CEDH · CASELAW;DECISIONS;ADMISSIBILITY;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. 12733/87                       by Stallarholmens Plåtslageri o Ventilation                       Handelsbolag 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 4 January 1987 by Stallarholmens Plåtslageri o Ventilation Handelsbolag and others against Sweden and registered on 5 February 1987 under file No. 12733/87.           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, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case           The applicants are Stallarholmens Plåtslageri o Ventilation Handelsbolag, a company with its seat at Stallarholmen, and the owners of the company: Lars-Fredrik Forsbäck, born in 1949, and his wife Barbro Forsbäck, born in 1949, both resident at Stallarholmen.   The applicants are represented by Mr.   Bertil Grennberg, a patent attorney practising in Stockholm.           The applicant company is a member of FFSO (Fria Företagares SamOrganisation, Association of Independent Businessmen), an organisation of small employers.           On 30 March 1982 the applicant company (hereinafter referred to as "the company") signed an accessory agreement (hängavtal) with the Swedish Sheet Metal Workers' Union (Svenska Bleck- och Plåtslagare- förbundet).   The agreement contains, inter alia, a section according to which the company was bound, unless otherwise provided in the accessory agreement, to apply the collective agreement applicable at any time between the Employers' Association of the Swedish Plateworks (Plåtslageriernas Riksförbund) and the Swedish Sheet Metal Workers' Union.           The Swedish Sheet Metal Workers' Union instituted proceedings against the applicant company before the Labour Court (arbetsdomstolen) and claimed that the company had violated the agreements.   The Union claimed that the company was obliged to pay holiday salary (semesterlön) to their employees and that the company had violated its duty to negotiate.   The Union claimed that the company should pay holiday salary in the amount of 41,252 SEK and general damages for violation of the collective agreement in the amount of 20,000 SEK.           Before the Labour Court the applicants objected to the participation of a lay assessor from the Swedish Employers' Confederation (Svenska Arbetsgivareföreningen, SAF).   They submitted that the claimant (the Union) had wrongly stressed that the company belonged to FFSO; it was well-known that the relations between FFSO and SAF were not good.   The applicants invoked Article 6 para. 1 of the Convention.   By decision of 22 May 1986 the Labour Court rejected this challenge on the ground that there were no circumstances which would appear to upset the impartiality of the lay assessors.           By a judgment of 20 August 1986 the Labour Court found that the company had violated the collective agreement by refusing to negotiate and by failing to pay holiday salaries and certain fees under the collective agreement.   The Labour Court ordered that the company pay to the Union 18,729 SEK as regards holiday salaries and collective agreement fees and general damages in the amount of 20,000 SEK. The company was also ordered to pay legal costs in the amount of 14,662 SEK.           The Labour Court was composed of one professional judge and two lay assessors.   The latter were Sten Wassberg, who was employed by SAF, and Bert Lundin, who is the former president of the Swedish Metal Workers' Union (Svenska Metallindustriarbetareförbundet), which, like the Swedish Sheet Metal Workers' Union, is an organisation affiliated to the Swedish Trade Union Confederation (Landsorganisationen, LO) of which Bert Lundin was a Bureau member.           The 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 Curt 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 anyone who is opposed to or on unfriendly terms with a party in the dispute, to anyone who has been connected with the dispute in another capacity and to anyone 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 the Labour Court was not "independent and impartial" as required by Article 6 para. 1 of the Convention.           They also allege a violation of Article 6 on the ground that the judgment was not pronounced publicly.   2.       The applicants allege that they are persecuted because they are affiliated to FFSO. The Labour Court which settles the disputes is composed of members hostile to FFSO. SAF tries to stop FFSO. The applicants allege a violation of Article 11 in conjunction with Article 17 of the Convention.   3.       The applicants submit that the facts also constitute a violation of Articles 13 and 14 of the Convention.   4.       Finally, the applicants allege that the judgment of the Labour Court involves a violation of the right to peaceful enjoyment of possessions protected by Article 1 of Protocol No. 1 to the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 4 January 1987 and registered on 5 February 1987.           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), 14 (Art. 14) and 17 (Art. 17) of the Convention as well as Article 1 of Protocol No. 1 (P1-1) to the Convention.          The Government make no objection against the admissibility of the application under Article 26 (Art. 26) of the Convention.   They submit, however, that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       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."          As to the 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 is different from the Langborger case.   They consider 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 applicant company had violated the rules of the accessory agreement by not paying holiday salary and certain fees according to the collective agreement and also whether the company had violated its duty to negotiate with the trade union.   When examining this issue the Labour Court had to determine a question which primarily was one of evaluating evidence.   This question did not directly involve 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 of a principal character to be made of the collective agreement in question, the outcome of which was of any importance to the organisations represented by the lay assessors.   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 company.   The mere fact that the lay assessors are or have been active in SAF or LO is not sufficient to consider them to lack impartiality and independence.           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 Swedish Sheet Metal Workers' Union and the company before the Labour Court.           The applicants submit in reply that the Court was not independent and impartial for the following reasons.   On the basis of the reasoning of the European Court in the Langborger case, it is sufficient for the applicants to show that they had doubts as to the independence and impartiality of the Court and that these doubts were reasonable.   The existence of doubt is already clearly shown by the applicants' challenge of the lay assessors before the Labour Court.           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 applicants could legitimately fear that their affiliation to FFSO and FAF (Fria Arbetsgivares Förening, Association of Independent Employers) would be to their detriment.   The dispute before the Labour Court was brought by the Swedish Sheet Metal Workers' Union which had its interests represented on the Court but the 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 in October 1985 the SAF weekly magazine published an article against 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 of getting rid of the newcomer on the labour market and LO had an interest of obtaining the damages claimed whereas SAF had an interest of maintaining its monopoly and of 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 those of 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 company had violated the collective agreement by failing to pay holiday salaries and certain fees under the agreement and by failing to negotiate, 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 applicants argue that they could fear that the lay assessors nominated by LO would be favourable to the claims made by the Workers' Union whereas the applicants 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 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 applicants could not be said to have a correspondingly favourable lay assessor 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 assessor nominated by SAF had a common interest with the lay assessor nominated by LO or an interest contrary to those of the 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 Europan 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.           The Commission finds no other 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.   4.       The applicants' allegation of a violation of Articles 11 (Art. 11), 14 (Art. 14) 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.   5.       The Commission finds that the complaint based on Article 1 of Protocol No. 1 (P1-1) of the Convention 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)