CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 mai 1971

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   I.    Basic facts not in dispute between the Parties   The applicant is an association of Swedish pilots, founded in 1904, for the purpose of safeguarding and forwarding the professional interests of its members. According to the applicant, 84 per cent of all Swedish pilots belong to the association.   It is represented by Mr. Olle Kindblom, a lawyer practising in Stockholm. The application was originally introduced by the intermediary of the European Maritime Pilots' Association. On 18 December 1970, the Commission decided, however, that only the Swedish Pilots' Association - and not the European Association - should be regarded as a party to the case.   In its observations on the admissibility the respondent Government has given a detailed summary of the facts of the case. The applicant has stated in reply that the summary appears to be largely correct. The basic facts set out below have been taken from the Government's observations. As they have not been contested by the applicant and agree with the presentation of facts made in the submissions on behalf of the applicant, they are taken not to be in dispute between the Parties.   1.    As to collective agreements relating to State employees in Sweden in general   The National Collective Bargaining Office, (Statens avtalsverk, hereinafter referred to as SAV) is a public body which, on behalf of the Swedish State, negotiates terms of employment and conditions of work with different categories of State employees. The large majority of Swedish State employees are members of unions or associations which protect their professional interests, as regards salaries and conditions of work. Most of these unions and associations are in their turn affiliated to one of the major labour organisations in Sweden. Consequently, the collective agreement which SAV concludes with these major organisations become binding on the large majority of State employees.   A small number of unions and associations are not, however, affiliated to the major labour organisations and their members are therefore not directly affected by the agreements concluded between SAV and the major organisations. According to Section 4 of the Royal Ordinance of 30 June 1965, regarding certain collective labour agreements concluded by the State etc. a public authority which is bound by a collective agreement shall, however, apply the terms of the agreement also in regard to employees who are not covered by the agreement, provided that they belong to a profession and work within a sector dealt with in the agreement and that no other collective agreement has been concluded in regard to these employees.   2.    As to the facts   During the years 1966 to 1968, the salaries of Swedish State employees and certain other terms of employment were laid down in a general agreement which had been concluded by SAV, on the one hand, and four major labour organisations, on the other. When this agreement was concluded, the applicant association was affiliated to one of these four organisations, namely, the Civil Servants Section of the Swedish Central Organisation of Salaried Employees (Tjänstemännens Centralorganisations statstjänstemannasektion, hereinafter referred to as TCO-S). Consequently, the general agreement was binding on the applicant and its members. On 1 July 1967, the applicant withdrew from TCO-S. Nevertheless, under Swedish law, the general agreement remained binding on the applicant until its expiry.   The general agreement for the years 1966 to 1968 provided that it should automatically be prolonged by one year, unless notice was given before 1 October 1968. The applicant, for its part, gave notice by letter of 23 September 1968. Consequently, the general agreement expired on 31 December 1968, insofar as the relations between the State and the applicant were concerned.   At the end of 1968, the applicant requested a meeting with SAV in order to discuss a temporary prolongation of the general agreement pending the conclusion of a new agreement with SAV. A meeting was held on 30 December 1968. It appears from the minutes of this meeting that SAV was not willing to sign an agreement with the applicant regarding a temporary prolongation of the general agreement. The refusal of SAV to prolong the agreement in regard to the applicant did not mean, however, that the salaries or other benefits which the members of the applicant received were in any way reduced after the expiry of the agreement on 31 December 1968. In fact, SAV had concluded a prolongation agreement with TCO-S, whose membership included a certain number of pilots, and according to the 1965 Ordinance referred to above, the State was bound to apply the same terms of employment to pilots who were members of the applicant. Consequently, the general agreement remained applicable to the members of the applicant as an indirect result of the prolongation agreement with TCO-S despite the fact that no separate prolongations agreement had been concluded with the applicant.   By letter of 13 March 1969 the applicant asked for negotiations with a view of concluding, inter alia, an agreement regarding salaries and a separate agreement regarding working hours. A meeting between SAV and the applicant was held on 10 April   1969. From the minutes of this meeting it appears that, with one exception, SAV was only willing to enter into collective agreements with the major labour organisations. The minutes show that SAV communicated to the applicant certain proposals regarding salaries in 1969 and 1970 which it had submitted to the major labour organisations, including TCO-S. The applicant was thereby given the opportunity of stating its views on these proposals which also concerned the salaries of the pilots. The representative of SAV gave some oral explanations in regard to the proposals and undertook to keep the applicant informed of the development of SAV's negotiations with the major organisations. They also declared their willingness to discuss with the applicant the terms of employment of pilots, although SAV did not intend to conclude a separate agreement with the applicant. As explained above an agreement with SAV and TCO-S would, however, be applicable also to members of the applicant, if no agreement had been concluded with that organisation. It further appears from the minutes of the meeting on 10 April 1969 that SAV intended to submit a proposal for a working hours agreement.   Later on the same day, i.e. 10 April 1969, the applicant informed SAV that it did not intend to pursue the negotiations and gave notice of its intention to proclaim a strike and a blockade as from 16 April 1969.   On 18 April 1969 the King-in-Council appointed a conciliator to mediate between the parties. Meeting were held before the conciliator on 19, 24 and 29 April 1969. On 19 April 1969 SAV submitted to the conciliator a proposal which it had already presented to the major labour organisations. SAV indicated that this proposal also concerned the salaries which would apply to members of the applicant but maintained at the same time its refusal to conclude a separate agreement with the applicant. The conciliator subsequently informed SAV that the applicant insisted on a formal agreement with SAV and did not wish to comment on the substance of the SAV proposal. On 29 April 1969 the applicant declared that the negotiations before the conciliator were terminated and that the strike and the blockade which had been postponed pending these negotiations would be put into effect on 30 April 1969. On 5 May 1969, SAV retaliated by proclaiming a lockout of members of the applicant as from 13 May 1969.   On 13 May 1969 the applicant instituted proceedings against SAV before the Labour Court (arbetsdomstolen)   In these proceedings, the applicant alleged that SAV had violated Section 4 of the 1936 Act regarding the right to organise and to negotiate. This Section guarantees the right to negotiate which is defined as the right to demand negotiations regarding the terms of employment or other relations between employers and employees. Holders of this right are, on the one hand, any employer or association of employers and, on the other hand, any union of employees. If one party has the right to negotiate, the other party is obliged to enter into negotiations.   In its judgment which was given on 22 May 1969, the Labour Court pointed out that the obligation to negotiate could not be construed as imposing on any of the parties an obligation to arrive at an agreement with the other party. In fact, SAV and the applicant were agreed on this point.   The Court further stated that if one party declares in the beginning of the negotiations that he does not wish to conclude a collective agreement with the other party, this is not in itself a violation of his obligation to negotiate. Such a declaration does not, however, "relieve the party concerned of the obligation to discuss, at the request of the other party, both the form in which a settlement of the points at issue would be effected and the substantive questions regarding the terms of employment of the employees concerned". On this basis and after examining the facts of the case, the Court concluded that SAV had not violated its obligation to negotiate with the applicant.   The strike and the lockout continued until 24 May 1969. In May and June 1969, the conciliator held some further meeting with the parties who both adhered to the positions they had taken previously. No settlement could therefore be achieved, and at the last meeting which was held on 26 June 1969 the conciliator concluded that in view of the attitudes taken by the parties his mission had been completed.   On 12 July 1969, a new general agreement for the years 1969 to 1970 was concluded by SAV and TCO-S. For the reasons set out above, the terms of this agreement became applicable also to the members of the applicant.   On 1 March 1970, the applicant joined one of the major labour organisations, namely, the Swedish Confederation of Professional Associations (Sveriges Akademikers Centralorganisation, hereinafter referred to as SACO). Consequently, from this date the agreement in force between SAV and SACO which contained rules concerning the terms of employment of pilots, was binding on the applicant's members. II.   The applicant's complaints   The applicant alleges a violation of Article 11 of the Convention. The specific complaints made on behalf of the applicant in the original submissions may be summarised as follows:   (a)   The applicant claims that the pilots have been denied their rights under Swedish law. By making it clear already at the outset of the negotiations that SAV did not intend to conclude an agreement with the applicant, SAV acted contrary both to the letter and the spirit of Swedish law.   (b)   It is further submitted that SAV ignored the obligation placed upon the State by the Labour Court. The applicant contends that, encourage by the findings in the judgment of the Court, it instigated further negotiations before the conciliator requesting that they should be positive in intent and designed to determine new conditions of employment for the pilots. SAV persisted, however, in its uncompromising attitude towards the applicant.   (c)   The applicant complains that it was the deliberate policy of SAV to suppress or destroy the applicant as an effective organisation representing the Swedish pilots by forcing them to join an organisation of the State's own choosing. In this connection, the applicant alleges that the Director of SAV publicly states that SAV was determined to carry its refusal to enter into collective agreements with organisations, such as the applicant, to such a point that they would be forced to join a major labour organisation out of a sense of frustration.   III. Submissions of the Parties   1.    As to the facts   The respondent Government firmly contests the allegations that the Swedish pilots have been denied their rights under Swedish law and that the obligations placed upon the State by the Labour Court were ignored by the SAV. It also refutes, as being equally unjustified, the assertion that the attitude adopted by SAV at the negotiations was contrary to the spirit and the letter of Swedish law. In this respect the Government refers to the judgment of the Labour Court which precisely contains the conclusion that SAV had not failed in its obligations under Swedish law. The subsequent events cannot in any way justify a different conclusion.   The Government also contests the allegation that the policy pursued by SAV was aimed at suppressing or destroying the applicant as an effective organisation by forcing it to join a major labour organisation. It is submitted that, in establishing its general policy, SAV started from the idea that it was not obliged to conclude a collective agreement with any organisation. SAV was therefore free to determine whether it should only conclude collective agreements with major organisations or whether it should also be prepared to sign agreements with other organisations representing special groups of employees. When preferring, in principle, the firs alternative, SAV wished to discourage a further disintegration of the unions representing State employees. Such disintegration would entail risk of strikes and of other separate action by small groups of employees wishing to enforce their special claims. The policy which SAV adopted was therefore aimed at securing stability and maintaining peaceful relations on the labour market. It was in no way directed only against the applicant, since SAV has been equally reluctant to pass collective agreements with nearly all other unions which were not affiliated to the major labour organisations.   As regards the public statement allegedly made by the Director of SAV the Government has been unable to identify it and is not prepared to confirm that the Director expressed himself in the terms indicated by the applicant.   In its observations in reply the applicant has adhered to its original allegations.   Referring to the Act of   1936, regarding the right to organise and to negotiate, the applicant states that the Act, while imposing an obligation to negotiate, does not provide for any right to obtain a collective agreement with the other party, this does not mean that it has neglected its duty to negotiate. On the other hand, the Court held that such a declaration does not relieve the party concerned of the obligation to discuss, at the request of the other party, both the form in which a settlement of the points at issue could be effected and the substantive questions regarding the terms of employment. In the applicant's submission, the only form of agreement between employer and employee recognised by Swedish law, is in fact a collective agreement. As regards the duty to negotiate on terms of employment, this is exactly what the applicant asked for but did not obtain. According to the applicant, it has not proved possible to get any explanation of this contradictory statement since the Labour Court has exclusive jurisdiction and no appeal lies against its decisions.   The applicant claims that SAV has refused the applicant its lawful right to negotiate. This could have been avoided if SAV from the outset had made it clear to the applicant that it could not expect any other collective agreement that signed with TCO-S. In Swedish labour law such an agreement is called an "accessory agreement". Despite the fact that their attention had been drawn to this, SAV also refused to make such an agreement with the applicant.   2.    Arguments as to the admissibility   (a) As to whether the applicant has complied with the six months' rule   The respondent Government has submitted as follows:   In its application, the applicant alleges that SAV violated its right to freedom of association as guaranteed by Article 11 of the Convention. In the applicant's submission, this violation consisted of the refusal of SAV to conduct negotiations with a view to concluding an agreement with the applicant. While alleging that this refusal also contravened the Swedish Act regarding the right to organise and to negotiate, the applicant first introduced proceedings before the Labour Court which rendered its judgment on 22 May 1969. There was no appeal from this judgment, nor was there under Swedish law any other domestic remedy in respect of this complaint. Consequently, the judgment of the Labour Court is the final decision within the meaning of Article 26 of the Convention. The present application, however, was not lodged with the Commission until 17 February 1970, i.e. more than six months after the date of the final domestic decision. The application is therefore inadmissible according to Article 27 (3) of the Convention.   The applicant submits that the Government's objection in this respect should be disregarded. As already stated no appeal can be lodged against decisions by the Labour Court. When judgment had been given, the applicant addressed itself to Mr. Tage Erlander, the Swedish Prime Minister at that time, and the Chairman of the Association requested a meeting with him in the autumn of 1969. The applicant was therefore trying to obtain redress from the Swedish Government for the way it had been treated. Mr. Erlander was unable to meet the Chairman and this led to the latter writing again in March 1970. In the applicant's opinion, the six months' should apply from the date that all possibility of redress had been exhausted and this had not in fact been the case until the Prime Minister's reply was received in April 1970.   (b)   As to whether the application is manifestly ill-founded   The respondent Government submits that, if the Commission should not declare the application inadmissible on the ground invoked under (a), it is important to consider whether the acts complained of could possibly constitute a violation of Article 11 of the Convention.   As to the substance of the allegations made by the applicant (see II above) the Government states that, although SAV declared its intention not to conclude an agreement with the applicant, it was quite prepared to discuss with the applicant the salaries and other terms of employment which were to apply to pilots during 1969-70. These terms were to be included in an agreement between SAV and TCO-S and would therefore apply also in regard to the members of the applicant. The Government further recalls that it contests the applicant's allegation that the aim of SAV was to force the applicant to join a major organisation.   Referring to the terms of Article 11 of the Convention, the Government submits that in the present case, only the freedom of association is at issue, and it is necessary to consider the meaning and scope of the term "freedom of association".   Some clarification is provided by Article 11 itself, which indicates that the right to form and to join trade unions is included in the concept of "freedom of association". It is clear that the right to form and to join trade unions has not been violated in the present case. The pilots have not been denied the right to form or to join the applicant and the applicant has been free, in its turn, to join first TCO-S and later SACO.   However, the wording of Article 11 indicates that freedom of association also includes other elements that the right to form and to join trade unions. The travaux préparatoires of the Convention show that the provisions of Article 11 were in substance taken from Articles 20 and 23 (4) of the Universal Declaration of Human Rights. It should be observed, however, that the Convention contains no provision corresponding to Article 20 (2) of the Universal Declaration which provides that no one may be compelled to belong to an association. It appears from the travaux préparatoires that this provision was omitted on account of the difficulties that it would create in certain countries. It may be interesting to notice this omission in the present case, where it is suggested that an attempt has been made to compel the applicant to join a major organisation. Nevertheless, the Government does not wish to draw any definite conclusions on this point, in particular, since the Commission has already stated in a recent decision that the notion of "freedom of association" also implies freedom not to join a trade union (Application No. 4072/68, Collection of Decisions, Vol. 32, p. 86).   For the purpose of defining the concept of "freedom of association" it is important to study the 1948 ILO Convention concerning freedom of association and protection of the right to organise. This Convention sets out in some detail the different elements which are inherent in the freedom of association, and the Government considers that these elements should also be taken into account for the purpose of interpreting Article 11 of the European Convention. According to the ILO Convention, the freedom of association includes in particular the following rights. Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorization (Article 2). Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representative in full freedom, to organise their administration and activities and to refrain from any interference which would restrict this right to impede the lawful exercise thereof (Article 3). Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority (Article 4). Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisations, federation or confederation shall have the right to affiliate with international organisations of workers and employers (Article 5).   Reference should also be made to certain other international agreements which have been concluded after the European Convention and contain provisions about the freedom of association.   One of these agreements is the European Social Charter. It is true that this Charter does not expressly refer to " the freedom of association", but the terms used are "the right to organise" (Article 6). It is required that national law shall not be such as to impair, nor shall it be so applied as to impair, the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations (Article 5). Moreover, the Contracting Parties shall promote joint consultation between workers and employers and, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. They shall also promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes and recognise the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into (Article 6).   Certain provisions which are relevant to the point at issue in this case are to be found in the two International Covenants on Human Rights. The International Covenant on Economic, Social and Cultural Rights guarantees the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests, as well as the right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade union organisations. It also protects the right to form and join trade unions for the protection of his interests (Article 22).   The general conclusion that can be drawn from these different international instruments seems, in the Government's submission, to be that the purpose of the international rules concerning the freedom of association is to guarantee that the activities of trade unions and employers' organisations are not impeded by legislative, administrative or other measures taken by the State in the exercise of its public functions. These rules do not however, affect the relations between the parties on the labour market. They do not impose on employers or employers' organisations any obligations towards the unions, nor do they create any obligations for the trade unions or to conclude agreements with them   It is true that Swedish law provides for a right to negotiate, but when doing so, Swedish law gives employees, employers and their organisations more extensive rights than can be derived from the European Convention or indeed from any of the international agreements referred to here.   When negotiating and concluding collective agreements with organisations representing its employees, the State does not exercise public functions. In fact, the legal relations between the State and the labour organisations are, insofar as such negotiations and agreements are concerned, the same as those which exist between any other employer and the trade unions. It has already been stated that the European Convention does not affect the relations between the parties on the labour market, and this statement must obviously be valid even when one of these parties is the State.   The conclusions is therefore, in the present case, that the State was free to conclude or not conclude an agreement with the applicant, and it was not even obliged, under the Convention, to enter into negotiations with the applicant. The obligation to negotiate did not result from the Convention but from the Swedish national law, and although it is not directly relevant in the present case, it is recalled that the Labour Court considered SAV to have complied also with this obligation.   It follows in the opinion of the respondent Government, that the acts complained of cannot possibly have constituted a violation of the right to freedom of association as guaranteed by Article 11 of the Convention. In fact, the allegations made by the applicant are based on a very extensive interpretation of the concept of "freedom of association" which is inconsistent both with the sense given to this concept in other international instruments and with the cautious and rather restrictive interpretation which the Commission has previously adopted in regard to Article 11 (see application NO. 1028/61, Collection of Decisions, Vol. 6, p. 77, where it was held that the right to participate in the administration or the management of an association is not included in the concept of "freedom of association").   On these grounds, the Government is of the opinion that the application is also inadmissible as manifestly ill-founded within the meaning of Article 27, paragraph (2), of the Convention.   In its observations in reply the applicant maintains that the attitude adopted by SAV towards it amounts to a violation of Article 11 of the Convention. The applicant emphasises that all different categories of State employees in Sweden have only one employer - the Swedish State for which SAV negotiates. It is no understatement to say that SAV acts on the Government's instructions although it claims to be a totally independent office. The situation on the Swedish private labour market is, in the applicant's opinion, entirely different. Although the Swedish Employers' Confederation (Svenska Arbetsgivareföreningen) acts on behalf of the private employers, these cannot influence the activities of the Confederation to the same extent as the Government influences SAV. These facts should be borne in mind when considering SAV's treatment of the applicant.   The applicant has not directly commented on the interpretation of the concept of "freedom of association" within the meaning of Article 11 of the Convention.   THE LAW   The applicant has alleged that the refusal of the National Collective Bargaining Office (SAV) to conduct negotiations with the applicant with a view of concluding a collective agreement violated Article 11 (Art. 11) of the Convention which guarantees the right to "freedom of association with others, including the right to form and to join trade unions for the protection of his interests". The applicant has also complained that this refusal was inconsistent with the relevant provisions of the Swedish Act of 1936 regarding the right to organise and to negotiate and that the policy adopted by SAV in this respect was intended to suppress or destroy the applicant as an effective organisation representing the Swedish pilots by forcing them to join a major labour organisation.   The respondent Government has first submitted that the application should be rejected as inadmissible under Article 25 (Art. 25) of the Convention on the ground that it was lodged with the Commission more than six months after the judgment of the Labour Court of 22 May 1969, this being the "final decision" within the meaning of Article 26 (Art. 26). In this connection, the Government has emphasised that the applicant's allegation that the refusal of SAV contravened the 1936 Act formed the basis of the proceedings before the Labour Court.   In the alternative, the respondent Government - which also contested the allegations that the aim of SAV was to force the applicant to join a major labour organisation and that the applicant has been denied its rights under Swedish law - has submitted that the application is manifestly ill-founded as the acts complained of could not possibly have constituted a violation of the right to freedom of association as guaranteed by Article 11 (Art. 11) of the Convention. In this connection, the Government has referred to certain other international agreements which contain provisions regarding freedom of association. In the Government's submission the State was, in the present case, free to conclude, or not to conclude, an agreement with the applicant and in this connection it was not even obliged, under the Convention, to enter into negotiations with the applicant. Although under Swedish law there was an obligation to negotiate, the Labour Court considered SAV to have complied with that obligation.   Having carried out a preliminary examination of the application in the light of the information and arguments presented by the Parties, the Commission finds that it raises complex and important issues of facts and law, in particular, regarding the interpretation of the concept of "freedom of association" in Article 11 (Art. 11) of the Convention in relation to trade unions. The Commission considers that the determination of these issues should depend on an examination of the merits of the case. The application, cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   However, the Commission has also had regard to the respondent Government's submission that the Labour Court's decision of 22 May 1969 was the final decision within the meaning of Article 26 (Art. 26) and that the present application which was lodged on 17 February 1970, has thus not conformed with the six months' rule laid down in Article 26 (Art. 26). The Commission considers that the determination of this issue is closely linked with the previous question of the scope of the provisions of Article 11 (Art. 11) regarding the freedom of association in relation to trade unions. In particular, the question whether the Labour Court's decision is the final decision within the meaning of Article 26 (Art. 26) depends upon the question whether the Labour Court was, in the circumstances, competent to correct the violation of the Convention now alleged by the applicant. This again depends upon the question whether Swedish law and in particular the 1936 Act, which bound the Labour Court, were in conformity with Article 11 (Art. 11) of the Convention. This question involves a study of Swedish law and an interpretation of Article 11 (Art. 11) and is obviously closely linked to this substantial issue whose determination by the Commission will depend upon an examination of the merits of the case. The applicant has also alleged that, even after the Labour Court's decision SAV persisted in its refusal to negotiate with a view to conclude a collective agreement and the Commission considers that this may raise a question of a continuing violation which again may effect the significance of the Labour Court's decision in relation to Article 26 (Art. 26). In these circumstances the Commission finds that the issue under Article 26 (Art. 26) should be joined to the merits.   For these reasons, the Commission   DECLARES ADMISSIBLE THE APPLICATION AND JOINS TO THE MERITS THE QUESTION OF THE SIX MONTHS' RULE UNDER ARTICLE 26 (Art. 26) OF THE CONVENTION