Agora #95
4 - 10
In a democratic society, freedom of expression is never a given; it must be constantly relearned, protected, and exercised with discipline.
Freedom of Association and Freedom of Expression:
“There is no freedom without responsibility and control. The absence of responsibility and control endangers freedom as much as prohibitions and censorship. Freedom without rules exists only in democratic anarchy and is therefore doomed to perish. The first effect of this situation is to provoke puritanical and authoritarian reactions.”
The writer Jean Daniel asserted that there is no freedom without responsibility and control. I gladly echo this thought: there is no freedom without responsibility, no dialogue without respect, no progress without contradiction.
This mantra often comes to mind when I defend a union agent or representative faced with the sometimes-fragile boundaries between the right to freedom of expression and the duty of loyalty. In the European civil service, freedom of association is a recognised legal right, but it remains a delicate balancing act: protected, certainly, but regulated; valued, but sometimes feared; essential to social dialogue, but often a source of institutional tension.
Expressing yourself is allowed, but remember the basic rule: act freely, but with discernment; speak frankly, but with respect; challenge, but in order to move forward.
A fundamental right under pressure
Freedom of association, as enshrined in Article 24a of the Staff Regulations of Officials of the European Union, is a pillar of European social dialogue. This text requires institutions to “refrain from any action which could impede the exercise of freedom of association.” This right lies at the intersection of labor law and constitutional law, as it derives from the general principles of EU law, the Charter of Fundamental Rights[1], and the European Convention on Human Rights[2].
In this regard, the union is the legitimate instrument for the collective expression of the workforce. It is the framework within which the union’s voice finds not only its representative strength but also the legal protection attached to its mandate. When a representative speaks on behalf of the organisation he or she represents, on the basis of a position adopted collectively, he or she acts in his or her capacity as spokesperson for the union, and not in an individual and personal capacity. In this context, they cannot, in principle, be criticised for not having sought prior authorisation within the meaning of Article 17 bis of the Staff Regulations: the publication, position, or communication of which they are the author does not fall within their personal sphere, but within the protected sphere of union expression. It is precisely this role as a “vehicle for expression” that the law recognises for trade unions: to allow the circulation of criticism, information, and debate, while protecting those who provide the voice for it.
However, in institutional practice, this right is far from clear-cut. The balance it requires with other statutory obligations—in particular the duty of loyalty and the duty of dignity and discretion—makes it an area where the most delicate tensions in the European civil service play out: those between critical thinking and hierarchical obedience, between activism and neutrality, between defending a collective and loyalty to an institution.
While Article 11 of the Statute governs loyalty, and Article 12 governs dignity and discretion, Article 24 bis acts as a counterpoint: it guarantees freedom of representation, speech, and dissent within the institutional framework.
These tensions are not theoretical. They have been present in the case law of the General Court and the Court of Justice of the European Union since the 1990s. In some cases, institutions have been called to order for attempting to obstruct the circulation of trade union information—for example, by ordering their internal messaging services to temporarily block the distribution of trade union newsletters[3]. These rulings serve as a reminder that no administrative measure may seek to limit or delay trade union communication without violating the collective freedom of expression of employees.
Conversely, however, the same case law emphasises that this freedom is not absolute. When expression goes beyond institutional criticism to become a personal attack or an assault on honor, it may justify a response from the administration. This subtle interplay between rights and duties is at the heart of contemporary legal thinking on democracy in the workplace.[4]
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[1] Article 12 of the Charter
[2] Article 11 of the Convention
[3] Judgment of January 18, 1990, Maurissen and Union syndicale v. Court of Auditors, C-193/87 and C-194/87, paragraph 13.
[4] We also contributed to AGORA #92 , which is the main topic of its theme.
The duty of loyalty: a requirement that must be viewed in context
Loyalty requires civil servants to act “solely in the interests of the Union.” This duty is often invoked by administrations to regulate or criticise union activity. However, the Court has repeatedly pointed out that this obligation is not absolute: it must be assessed in context.
Therefore, when a civil servant expresses themselves in a trade union or activist context, they are following a different logic to that of hierarchical expression. Activists are not disobedient employees; they are participants in social dialogue, often invested with a representative mandate and therefore with particular legitimacy. This is precisely what case law has recognised: the obligation of discretion and loyalty must be interpreted less strictly when it comes to union expression or communication in preparation for a general staff meeting[1].
In other words, criticism becomes acceptable, even harsh criticism, as long as it remains proportionate and constructive. A breach of the duty of discretion can only be upheld in the case of particularly serious statements, such as those that are seriously offensive or clearly undermine the dignity of the persons concerned.
This degree of flexibility is fundamental, as it reflects the recognition of an institutional fact: trade unionism is based on debate, sometimes on confrontation, and therefore on freedom of speech. Restricting this freedom of speech in the name of a misguided sense of loyalty would amount to neutralising all forms of collective representation.[2]
However, the history of European civil service shows that this obvious fact has not always been accepted. In some cases, the courts of first instance had considered that “the reasons for the official’s behaviour were irrelevant” in determining whether he had breached his duty of loyalty. This formalistic approach has been corrected: loyalty is not judged on absolute terms, but in light of the context.
This reminder from the judge is crucial. It means that activism, union involvement, or expressing institutional disagreement do not in themselves constitute a disciplinary offense. What matters is the purpose of the act: is it intended to harm the institution or, on the contrary, to contribute to its improvement?
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[1] Judgment of December 15, 2021, HG v European Commission, T 693/16, EU:T:2021:895, paragraphs 83 and 95-98
[2] I would like to give a shout-out to a staff representative who introduced me to Frédéric Laloux’s book, Reinventing Organizations: A Guide to Creating Organizations Inspired by the Next Stage of Human Consciousness (in English published by Nelson Parker, 2014). This essay, which has become a global reference on the evolution of managerial structures, traces the different stages of organisational development, from authoritarian hierarchical models to more “opalescent” or “evolutionary” forms based on trust, autonomy, and collective meaning. Laloux’s work is invaluable when observing institutional functioning: it provides a framework for understanding organisational behaviour which, when applied to the European public sector, sheds light on the nature of the tensions we encounter. It is fascinating—and often disturbing—to see, as we examine the various cases, how closely the management or administrative style in question corresponds to one of the paradigms described by the author: rigid structure, systemic mistrust, fear of disorder, excessive control of communications, in contrast to a culture of dialogue and collective learning. In many disciplinary cases or administrative investigations, the limitations identified by Laloux are evident: governance rooted in control rather than trust, a reflex to protect the hierarchy rather than listen, and conflict management that favors punishment over understanding.
But the opposite extreme is not without its pitfalls: a managerial culture focused on inclusion and the constant search for interaction can, when lacking structure, be perceived as weakness or a lack of accountability, or even as a failure to recognise the challenges and limitations of each individual.
When these patterns are not overcome, they inevitably lead to mistrust, institutional tension, and, often, the judicialisation of labour relations.
Freedom of expression for unions: a challenging right, bound by proportionality
Freedom of expression is never purely declarative. It lives through the use that is made of it, and it is tested in times of tension. In the union context, it is often exercised through press releases, leaflets, electronic messages, or speeches at staff meetings.
Yet this freedom has its limits: criticism must not turn into defamation, and the denunciation of malfunctioning must not degenerate into personal attacks. It is in this nuance that the boundary between freedom and abuse is played out.
Case law imposes a principle of proportionality here: the union’s statements or actions must remain necessary and appropriate to the objective pursued. If the same message could be conveyed in a less aggressive or less public manner, without losing effectiveness, the judge may consider that the communication went beyond what was “necessary.”
This requirement for moderation is not a call for restraint; it is an invitation to responsibility. The union does not lose its voice, but it must control its reach. Criticism of procedures, human resources policies, or working conditions remains legitimate. What is prohibited is unnecessary naming and shaming, public humiliation, or conflating institutional failings with individual behaviour.
In such cases, the judge never denies freedom of association; he simply places it within a framework of mutual respect. He requires the union to remain faithful to its mission: to defend the interests of the staff and not to settle personal scores.
When freedom of expression meets the duty to provide assistance
By contrast, when union expression crosses the line and becomes potentially damaging to an employee’s honour, the law requires the administration to respond. Article 24 of the Staff Regulations provides for a duty to assist: when an employee’s dignity or reputation is undermined, the institution must intervene “with all necessary energy.”
This duty is not symbolic. It requires the administration to act quickly and effectively, both to put an end to the offending behaviour and to compensate the victim, if necessary. A simple polite invitation to publish a “corrigendum” is sometimes not enough: if the administration acknowledges that an employee has been publicly defamed, it will often be legitimately required to take concrete measures against the employee concerned and, by conducting an administrative investigation, offer support to the employee whose integrity has been damaged, by possibly recognising their status as a victim of deviant behavior and issuing an investigation report to establish this acknowledgement.
This mechanism perfectly illustrates the logic of the rule of law within the civil service itself: every freedom comes with responsibility, and every right is limited by respect for the rights of others.
But again, proportionality is key. A disciplinary or legal measure requested by a victim cannot be considered an excessive infringement on freedom of association, provided that it is necessary and proportionate to the seriousness of the abuse.
The administration therefore finds itself in a balancing act: it must protect both freedom of association and individual dignity. And it is often in the way these situations are handled—promptly, fairly, and impartially—that the democratic maturity of an institution is revealed.
However, it is unfortunate that the number of requests for assistance is now growing exponentially, whether they concern agents claiming to be victims of misconduct or those who are the subject of allegations. This phenomenon reflects less an explosion of misconduct than a lack of structural investment in human resources and prevention tools.
Too often, institutions react after the fact, when it would be possible to act upstream by implementing relational regulation mechanisms or providing training in communication, conflict management, and goodwill in the workplace.
These measures, which focus on psychological understanding and the quality of dialogue, would help to reduce the number of disputes ending up in court and restore ethically acceptable professional relations, in keeping with the spirit of the European public service.
Administrative investigations: between suspicion and presumption
Another frequent source of tension in union life is the conduct of administrative investigations. When an employee—and even more so a union representative—is the subject of such an investigation, they often feel stigmatised, as if the mere opening of the investigation already carries an implicit judgment. Legally, however, the decision to open an investigation does not constitute an act of grievance: it cannot be challenged because it does not yet have any definitive legal effect.
EU law considers these investigations to be merely preparatory measures, intended to verify whether there has been a breach of statutory obligations. The administration has broad discretion in this regard, provided that there is reasonable suspicion of an infringement. This approach may seem frustrating to those subject to it, but it is understandable: any disciplinary procedure requires a preliminary verification phase. However, this does not mean that the investigation is beyond control: its conduct and conclusions may be reviewed incidentally in the context of an appeal against the final disciplinary decision.
The difficulty, here again, lies in perception. An investigation launched in a climate of union tension can easily be interpreted as an act of retaliation. That is why institutions must exercise increased vigilance: transparency, impartiality, and caution must guide their actions, so that the investigation remains an instrument of truth and not a tool to dissuade discord.
In many cases, the investigation aims to assess the factual basis of the union’s statement: the work of gathering, verifying, or cross-checking information carried out by the union to support a publication or public statement. The aim is to determine whether this expression is based on tangible and verified evidence, or whether it merely relays, without distance or analysis, the isolated complaint of a staff member.
However, the investigation can sometimes take an even more problematic turn: we have observed situations where a single person—often the one who signed or distributed a collective union message—is targeted individually, even though the publication originated from a group or representative body. Such an individualised approach not only distorts the very nature of union communication, but also undermines procedural fairness. A truly impartial and balanced response should logically involve all members of the collective on whose behalf the publication was made.
Otherwise, the investigation may be perceived, and rightly so, as stigmatising the individual concerned, creating a sense of injustice and reinforcing mistrust of internal control mechanisms. Moreover, being targeted individually for participating in union activities fuels fears of personal reprisals. This risk of seeing the union activist isolated in responsibility for a collective act can lead to a form of self-censorship or renunciation of the very exercise of the union mandate. Ultimately, it weakens employee representation and deprives employees of the collective defence that these representatives are specifically tasked to provide.
When a union has been cautious and thorough, has verified the facts, pointed out uncertainties, and communicated transparently about the usual precautions regarding what was not established, it will be difficult to consider that it has exceeded its rights. Its representatives, acting in the exercise of their mandate to inform, will thus have exercised their freedom of expression without violating their duty of loyalty.
Freedom of association and democracy at work: a reflection of institutional governance
Beyond legislation and case law, the issue of freedom of association reflects a broader vision of democracy at work. It raises questions about how European institutions embody the values they promote.
In my practice, I have often been struck by the contrast between declared principles and actual practices. On the one hand, institutional discourse promotes social dialogue, diversity, and listening; on the other, internal practices quickly perceive criticism as a threat and confine debate to purely formal consultation procedures.
Yet democracy cannot be decreed; it must be lived. It requires a space where union voices are not only tolerated, but recognised as a legitimate part of institutional life. It is no coincidence that the Statute sought to give staff representatives special protection: they do not defend their personal interests, but those of a community. And we will always take care, in all honesty, to remind them of this if necessary.
I like to compare freedom of association to a thermometer: it measures an institution’s ability to accept dissent without perceiving it as an attack on its authority. The democratic vitality of an institution’s functioning can be observed by the way it treats its representatives and the quality of the dialogue it establishes with them.
Disciplinary cases involving trade unionists, which are often publicised or politicised, are a case in point. They show how thin the line is between the legitimate exercise of freedom and its repressive exploitation. Here again, it is up to the judge to draw the line, examine the proportionality of the measures, and assess the good faith of the parties involved. But justice, as essential as it is, should only be a last resort.
For a culture of accountable speech
In a democratic society, freedom of expression is never a given; it must be constantly relearned, protected, and exercised with discipline. In the European civil service, this requirement is all the more important because civil servants embody the Union, its values, but also, and above all, its contradictions.
In this context, trade unionism is not a hostile opposition force; it is part of the power of reflection. It contributes to institutional ethics by questioning practices and ensuring consistency between stated principles and actual attitudes.
At the same time, this mission also entails a responsibility: that of expressing oneself with rigor, distinguishing criticism from discredit, and using speech as a tool for construction. The European judge, through his jurisprudence, says nothing else: he does not restrict freedom of association, he simply reminds us of its nobility.
As a result of this reflection, it appears that freedom of association and freedom of expression are neither privileges nor pretexts: they are instruments of balance. Exercising them requires agents and institutions to be acutely aware of their reciprocal duties.
European texts—from the Statute to the Treaty to the Charter of Fundamental Rights—repeatedly emphasise that the internal democracy of institutions must reflect the democracy they promote externally. This requires openness to dialogue, transparency of procedures, and a genuine capacity for self-criticism.
The role of the union in this scenario is essential: it reminds the administration that it is not a fortress but a human organisation, subject to the law, and that it cannot demand loyalty without offering trust in return.
Loyalty, ultimately, is not obedience. It is a shared commitment to a common mission: that of serving the general European interest. And that interest cannot be served by silence.
We will conclude with these words: in the sometimes heated dialogue between employees and management, there is always one promise: that sincere and responsible communication remains the best defense against arbitrariness. And it is perhaps there, at the heart of this demanding dialectic, that true democracy in the workplace resides.
Maître Nathalie de Montigny
ABOUT THE AUTHOR
Nathalie de Montigny is a specialist in European civil service law. She also advises and assists her clients in economic law. In 2018, she founded her law firm LEXENTIA. She teaches European law to her young colleagues at the Brussels Bar and also organises various conference cycles on national and European law for the benefit of the staff of the European Institutions.