Right to Strike and Public Service: What the Agents of the Port of Bordeaux Changed

You are the owner of a flat in Mulhouse and your tenant calls you, panicked: the port of Bordeaux is on strike, a consignment of furniture destined for his home is blocked. Or you are a business owner in Guebwiller, and your goods imported by sea will not arrive on time. A strike in a public service directly concerns you, even hundreds of kilometres away.

But do you know what rules govern this right to strike? Are the staff of the Autonomous Port of Bordeaux, a public establishment, subject to the special regime for public services or to ordinary law? The question may seem technical, but its consequences are very concrete: notice period, minimum service, employer's liability... A 1997 decision of the Court of Cassation (No. 95-22.276) answers this clearly.

In this case, the high court ruled that the provisions of the Law of 31 July 1963 (codified in Articles L. 521-2 et seq. of the Labour Code, which require five days' notice and individual notification) apply to staff of companies responsible for managing a public service, whether administrative (SPA) or industrial and commercial (SPIC). The Autonomous Port of Bordeaux, a state public establishment, falls into this category. Here is the story behind this decision.

The Facts: A Story Like Any Other

In the early 1990s, the Autonomous Port of Bordeaux (PAB) was an industrial and commercial public establishment (EPIC, meaning it manages a commercial activity but for the general interest). Its staff, some of whom were unionised with the CGT, regularly exercised their right to strike. But at the end of 1993, the movement intensified: from December, work stoppages were organised without notice.

The Autonomous Port, as employer, then applied to the interim relief judge (the judge who rules urgently) of the Tribunal de Grande Instance of Bordeaux to have the illegality of these strikes declared. It sought an order compelling the strikers to resume work under a penalty payment (a daily financial penalty). At first instance, the judge ruled in favour of the Port: he ordered the cessation of the strike, considering that the ordinary law on strikes (the 1963 Act) applied.

But the CGT union appealed. The Court of Appeal of Bordeaux, in a judgment of 29 June 1995, reversed this order. It held that the staff of the Autonomous Port of Bordeaux were not subject to the 1963 Act, because the PAB was an industrial and commercial public service, and the Act was said to apply only to administrative public services. The Port appealed to the Court of Cassation. The Court of Cassation, in its judgment of 16 July 1997, quashed the appeal judgment and restored the solution of the interim relief judge. It affirmed that the 1963 Act applies to all public services, including industrial and commercial ones.

The Court's Reasoning — Analysed

To understand, we must go back to the Law of 31 July 1963 on certain modalities of strikes in the public sector. This text, now codified in Articles L. 521-2 et seq. of the Labour Code, imposes in particular: a five clear days' notice (minimum period before the start of the strike) emanating from a representative trade union organisation, and individual notification of participation in the strike by each employee.

The question was: does this Act apply to the staff of an EPIC like the Autonomous Port of Bordeaux? The Court of Cassation answers yes. Its reasoning is twofold. First, it recalls that the Act applies to "staff of companies, bodies and establishments responsible for managing a public service," without distinguishing according to the administrative or industrial and commercial nature of the service. Second, it notes that the Autonomous Port of Bordeaux is a state public establishment responsible for a public service mission (management of the port). Therefore, its staff fall within the 1963 Act.

In doing so, the Court of Cassation makes an important clarification. Until then, some courts (like the Court of Appeal of Bordeaux) considered that SPICs were exempt from this special regime. Now, the opposite applies: only the nature of the public service matters, not its administrative or commercial character. This is a confirmation of earlier case law (e.g., judgment of 20 November 1990, No. 89-41.286) which had already applied the Act to an EPIC (EDF).

The CGT union's arguments? It argued that the Port's staff were subject to the ordinary law on strikes, which is more liberal (no mandatory notice, no individual notification). But the Court dismissed this argument: the 1963 Act is of public policy (it is binding on all) and admits of no exception except for public services of a non-industrial or commercial nature, which is not the case here, but the Act itself does not make this distinction.

What This Changes for You — Concretely

If you are the owner of a warehouse in Mulhouse, or the manager of a transport company in Guebwiller, this decision has a direct impact on your relations with port public services, but also with other public establishments (airports, rail networks, etc.).

For users: when a strike occurs in a public service, the employer (the establishment) must comply with the notice and notification rules. If not, you can challenge the legality of the strike and claim damages (financial compensation) for the harm suffered (e.g., blocked goods, delayed construction). Concretely, if the Autonomous Port of Bordeaux calls a strike without notice, a carrier whose containers are blocked can apply to the interim relief judge to stop the strike and obtain compensation.

For employers (like the Port): you must enforce compliance with the 1963 Act by your staff. In the event of an unlawful strike, you can obtain an interim order for the resumption of work under a penalty payment. Example: a logistics company based in Guebwiller loses €5,000 per day of illegal strike. The requested penalty payment could be €1,000 per day of delay, which is deterrent.

For striking employees: you must respect the five-day notice and individually notify your participation. Failing this, your strike is unlawful and may lead to disciplinary sanctions (suspension, even dismissal) and damages to the employer.

In summary, this decision secures contractual relations: users know that strikes in public services are regulated, and employers have legal tools to counter them if they are illegal.

Four Tips to Avoid This Type of Dispute

• Check the legal nature of the body: before contracting with a public service (port, airport, hospital), ensure it is subject to the 1963 Act. If in doubt, ask for the establishment's status.
• Demand compliance with the notice: if you are directly affected by a strike, ask the employer to communicate the union notice. If it does not exist, you can challenge the strike.
• Document your loss: keep a record of delays, loss of goods, extra costs. This evidence will be essential to obtain compensation.
• Consult a lawyer before acting: interim relief proceedings are fast but technical. A professional will help you choose the right route (interim suspension, interim payment, etc.).

Further Exploration: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. Already in 1990, in the judgment No. 89-41.286 (EDF), it had applied the 1963 Act to an EPIC. More recently, in 2015, the Court confirmed this principle for SNCF staff (No. 14-10.431).

There was a divergence with some administrative courts, but the Court of Cassation ruled: the 1963 Act falls under labour law, and its application is uniform. Since 1997, the case law has been settled. No major developments are to be noted, but the question could arise for new public services delegated to private companies. For example, a private company managing a public service (motorway concession): does its staff fall under the 1963 Act? The trend is towards extension, but each case is specific.

What You Must Absolutely Remember

FAQ:

• Does the 1963 Act apply to all public services? Yes, regardless of their administrative or industrial and commercial character.
• What is the notice period? Five clear days before the start of the strike.
• Can I challenge an illegal strike? Yes, by interim relief before the Judicial Court, to stop the strike and obtain damages.
• What are the risks for the striker? Disciplinary sanctions and financial liability.
• What if the employer is a private company managing a public service? Case law tends to apply the 1963 Act, but must be checked on a case-by-case basis.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →