CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 13537/88                       by Jerry JOHANSSON                       against Sweden             The European Commission of Human Rights sitting in private on 7 May 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 5 November 1987 by Jerry JOHANSSON against Sweden and registered on 15 January 1988 under file No. 13537/88;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant is a Swedish citizen born in 1930 and resident at Valbo.   He is represented by Göran Ravnsborg, a lecturer at the University of Lund.           The applicant is by profession an electrician and has been for many years a member of the Swedish Electricians Trade Union (Svenska Elektrikerförbundet).   In 1981, the Trade Union Congress (förbundskongressen) of the Electricians Trade Union recommended the Board of the Union (förbundsstyrelsen) to start negotiations with the Folksam Insurance company in order to organise a collective home insurance for all the members of the Union.           On 20 September 1982, the Board of the Union recommended the Council of the Union (förbundsrådet) to enter into an agreement with Folksam for a collective home insurance.           On 23 November 1982, the Council of the Union decided to accept the agreement not only on behalf of the Union but on behalf of all the Union's individual members.           The agreement between the Union and Folksam came into effect on 1 January 1983 and imposed a compulsory collective home insurance on the members of the Union.   There were no provisions for a member to opt out.   The Union was to pay 160 SEK per annum for each member. The cost for the collective home insurance is funded partly from Union funds and partly from an increase in membership fees. It appears that of the 30 branches of the Union, 5 decided to increase members' fees from 1,2 per cent to 1,3 per cent of the member's salary.           The collective insurance scheme had met strong opposition from a number of Union members, who considered the scheme interfered with an individual's sphere of private life and deprived him of the power to decide for himself.   The applicant, with other Union members, took proceedings against the Union before the Stockholm District Court (tingsrätt) in order to obtain a declaration that the collective insurance scheme, and the decisions on which it was based, were invalid.   The applicant argued that the Union's decision to agree to a compulsory collective home insurance fell outside the objects of the Union as provided for in the Union's regulations.           The District Court found in favour of the applicant in its judgment of 17 January 1985.   The Court found inter alia:           "...   However, the opinion of the District Court is that         the home insurance cannot be considered to have such a         link to the Union members in their capacity as employees         that it falls within the scope of the objects of the Union         as those are defined in the private regulations of the Union.         For those reasons the Board of the Union and the Council of         the Union, which organs must be considered to have acted         in accordance with mandate from the Trade Union Congress in         this connection, have not had the power to decide on the         home insurance.   Those Union decisions shall for that         reason ... be declared void."           The Union appealed to the Svea Court of Appeal (Svea hovrätt) on 5 February 1985.   In its judgment of 6 December 1985, the Court of Appeal rejected the Union's appeal.           The Union appealed to the Supreme Court (högsta domstolen), which delivered judgment on 6 May 1987.   The Supreme Court found inter alia that it was clear that the home insurance fell within the general objects of the Trade Union Movement to promote the increase of its members' financial standard.   But it was doubtful whether it fell within the scope of Section 1 of the Union's regulations which provided that its task was to secure its members' interests in the labour market and in the general economy and in that context and otherwise contribute to a development of society on the basis of democratic socialism.   The Supreme Court nevertheless concluded that the Union decisions as to home insurance could not be regarded as concerning aims obviously alien to the objects of the Union and therefore void.   There was also no other ground on which the decisions could be considered to be void.   COMPLAINTS           The applicant complains of the decision of the Supreme Court empowering the Union to bind individual members in a collective insurance scheme.   He submits that the Court erred in its interpretation of the membership agreement between the Union and its members, in particular in not applying the principle of objective interpretation and the principle that a party to an agreement is not bound by anything which does not directly appear from the wording of the agreement.   He submits that the decision constitutes a serious violation of his freedom of association, in both the negative and positive sense, contrary to Article 11 of the Convention.   He considers that the insurance has no connection with his status as employee or trade union member and is an entirely private matter with which no other party should interfere.   He argues that he has thereby been deprived of his right to manage his own affairs.   He has also been compelled to become a policy holder in Folksam.   He invokes Articles 3, 8 and 17 of the Convention and Article 1 of Protocol No. 1 to the Convention.           The applicant also submits that the decision of the Supreme Court cannot be accepted as the outcome of a fair hearing by an impartial tribunal.   He accordingly complains of a violation of Article 6 para. 1 of the Convention.           The applicant also submits that there is no effective remedy against the Supreme Court's alleged violations of the applicant's rights.   He invokes Article 13 of the Convention in this respect.   THE LAW   1.       The applicant has complained that the Supreme Court has upheld the decision of his Union to impose a scheme of collective insurance on its members.   He complains that this constitutes a violation of Article 11 (Art. 11) of the Convention, which provides:           "1.      Everyone has the right to freedom of peaceful assembly                 and to freedom of association with others, including                 the right to form and join trade unions for the                 protection of his interests.           2.       No restrictions shall be placed on the exercise of                 these rights other than such as are prescribed by law                 and are necessary in a democratic society in the                 interests of national security or public safety, for                 the prevention of disorder or crime, for the                 protection of health or morals or for the protection                 of the rights and freedoms of others.   This Article                 shall not prevent the imposition of lawful                 restrictions on the exercise of these rights by                 members of the armed forces, of the police or of the                 administration of State."           The Commission recalls that right to freedom of association protects primarily against State interference.   The question which arises in the present case concerns the extent to which Article 11 (Art. 11) obliges the State to protect a trade union member against measures taken by his union.           In the Commission's view the right to form trade unions involves, for example, the right of trade unions to draw up their own rules and to administer their own affairs.   Such trade union rights are explicitly recognised in Articles 3 and 5 of I.L.O. Convention No. 87 which have been taken into account by the Commission in previous cases (see e.g.   No. 10550/83, Dec. 13.5.85, D.R. 42, p. 178).           Nonetheless for the right to join a union to be effective the State must protect the individual against any abuse of a dominant position by trade unions (see Eur.   Court H.R., Young, James and Webster judgment of 13 August 1981, Series A. No. 44, p. 25, para. 63). Such abuse might occur, for example, where exclusion or expulsion from a trade union was not in accordance with union rules or where the rules were wholly unreasonable or arbitrary or where the consequences of exclusion or expulsion resulted in exceptional hardship.           The Commission recalls that the present case concerns the applicant's dispute as to the validity of the collective home insurance scheme entered into by his Union.   The Commission notes that the Supreme Court found that the Union's decision to affiliate its members to the collective insurance scheme fell within the scope of the Union's legal competence under its regulations and that it was accordingly valid.   The Commission finds no indication that the decision of the Supreme Court was unreasonable or arbitrary or that the applicant's affiliation to the collective insurance scheme resulted in such an abuse of a dominant position that his right to freedom of association under Article 11 (Art. 11) of the Convention can be said to have been violated by the respondent Government.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also complained that the decision constitutes a violation of Articles 3, 8 and 17 (Art. 3, 8, 17) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.           The Commission has examined these complaints as they have been submitted by the applicant.   The Commission observes that when the applicant became a member of the trade union, he thereby entered into a private agreement with the trade union, which, inter alia, implied that he accepted the regulations of the trade union.   The applicant was able to challenge the validity of the insurance scheme before the courts, which at the final instance found that the scheme was valid and within the competence of the Union.   The Commission also notes that the resulting increase, if any, in the applicant's membership fees was in the order of 0,1 per cent of his salary.   The Commission finds, in these circumstances, that the applicant's complaints do not disclose any appearance of a violation of the rights and freedoms invoked by him.           It follows that these complaints are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has also complained that he did not have a fair hearing before the Supreme Court contrary to Article 6 (Art. 6) of the Convention.           The Commission considers that the fact that the Supreme Court reached a decision, with which the applicant strongly disagreed, is not sufficient to substantiate a complaint of not receiving a fair hearing contrary to Article 6 para. 1 (Art. 6-1) of the Convention.   The applicant has put forward no other complaint or mentioned any procedural irregularity which could have impinged on the fairness of the hearing.           In these circumstances, the Commission finds that the complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant has lastly complained that he has no effective remedy against the Supreme Court's decision contrary to Article 13 (Art. 13) of the Convention.           The Commission notes that the applicant complains of the Supreme Court which is the highest judicial authority in the Swedish legal system.   In such circumstances, the application of Article 13 (Art. 13) is subject to an implied limitation (see e.g. No. 8603/79 and others, Dec. 18.12.80, D.R. 22 p. 147 at p. 224) and cannot be interpreted as guaranteeing a further remedy.   Consequently, this complaint must also   be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.          Secretary to the Commission         President of the Commission                 (H.C. KRÜGER)                      (C.A. NØRGAARD)