'Requisitioning' Striking Employees: What Does It Mean?

• Published date: 04 November 2022
• Subject Matter: Employment and HR, Health & Safety, Employee Rights/ Labour Relations
• Law Firm: lus Laboris
• Author: Mr Jean-Benoit Cottin (Capstan Avocats)

There has been significant media attention in France recently around 'requisitioning' striking employees, in connection with the recent wave of strikes that have affected fuel distribution. What is it, and when is it possible?

In France, the requisitioning of striking employees (requiring them to work) generally results from a decision by a prefect, the regional state representative. The General Code of Local Authorities provides that:

'in emergencies, when the observed or foreseeable damage to public order, health, peace and safety so requires and when the means available to the prefect no longer allow the pursuit of the objectives for which he has police powers, he may, by reasoned decree, for all the communes of the department or several or one of them, requisition any property or service, request any person necessary for the operation of this service or the use of this property and prescribe any useful measure until the breach of public order has ended or the conditions for its maintenance are ensured.'

(Article L. 2215-1, 4').

Refusal to carry out a requisition decision is an offence punishable by six months' imprisonment and a fine of EUR 10,000 euros for employees who do not comply.

This text above covers the requisitioning of private sector employees. The Conseil d'Etat ruled this was possible as early as 2003 stating that a prefect can:

'legally requisition the striking agents of a health establishment, even a private one, with the aim of ensuring the maintenance of a sufficient number of staff to guarantee the safety of the patients and the continuity of care.'

(CE 9 December 2003 n' 262186).

'Particular importance' and 'threat to public order'

Today, administrative case law makes the validity of requisitioning private sector employees conditional on the fact that:

'the activity is of particular importance for the maintenance of economic activity, the satisfaction of the essential needs of the population or the functioning of public services, when the disturbances resulting from the strike create a threat to public order'

(Conseil d'Etat, 27 October 2010, n'343966. This decision was also rendered in relation to a strike affecting fuel distribution.)

For example, the following are likely to justify a requisition request, given the nature of the activity in question:

• Health activities: judgements have related to midwives in an obstetrics department, doctors, 'intervention' services in a medical clinic, medical analysis laboratories and staff of...