Constitutional Court, Parliament of Navarre v. Law 3/2012, Case No. 5603-2012

Constitution of Spain

Article 10, paragraph 2

Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.

Article 96, paragraph 1

Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with general norms of international law.

Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:

Ratified treaty;1 Work of international supervisory bodies2 

Trial period/ Collective agreements/ Reference to international law to strengthen a decision based on domestic law

The claimant requested that articles 4, 14.1 and 14.3 of Law 3/2012 concerning the adoption of urgent measures to reform the labour market be declared unconstitutional. According to the Parliament of Navarre, article 4 of the law breached the constitutional right to work and ILO Convention No. 158, since it established a probationary trial period of one year in the case of permanent contracts in order to provide support for entrepreneurs. In relation to article 14.1, the claimant argued that it breached the constitutional rights to freedom of association and collective bargaining, since it meant that any disputes between employers and trade unions on the suspension of an agreement had to be submitted to compulsory public arbitration. With regard to article 14.3, which established that agreements with enterprises would take priority over higher-level agreements in a series of spheres, the claimant argued that this constituted a breach of the constitutional right to collective bargaining.

Regarding article 4, the Court deemed that the constitutional right to work was not absolute and could enter into conflict with other constitutional rights. The Court also indicated that Article 2.2 of ILO Convention No. 158 authorized states to exclude from its application workers who had not completed the required period of probation or qualifying period of employment, as long as the duration of this period had been determined in advance and was of reasonable duration. Referring to the report of the committee set up to examine the representation to the ILO and in relation to permanent “contracts for new employment” introduced in France in 2005,3 the Court acknowledged that the ILO had declared that the duration of trial periods should not be “excessively long”. However, the Court held that the ILO “[h]as also admitted that political reasons – and, in particular, the promotion of full and productive employment – as well as measures adopted to counteract or restrict exclusion from protection, may contribute to justifying a “relatively long” trial period.4

In relation to the breach of the constitutional right to collective bargaining deriving from articles 14.1 and 14.3, the Court stated that this constitutional right did not imply the disempowerment of the state, which, through the law, may establish justified and reasonable restrictions to this right. In this case, the restrictions were linked to objectives such as the defence of productivity and the viability of enterprises – and, ultimately, employment.

In conclusion, the Court, making use of ILO Convention No. 158 and the work of the ILO’s supervisory bodies to strengthen its decision concerning the first allegation, declared the provisions subject to the claim to be constitutional, dismissing the claim lodged by the Parliament of Navarre.5

2 Committee set up to examine the representation alleging non-observance by France of the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Right to Organise and Collective Bargaining Convention, 1949 (No. 98) ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); and ILO Termination of Employment Convention, 1982 (No. 158), made under Article 24 of the ILO Constitution.

4 Page 26 of the decision.

5 Judge Fernando Valdés Dal-Ré submitted a dissenting vote, arguing, among other things, that Article 2.2. of ILO Convention No. 158 had been incorrectly applied; the convention being an “indisputable interpretative canon” and considering that a probationary trial period of one year did not comply with the requirement of reasonableness. The judge stated that in the sentence the majority had avoided analysing whether the advantages for employers were well balanced against sacrifices on the part of workers, a criterion fundamental to determining whether the measure was reasonable. He also claimed that the conclusions set out in the Report of the ILO Committee on Freedom of Association approved by the ILO Governing Body at its 320th Session, which resolved the various complaints submitted by several trade union organizations on the legislative reforms concerning collective bargaining carried out in Spain had not been taken into account (See http://www.ilo.org/gb/GBSessions/GB320/ins/WCMS_239691/lang--es/index.htm).

Full text of the decision