing, one after the other, our hard-won freedoms. The right to strike, like the freedom of assembly, association and expression, is a fundamental right which cannot depend on a political agenda tending to control and repress the social movement in the diversity of its modes of action.
Editors and first signatories
Xavier Sauvignet, lawyer at the Paris Bar, Stéphanie Hennette-Vauchez, professor of public law at the University of Paris Nanterre, Savine Bernard, lawyer at the Paris Bar, Serge Slama, professor of public law at the University of Grenoble, Raphaël Kempf, lawyer at the Paris Bar, Cyril Wolmark, professor of private law at the University of Paris Nanterre, Elsa Marcel, lawyer at the Paris Bar, Nicolas Moizard, professor of labor law at the University of Strasbourg, William Bourdon, lawyer at the Paris Bar, Charlotte Girard, lecturer in public law at the University of Paris Nanterre, Arié Alimi, lawyer at the Paris Bar, Emmanuel Dockès, Professor of private law at the University of Lyon 2
Judith Krivine, lawyer at the Paris Bar, Dominique Tricaud, lawyer at the Paris Bar, Clara Gandin, lawyer at the Paris Bar, Vincent Brengarth, lawyer at the Paris Bar, Emilie Videcoq, lawyer at the Paris Bar, Anne Braun, lawyer at the Lyon Bar, Caroline Mécary, lawyer at the Paris Bar, Elodie Tuaillon-Hibon, lawyer at the Paris Bar, Yéléna Mandengue, lawyer at the Paris Bar, Isabelle Denise, lawyer at the Paris Bar, Anis Harabi, lawyer at the Paris Bar , Matteo Bonaglia, lawyer at the Paris Bar, Xavier Courteille, lawyer at the Paris Bar, Aline Chanu, lawyer at the Paris Bar, Guillaume Martine, lawyer at the Paris Bar, Alexis Baudelin, lawyer at the Paris Bar, François Brunel, lawyer at the Bar of Bayonne, Guillaume Arnaud, lawyer at the Bar of Seine-Saint-Denis, Eliot Sourty, lawyer at the Bar of Paris, Camille Vannier, lawyer at the Bar of Seine-Saint-Denis, Sophie Challan-Belval, lawyer at the Bar of Rouen , Manuela Grévy, lawyer member of the Council of State and the Court of Cassation, Hanna Rajbenbach, lawyer at the Paris Bar, Muriel Ruef, lawyer at the Lille Bar, Rachel Saada, lawyer at the Paris Bar, Stéphane Maugendre, lawyer at the Seine-Saint Bar -Denis, Jean-Louis Borie, lawyer at the Clermont-Ferrand Bar, Hervé Tourniquet, lawyer at the Paris Bar, David Metin, lawyer at the Versailles Bar
Full list of signatories can be found here.