CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 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. 12259/86                       by Oswald DYRWOLD and others                       against Sweden               The European Commission of Human Rights sitting in private on 7 September 1990, the following members being present:                MM.   C. A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. DANELIUS              Sir   Basil HALL              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                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 2 July 1986 by Oswald Dyrwold against Sweden and registered on 4 July 1986 under file No. 12259/86;           Having regard to the written observations submitted by the Government on 19 December 1989 and the applicants' observations of 21 March 1990.           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case           The applicants are   1.       Oswald Dyrwold, a Swedish citizen born in 1941 and resident         in Gothenburg,   2.       Oswald Dyrwolds Bygg & Bil Aktiebolag, a limited liability         company (hereinafter referred to as "the company"),   3.       Fria Företagares SamOrganisation - FFSO (Association of         Independent Businessmen), and   4.       Fria Arbetsgivares Förening - FAF (Association of Independent         Employers).           The applicants are represented by Mr.   Bertil Grennberg, a patent attorney practising in Stockholm.           The company (the second applicant) is owned and run by the first applicant, who is assisted by two employees.           The applicant company is a member of FFSO (the third applicant).   The first applicant is a member of FFSO's consultative committee on building.   He is also a member of FAF (the fourth applicant).           FFSO and FAF are directed by Bengt Zachrisson who, according to the applicants, is regarded as the black sheep in Swedish labour relations; he is not popular with the Swedish Trade Union Confederation (Landsorganisationen, LO) and the Swedish Employers' Confederation (Svenska Arbetsgivareföreningen, SAF) which are the two dominating organisations.           As from 23 February 1981 the company entered into a collective agreement (kollektivavtal) with the Swedish Building Workers' Union (Svenska Byggnadsarbetareförbundet).   The agreement is a so called accessory agreement (hängavtal).   Its first clause refers to the collective agreement in force at any time between the Swedish Building Industries' Federation (Svenska Byggnadsindustriförbundet) and the Swedish Building Workers' Union.   This collective agreement applies as amended in the accessory agreement.           The Building Workers' Union instituted proceedings before the Labour Court (arbetsdomstolen) against the applicant company alleging that the company had violated the provisions on inspection of salary conditions in Section 7 of the accessory agreement and the provisions on settlement of disputes in Section 11 of the collective agreement.   Section 7 of the accessory agreement provided that a local branch of the Building Workers' Union had the right to inspect salary conditions.   The Building Workers' Union alleged that the applicant company had failed to appear at a meeting agreed upon at the company's premises on 11 January 1985 for the inspection of the company's books. Further, the company had failed to appear at a negotiation meeting convened by the local branch for 28 February 1985 and to a central negotiation meeting, convened by the Union for 21 May 1985, in breach of Section 11 of the collective agreement.           By judgment of 15 January 1986 the Labour Court found that the second applicant had violated the provisions of the accessory agreement and the collective agreement as alleged by the Swedish Building Workers' Union and ordered the second applicant to pay to the Workers' Union general damages (allmänt skadestånd) in the amount of 10,000 SEK and to pay legal costs of 14,255 SEK.   In the judgment reference is made to Bengt Zachrisson and his actions when representing the second applicant in the negotiations with the local branch of the Building Workers' Union.           The Court was composed of three professional judges and four lay assessors.   The four lay assessors were:         - Carl-Erik Ewers, Head of Division at the Employers' Federation of Swedish Forest Industries (Sveriges Skogsindustri- förbund), a federation affiliated to SAF.         - Erik Söderbäck, now retired, formerly a director at SAF.         - Bert Lundin, former president of the Swedish Metal Workers' Union (Svenska Metallindustriarbetareförbundet) which is affiliated to LO.         - Hans Billström, the president of the Hotel and Restaurant Workers' Union (Hotell- och Restauranganställdas förbund) affiliated to LO.          These lay assessors had been appointed by the Government after nomination by SAF and LO respectively.   Relevant domestic law           The provisions which regulate proceedings in the Labour Court and the composition of the Labour Court are laid down in the 1974 Litigation in Labour Disputes Act ("the 1974 Act"; lagen om rättegången i arbetstvister).           Labour Court procedures are based on the procedural rules which apply in the ordinary courts to actions amenable to out of court settlements.   The relevant provisions are to be found in the Code of Judicial Procedure (rättegångsbalken).   In view of the type of cases involved and the special conditions under which the Labour Court operates, certain regulations which deviate from the provisions of the Code of Judicial Procedure are included in the 1974 Act.   Thus, the procedural rules under the Code of Judicial Procedure apply, unless the 1974 Act provides otherwise.           The Labour Court is composed of professional judges and of members representing the employers and the employees with individual and equal voting rights for each participating member.   When more than one member of the Court is to examine a case, an equal number of employer representatives and employee representatives participate.           Organisations considered to best represent conditions in the Swedish labour market have the right to propose employer and employee members of the Court.   The decisive factor in this context is not merely the size of the organisation, that is the number of its members, but also its influence on legal developments on the labour market through the negotiation of collective agreements or in other ways.           Employer and employee members of the Court participate in the examination of cases, not as representatives of the parties appearing before the Court, but to provide the Labour Court with expert knowledge of the legal opinions and views which are formed on the labour market at large.           Members of the Labour Court are appointed by the Government for a period of three years.   They have equal status in every respect. Also the members representing special interest groups on the labour market thus swear the judicial oath, in accordance with the Code of Judicial Procedure Chapter 4 Section 11, in the same way as professional judges and lay assessors in the ordinary courts.   Under this oath, they are obliged to render judgment in accordance with existing law, to be independent and impartial and to resist influence by external pressures of any kind.           According to Chapter 11 Section 5 of the Instrument of Government (regeringsformen), permanently appointed judges cannot, in principle, be dismissed.   This rule does not apply to judges in the Labour Court, but they cannot be dismissed during the period for which they are appointed.           The general regulations in Chapter 4 Section 13 of the Code of Judicial Procedure regarding disqualification or challenge due to conflict of interests are applicable also in the Labour Court.   These rules state, for example, that anyone (personally or as a representative of a company, union etc.) who is a party in the dispute, or otherwise concerned in the dispute, or who can expect significant advantage or damage from the outcome of the dispute, must not participate in the examination of a case.   The same applies to someone who is opposed to or on unfriendly terms with a party in the dispute, to someone who has been connected with the dispute in another capacity and to someone who has represented one of the parties.   In addition, there is a general provision regarding conflict of interests, where special circumstances exist which may impair confidence in the member's impartiality.           As applied to the Labour Court, the disqualification or challenge rules mean that a member of the board of an employer or employee association may not participate in a case where the association is one of the parties involved or has intervened in the case.   The rules regarding persons who can expect significant advantage or damage from the outcome of the case or the regulation regarding other special circumstances which may impair confidence in the impartiality of the member, have, in view of the Court's structure, only had a very restrictive application.   For example, in practice, members representing the head organisations or associations/unions of either the employers or the employees participate in cases concerning the interpretation of central agreements which are the results of negotiations where the members themselves have formed part of the central negotiating delegations on either side.   COMPLAINTS   1.       The applicants allege that in view of its composition the Labour Court was not an independent and impartial tribunal as required by Article 6 of the Convention.   The lay assessors, who were affiliated to SAF and LO, were in fact in conflict with the applicants.   Furthermore the party opposing the applicant company was affiliated to LO.           The applicants also complained that, contrary to Article 6, the judgment was not pronounced publicly.   2.       The applicants allege that the facts of the case also involve a violation of Article 11 of the Convention.   3.       The applicants finally invoke Articles 13 and 17 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 2 July 1986 and registered on 4 July 1986.           On 4 September 1989 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application limited to Article 6 of the Convention.           The Government's observations were received by letter dated 19 December 1989 and the applicants' observations were dated 21 March 1990.   THE LAW   1.       In their written observations, the applicants state that they do not pursue their complaint under Article 6 para. 1 (Art. 6-1) of the Convention that the judgment was not pronounced publicly.   In these circumstances and having regard to its decision on admissibility in the Helmers case   (No. 11826/85, Dec. 9.5. 89, to be published in D.R.) the Commission finds no reason to examine this complaint.   2.       The applicants allege violations of Articles 6 (Art. 6) and 11 (Art. 11) of the Convention on the ground that the Labour Court was not an independent and impartial tribunal and the choice of lay assessors from a limited number of employers' and employees' unions involved discrimination against the applicants.   The applicants also invoke Articles 13 (Art. 13) and 17 (Art. 17) of the Convention.           Article 6 para. 1 (Art. 6-1) first sentence of the Convention, insofar as relevant, reads:          " In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           Article 11 (Art. 11) of the Convention, insofar as relevant, reads:   "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..."   3.       The Government do not object to the admissibility of the application under Article 26 (Art. 26) of the Convention.   They submit, however, that the third and fourth applicants cannot be regarded as "victims" within the meaning of Article 25 (Art. 25) of the Convention as they are not affected by the alleged violations. In other respects they submit that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           The applicants state that, as a result of the Labour Court's judgment in this case and in the case of Stallarholmen (No. 12733/88) small employers have been dissuaded from joining the third and fourth applicants which, consequently, have ceased to exist.           The Commission observes that the applicants' complaints are based on the Labour Court's judgment.   Only the second applicant was a party to the proceedings before the Labour Court.   The second applicant is owned and run by the first applicant.   These applicants can therefore claim to be "victims" of the alleged violations within the meaning of Article 25 (Art. 25) of the Convention.           As regards the third and fourth applicants, they were not parties to the proceedings.   It is true that, in the Court's judgment, reference is made to activities of Bengt Zachrisson of FFSO as the representative of the second applicant in the negotiations with the local branch of the Building Workers' Union.   This is however not sufficient for giving the third and fourth applicants the status of "victims" within the meaning of Article 25 (Art. 25) with regard to the alleged violations.   Having regard to the documents submitted and the parties' written observations, the Commission finds that the third and fourth applicants cannot be regarded as "victims" under this provision.           Their complaints must therefore be rejected as being incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.       As to the first and second applicants' complaint that the Labour Court was not an "independent and impartial tribunal", the Commission recalls the following case-law.           When examining whether a specific body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressure and to the question whether the body presents an appearance of independence.   As to the question of impartiality, two tests must be made: a subjective test under which it is sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32).           In the Langborger case (loc. cit.), the Commission and the Court were seized with an issue of a similar nature regarding the Swedish Housing and Tenancy Court (bostadsdomstolen) where the lay assessors had been nominated by the dominating unions on the housing and rent market and where the dispute before the Housing and Tenancy Court concerned the question whether a negotiation clause in the applicant's lease should be retained.   The European Court of Human Rights stated, inter alia, as follows (above-mentioned Langborger judgment, p. 16, paras. 34-35):   "34.     Because of their specialised experience, the lay assessors, who sit on the Housing and Tenancy Court with professional judges, appear in principle to be extremely well qualified to participate in the adjudication of disputes between landlords and tenants and the specific questions which may arise in such disputes.   This does not, however, exclude the possibility that their independence and impartiality may be open to doubt in a particular case.   35.      In the present case there is no reason to doubt the personal impartiality of the lay assessors in the absence of any proof.   As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court notes that they had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause.   As the applicant sought the deletion from the lease of this clause, he could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court's composition in other cases, was liable to be upset when the court came to decide his own claim.   The fact that the Housing and Tenancy Court also included two professional judges, whose independence and impartiality are not in question, makes no difference in this respect."           In the present case, the applicants do not question the personal impartiality of the lay assessors.   In the absence of proof, the Commission finds no reason to doubt the personal impartiality of the lay assessors.           As regards the objective impartiality, the Government submit that the present case can be distinguished from the Langborger case although the Labour Court and the Housing and Tenancy Court have many features in common.   They point out that there is no reason for the applicants to fear that the lay assessors had a common interest opposed to the applicants' interest.   The Government point out that here the dispute concerned the question whether or not the first applicant's company had violated the rules of the accessory agreement concerning the right to inspect salary conditions and the provisions on settlement of disputes by failing to appear at a meeting for the inspection of the company's books and at local and central negotiation meetings.   When examining this issue the Labour Court had to determine a question which primarily was one of evaluating evidence, namely whether the parties had agreed, as maintained by the second applicant, to cancel a meeting on 11 January 1985 which on a previous occasion they had decided to hold.   Neither this question nor the other questions concerned directly involved the lay assessors.   Neither did the two organisations SAF and LO have any specific interest in the outcome of the case.   There was no interpretation to be made of the collective agreement in question which was of a fundamental nature and the outcome of which was of any importance to the organisations represented by the lay assessors.   Furthermore the obligations in question under the collective agreement in principle also follow from Sections 10 and 19 of the 1976 Act on the Joint Regulation of Working Life (lagen om medbestämmande i arbetslivet) which, however, was not invoked by the Swedish Building Workers' Union in the case.   For these reasons, the Government submit that the balance of interests, inherent in the Labour Court's composition, was not upset when the Court came to decide the claim against the first applicant's company.           As to the applicants' argument that they had no representative on the Court, whereas the opposing party had, the Government state that the lay assessors are not to be seen as representatives of the parties in the case but as independent judges in their own capacity. A system where each party in every case would have its own representative on the Court would have an effect, which would be contrary to the one that is aimed at, i.e. the establishment of an impartial tribunal with an inherent balance of different interests. For the same reasons, the fact that there has been a press libel case between Bengt Zachrisson on the one hand and the publisher of the SAF newspaper on the other, is irrelevant for the question of the impartiality of the lay assessors in the case between the Building Workers' Union and the second applicant before the Labour Court.           The applicants submit in reply that the Court was not independent and impartial for the following reasons.           The applicants do not contest in general the composition of the Labour Court in cases where an employer belonging to SAF is involved in a dispute with an employee belonging to LO. However, in the present case the first and second applicants could legitimately fear that their affiliation to FFSO and FAF would be to their detriment.   The dispute before the Labour Court was brought by the Swedish Building Workers' Union who had its interests represented on the Court but the first and second applicants had no corresponding representatives.   In regard to the animosity between FFSO and FAF, on the one hand, and SAF, on the other, the applicants recall that the case was brought before the Labour Court in June 1985 and in October the same year the SAF weekly magazine published an article against FAF.   Eventually the SAF magazine has also used the Labour Court judgment in the present case to dissuade employers from joining FAF by publishing an article where the blame for the second applicant's loss is put on FAF.   There was thus not a proper balance of interests on the Court and the applicants could therefore reasonably fear that the Court was not impartial.   In the present case, SAF and LO had a common interest in getting rid of the newcomer on the labour market and LO had an interest in obtaining the damages claimed whereas SAF had an interest in maintaining its monopoly and in showing to employers that they had no choice but to join SAF.   These common interests make the case similar to the Langborger case.           The Commission considers that, in accordance with the principles developed in the Langborger case, the decisive issue is whether the balance of interests in the composition of the Labour Court was upset and, if so, whether any such lack of balance could make the Court lack the requirements of impartiality and independence in the determination of the particular dispute before the Court.   This could be so either if the lay assessors had a common interest contrary to the applicants or if their interests, although not common, were such that they were nevertheless opposed to those of the applicants.           In this respect the Commission recalls that in the Langborger case the applicant had sought the deletion of a clause from his lease, a clause which had previously been agreed upon between organisations which had close links with the organisations which had nominated the lay assessors sitting in that applicant's case.   The dispute in that case had accordingly a clear link with the interests of the organisations.   Consequently, both sides represented by the lay assessors could be said to have a common interest opposed to the applicant's claim.           In the present case, the dispute before the Labour Court was of a different nature.   It was whether the second applicant had violated certain provisions in the accessory agreement and the collective agreement entered into by the second applicant with the Swedish Building Workers' Union and on that ground was liable to pay damages.   The nature of this dispute is such that none of the organisations, LO or SAF, could objectively have any other interest than to see to it that the agreements which had been concluded were respected and correctly interpreted.   This interest cannot be contrary to that of the applicants.           The Commission notes the applicants' argument that they could fear that the lay assessors nominated by LO would be favourable to the claims made by the Workers' Union whereas the second applicant could not be said to have correspondingly favourable lay assessors on the Court because they were not affiliated to SAF but to FFSO and FAF which were in conflict with SAF.           The Commission is, however, not persuaded by the argument that the conflict between SAF, on the one hand, and FFSO and FAF, on the other hand, would as such imply that the lay assessors nominated by SAF had a common interest with the lay assessors nominated by LO or an interest contrary to those of the first and the second applicants in the determination of the particular dispute before the Labour Court.           To accept the applicants' remaining argument would, in the Commission's opinion, be tantamount to considering that, in cases where the lay assessors have been nominated by LO and SAF, the Labour Court would fail to meet the condition "independent and impartial tribunal" in all disputes where only one of the parties is affiliated to LO or SAF.   Although this issue was not addressed in the Langborger judgment, the Commission considers that it would be contrary to the considerations underlying the statement by the European Court in para. 34 (see quotation above) of the Langborger judgment to accept such a proposition.           In sum, the Commission considers that, contrary to the situation in the Langborger case, there cannot be said to have existed any common interest between the lay assessors in the present case.   The applicants invoke elements which in their view cast some doubt on the independence and impartiality of the lay assessors.   The Commission is nevertheless of the opinion that it cannot be held that the applicants could legitimately fear that the lay assessors had interests contrary to those of the applicants or that the balance of interests was upset to such an extent that they did not satisfy the conditions of independence and impartiality.           Consequently, the Commission finds no indication of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       The applicants' allegation of a violation of Articles 11 (Art. 11) and 17 (Art. 17) of the Convention is largely based on the same grounds as those examined above under Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission finds no indication of a violation of these provisions.   It follows that in this respect the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.       Finally, the applicants allege a violation of Article 13 (Art. 13) of the Convention.           Article 13 (Art. 13) requires a remedy in domestic law only in respect of a claim of a violation which can be regarded as "arguable" (cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).   Having found above that the applicants' claims of violations of the Convention are manifestly ill-founded, the   Commission similarly considers that the these claims cannot be   regarded as "arguable" for the purpose of Article 13 (Art. 13) of the Convention.   Consequently, Article 13 (Art. 13) of the Convention does not entitle the applicants to a remedy in domestic law.           It follows that this part of the application is also 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)