CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 avril 1994

.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. 15533/89                     by Annika ENGLUND and Others                     against Sweden            The European Commission of Human Rights sitting in private on 8 April 1994, the following members being present:               MM.   C.A. NØRGAARD, President                S. TRECHSEL                F. ERMACORA                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS           Mrs. G.H. THUNE           Mr.   C.L. ROZAKIS           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                E. KONSTANTINOV             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 1 July 1989 by Annika ENGLUND and others against Sweden and registered on 20 September 1989 under file No. 15533/89;        Having regard to :        -     reports provided for in Rule 47 of the Rules of Procedure       of the Commission;        -     the observations submitted by the respondent Government on    1 April 1993 and the observations in reply submitted      by the applicants on 28 June 1993;        -     the parties' oral submissions at the hearing on 8 April      1994;        Having deliberated;        Decides as follows: THE FACTS        The applicants are Ms. Annika Englund, a hairdresser, born in 1967 and residing at Tingstäde, Ms. Åsa Englund, a veterinary assistant, born in 1964 and residing at Umeå, Ms. Nina Gynning, born in 1971 and residing at Lärbro, Ms. Karin Mårs, a tailor, born in 1966 and residing at Slite.   They are all Swedish citizens.   Before the Commission they are represented by Mr. Göran Ravnsborg, Assistant Professor of Law at the University of Lund.        The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case        As from the summer of 1987 up to and including the summer of 1990 the applicants were unorganised employees at an establishment comprising the summer restaurant "Ihrebaden" at Ihreviken, Tingstäde, and the youth hostel "Lummelunda" at Nyhamn, Visby, both on the island of Gotland. The establishment was owned by an unorganised employer (the applicant in Application No. 15573/89) and had less than ten employees all of whom were employed in the restaurant. The employees were hired on a seasonal basis, but they had the option of being re- employed.        The applicants' employer was not a member of any association of restaurant employers and was therefore not bound by any collective labour agreement (kollektivavtal) which such an association had signed with the Hotel and Restaurant Workers' Union (Hotell- och Restaurang-anställdas Förbund; hereinafter "HRF"). He also refused to sign a separate, so-called substitute agreement (hängavtal) with HRF. He referred to his objections against the system of collective bargaining and emphasised that his employees were paid more than a collective agreement would have provided for them and that they themselves objected to the signing of any agreement on their behalf.        The substitute agreement which had been proposed to the applicants' employer was worded as follows:        (translation)        "Parties: [The applicants' employer] and [HRF]        Term of validity: From 1 July 1987 up to and including      31 December 1988, thereafter for one year at a time,      unless notice is given two months prior to the expiry      of the [agreement].      ...      As from the [above] date, the most recent agreement      between [the employers' association] and [HRF] shall      be applied between [the applicants' employer and HRF].      Should [the employers' association] and [HRF]      subsequently reach a new agreement or agree to amend      or supplement the [present] agreement, [the new      agreement, amendments or supplements] shall      automatically apply as from the day on which [it or      they] [has or have] been [agreed upon].      ...        1.    [The employer shall] [on his employees' behalf]      subscribe to and maintain [five different] insurances      in "Labour Market Insurances"      ("Arbetsmarknadsförsäkring"),... as well as other      possible insurances which [the employers' association      and HRF] might later agree upon.        2.    [The employer shall] issue employment      certificates on a special form... A copy shall be sent      to [HRF].        3.    [The employer shall] only employ [workers who are      members] of or [have] requested membership of [HRF].      In case of re-employment the rules in Section 25 of      the Employment Protection Act (lag 1982:80 om      anställnings-skydd) shall be applied.        4.    [The employer shall] on a monthly basis deduct a      part of the salary of employed members of [HRF] which      corresponds to their membership fees, and pay [the      deducted part] to [HRF].      ..."        On 16 July 1987 the applicants' employer met a representative of HRF. Following the negotiations HRF proposed the following agreement which was, however, not signed by the applicants' employer:        (translation)        "Subject: The signing of a collective agreement      regarding [the restaurant] Ihrebaden ... and the      Lummelunda youth hostel.        1.    Having regard to the forthcoming end of the      [season of 1987] the parties agree on the following      procedure replacing the signing of a collective      agreement.        The enterprise agrees to comply, during this      season..., with the collective labour agreement ('the      green national agreement') between the Association of      Hotel and Restaurant Employers and Others (Hotell- och      Restaurangarbetsgivare-föreningen m.fl.; hereinafter      "HRAF") and [HRF], this including the obligation to      subscribe to [certain] insurances (avtalsförsäkringar)      in "Labour Market Insurances".        2.    The enterprise also agrees to [comply with] [the]      collective labour agreement ... during the next      season..., either by way of membership in the      employers' union or by signing a ... substitute      agreement..."        Following the applicant's employer's refusal to sign a substitute agreement HRF in July 1987 placed his restaurant under a blockade and declared a boycott against it. Sympathy measures were taken the same month by the Commercial Employees' Union (Handelsanställdas Förbund) and the Swedish Food Workers' Union (Svenska Livsmedelsarbetareförbundet).        In the summer of 1988 sympathy measures were also taken by the Swedish Transport Workers' Union (Svenska transportarbetareförbundet) and the Union of Municipal Employees (Kommunalarbetareförbundet). As a result the delivery of groceries to the restaurant and the collection of refuse from it were stopped.        In the summers of 1987 and 1988 one of the employees at "Ihrebaden" was a member of HRF. She publicly expressed the opinion that the industrial actions were unnecessary, as the salary and working conditions could not be criticised.        In August 1988 the applicants, invoking the Convention, requested that the Government prohibit HRF from continuing the blockade and the other unions from continuing their sympathy measures.   They further requested that the Government order the unions to pay damages, alternatively that damages be paid by the State.        In its decision of 12 January 1989 the Government (Ministry of Justice) stated the following:        (translation)        "The requests for a prohibition against the blockade      and the sympathy measures as well as damage liability      for the trade unions, concern a legal dispute between      private subjects. According to Chapter 11, Article 3      of the Instrument of Government, such disputes may not      be determined by any other public authority than a      court of law, except by virtue of law. There is no      provision in the law which authorises the Government      to examine such disputes. The Government, therefore,      will not examine these requests on the merits.        The claim for damages is dismissed."        The applicants asked for judicial review of the decision in accordance with the 1988 Act on Judicial Review of Certain Administrative Decisions (lag 1988:205 om rättsprövning av vissa förvaltnings-beslut, hereinafter "the 1988 Act").        On 29 June 1989 the Supreme Administrative Court (Regerings- rätten) dismissed the request, finding that the Government's dismissal and rejection of their claims was not a decision in an administrative matter involving the exercise of public power.        In 1989 HRF demanded that the Swedish Touring Club (Svenska turistföreningen) discontinue its cooperation with the youth hostel owned by the applicants' employer due to his refusal to comply with the relevant collective agreement. HRF apparently threatened to institute industrial actions against all other youth hostels employing members of HRF unless the applicants' employer was excluded from the Touring Club.        Subsequently the applicants' employer was excluded from the Touring Club. This entailed, inter alia, that his youth hostel was no longer mentioned in the Club's catalogue of youth hostels in Sweden. The applicants' employer unsuccessfully contested his exclusion in civil proceedings.        In the beginning of 1991 the applicants' employer sold the restaurant due to his difficulties in running the business despite the industrial actions.        On 9 November 1991 the applicants requested the Government to support their application before the Commission.        On 12 December 1991 the Government decided not to take any measures in respect of the request.   Relevant domestic law   a.    Freedom of association and right of association   aa.   Constitutional protection        According to Chapter 2, Section 1, para. 5 of the Instrument of Government (Regeringsformen), the freedom of association (föreningsfrihet) of every citizen is protected from infringement by "the State or public authorities" (det allmänna).   This freedom entails the right to unite with others for public or private purposes, but may be restricted in accordance with Chapter 2, Section 12, subsection 1 and Chapter 2, Section 14, subsection 2.        Under Chapter 2, Section 2 every citizen is protected from any compulsion on the part of the State or public authorities to belong to a political association, a religious community or any other association for political, religious, cultural or other opinions. No restrictions shall be placed on this right.        According to Chapter 2, Section 17 industrial actions may be taken by a union of employees, an employer or an association of employers, if the legislation or an agreement does not provide otherwise.        Chapter 11, Section 3 provides that legal disputes between private subjects shall only be settled by a court of law, unless otherwise provided by law. There is no legal basis authorising the Government to settle such a dispute.   bb.   Other provisions        Section 7 of the 1976 Act on Co-Determination at Work (lag 1976:580 om medbestämmande i arbetslivet; hereinafter "the 1976 Act") defines the right of association (föreningsrätt) as a right of employers and employees to belong to an organisation of employers or employees, to take advantage of their membership as well as to work for an organisation or for the founding of one.          The right of association shall not be violated. A violation will occur, if anyone on the side of the employer or the employee takes any action to the detriment of anybody on the other side by reason of that person having exercised his right of association, or if anybody on either side takes any action against anybody on the other side with a view to inducing that person not to exercise his right of association. A violation will occur even if the action is taken in order for an obligation towards another party to be fulfilled (Section 8, subsection 1).        Section 8 further stipulates that an organisation of employers or employees shall not have to tolerate a violation of its right of association encroaching upon its activities. Where there is both a local and a central organisation, the provisions in Section 8 shall apply for the central organisation (Section 8, subsection 2).        If the right of association is violated by the termination of an agreement or by a provision in a collective agreement or other contract, that act or provision shall be void (Section 8, subsection 3).        It is the duty of an organisation of employers or an organisation of employees to seek to prevent a member taking any action which violates the freedom of association. Where a member has taken such action, the organisation shall try to persuade him to cease the action (Section 9).        An organisation of employees shall have the right to negotiate with an employer regarding any matter relating to the relationship between the employer and any member of the organisation who is or has been employed by that employer. An employer shall have a corresponding right to negotiate with an organisation of employees (Section 10, subsection 1).        An organisation of employees shall also enjoy the right to negotiate in relation to any organisation to which an employer belongs. The same right shall be enjoyed by the employer's organisation in relation to the organisation of employees (Section 10, subsection 2).        An employer, an employee or a union infringing the 1976 Act or a collective labour contract is liable to compensate the damage hereby caused (Section 54).        The right of negotiation applies regardless of whether there is a collective agreement in force between the parties. However, the 1976 Act prohibits parties at the labour market who are bound by a collective agreement from instituting industrial actions while that agreement is in force (Section 41).        Employers who do not have any employees affiliated with a trade union are not obliged to negotiate with that union about the conditions of work of their employees. However, Swedish law does not prohibit a union from mounting pressure on an employer by instituting industrial actions so as to make him sign or apply a collective agreement.   b.    Access to court        In principle, it is possible for an employer against whom industrial actions have been instituted to request a court injunction to the effect that the actions be ordered to cease, as well as to claim damages. Such a law suit must, however, be based on the fact that the industrial action is unlawful or in breach of an existing collective agreement. In order for a damage claim not based on such a breach to be successful it must, in accordance with Chapter 2, Section 4 of the 1972 Tort Liability Act (skadeståndslag 1972:207), be shown that the industrial action amounts to a criminal offence.       c.    Judicial review        According to the 1988 Act a party to a case before the Government or an administrative authority concerning matters covered by Chapter 8, Sections 2 and 3 of the Instrument of Government may apply to the Supreme Administrative Court, which shall examine whether the decision in the case infringes any legal rule.        Judicial review may be granted only in respect of decisions which involve the exercise of public power and which may otherwise be brought before the courts only after application for a reopening of proceedings (resning) and in regard to which no other means of appeal would have been available.   d.    Protection of the right of re-employment        Section 25 of the 1982 Employment Protection Act sets out the conditions under which a former employee shall have the right to be re-employed. These rules also apply to seasonal workers.       COMPLAINTS   1.    The applicants complain that the lack of State protection against the allegedly unjustified industrial actions instituted against their employer's restaurant violated their negative freedom of association. They allege that the aim of the actions was to deprive them of any possibility of influencing the terms of their contractual relationship with their employer. In any case, as a result of the sale of their employer's restaurant they eventually lost their seasonal employments. They invoke Article 11 in conjunction with Article 17 of the Convention.   2.    The applicants further allege that they had no effective possibility to challenge the industrial actions before Swedish courts. They invoke Article 6 para. 1 and Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 1 July 1989 and registered on 20 September 1989.        On 14 October 1992 the Commission (Second Chamber) decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.        Following three extensions of the time-limit the Government's observations were submitted on 1 April 1993. The applicants' observations in reply were submitted on 28 June 1993.        On 11 January 1994 the plenary Commission ordered, pursuant to Article 20 para. 4 of the Convention, the transfer of the application from the Second Chamber to itself.        On 17 January 1994 the Commission decided to hold a hearing on the admissibility and merits of the application.        At the hearing, which was held on 8 April 1994, the parties were represented as follows:        The Government:        Mr. Carl Henrik EHRENKRONA          Assistant Under-                                         Secretary for Legal                                         Affairs, Ministry for                                         Foreign Affairs, agent        Mrs. Catharina STAAF                Legal Adviser, Ministry of                                  Justice        Mrs. Inga ÅKERLUND             Legal Adviser, Ministry of                                    Labour        The applicants:        Mr. Göran RAVNSBORG            Assistant Professor of Law at                                    the University of Lund, counsel          The first applicant also attended the hearing.        On 8 April 1994 the first applicant was granted legal aid.     THE LAW   1.    The applicants complain that the lack of State protection against the industrial actions taken against their employer's restaurant violated their negative freedom of association. They invoke Article 11 of the Convention, read in conjunction with Article 17 (Art. 11+17).        Article 11 (Art. 11) reads, in so far as relevant:        "1.   Everyone has the right to freedom of peaceful assembly and   to freedom of association with others, including the right      to form and to 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.      ..."        Article 17 (Art. 17) reads:        "Nothing in this Convention may be interpreted as implying      for any State, group or person any right to engage in any      activity or perform any act aimed at the destruction of any      of the rights and freedoms set forth herein or at their      limitation to a greater extent than is provided for in the      Convention."        The Government submit that Article 11 (Art. 11) of the Convention is inapplicable in the case. They underline that the industrial actions were not aimed at compelling the applicants to join the employees' union HRF. The actual effects of the industrial actions against the applicants' employer were, thus, not such as to constitute an interference with their rights under Article 11 (Art. 11). The aim of the actions was to make the employer apply the terms of a certain collective agreement in his contractual relationship with the applicants. Had their employer agreed to comply with that agreement, the only right of the applicants to have been infringed would have been their right freely to conclude an agreement with their employer which they considered best served their interests. However, no such right is guaranteed by Article 11 (Art. 11).        Should Article 11 (Art. 11) be considered applicable, the Government do not argue that the State was not responsible for the lack of protection of the applicants' rights under that provision, nor do they argue that this interference was justified under para. 2 (Art. 11-2) of that provision.        The applicants contend that Article 11 (Art. 11) has been violated. They consider that there has been an unjustified interference with the very essence of their freedom of association, namely their right to conclude employment contracts on terms agreed upon by themselves and their employer. They do not question HRF's right to defend its members, but underline that they had all explicitly objected to being represented by that union. Allegedly, HRF never consulted the applicants prior to instituting its actions.        The applicants further submit that their position in relation to HRF was even weaker than that of their employer, given that he had the choice of refusing to be bound by the collective agreement. Had he, however, not persisted in his refusal, the applicants would also have been compelled to comply with that agreement, although none of them was a member of HRF. Already this threat against their negative freedom of association struck at the very essence of that freedom. At any rate, the applicants eventually lost a significant part of their livelihood following the sale of the restaurant.        The applicants finally submit that the State cannot absolve itself from responsibility by delegating measures related to collective bargaining to private bodies. Reference is made to Article 27 (Art. 27) of the Vienna Convention on the Law of Treaties, according to which a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Thus, having regard to the requirement in Article 17 (Art. 17) of the Convention, the State had an obligation to protect them from the industrial actions against their employer's restaurant.        The Commission recalls that Article 11 (Art. 11) must be viewed as encompassing a negative freedom of association, bearing in mind that the Convention must be interpreted in the light of present-day conditions (Eur. Court H.R., Sigurjónsson judgment of 30 June 1993, Series A no. 264, pp. 15-16, para. 35). Permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom Article 11 (Art. 11) is intended to guarantee (Eur. Court H.R., Young, James and Webster judgment of 13 August 1981, Series A no. 44, pp. 21-22, para. 52). For the rights under Article 11 (Art. 11) to be effective the State must protect the individual against any abuse of a dominant position by trade unions (ibid., p. 23, para. 55).        Assuming that Article 11 (Art. 11) is applicable in the present case, the Commission observes that the industrial actions against the applicants' employer resulted in the stopping of deliveries to his restaurant and the collection of refuse from it. However, as a result of their employer's refusal to be bound by the relevant collective agreement, the industrial actions did not have the effect of preventing the applicants from remaining unorganised employees, nor did the actions affect the conditions of their employment.        In these particular circumstances the Commission concludes that there has been no failure on the part of the respondent State to actively provide protection to the applicants against interference with their negative freedom of association (cf. Eur. Court H.R., Sibson judgment of 20 April 1993, Series A no. 258-A, p. 14, para. 29).        It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants further allege that they had no effective possibility to challenge the industrial actions before Swedish courts.   They invoke Article 6 para. 1 (Art. 6-1) and Article 13 (Art. 13) of the Convention.        Article 6 para. 1 (Art. 6-1) of the Convention reads, in its relevant part:        "In the determination of his civil rights ...,      everyone is entitled to a ... hearing ... by [a]      tribunal ..."        Article 13 (Art. 13) of the Convention reads:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy      before a national authority notwithstanding that the      violation has been committed by persons acting in an      official capacity."        The Government do not object to the complaint being declared admissible. They consider that the industrial actions against the applicants' employer interfered with the applicants' freedom to conclude employment contracts and that there was a dispute regarding the justification of those actions. The applicants had certain court remedies at their disposal, since they could have requested an injunction stopping the actions, or claimed damages from the unions or the State. All these remedies would have enabled the courts to examine the merits of the matter. There would, however, have been no legal basis for a ruling in the applicants' favour, given that such court actions would have had to be based on the argument that the industrial actions were unlawful or in violation of an existing collective agreement between the applicants and their employer. In these circumstances, the Government doubt whether such a court examination would have been effective for the purposes of Article 6 (Art. 6).   (a)   Assuming that Article 6 para. 1 (Art. 6-1) of the Convention is applicable, the Commission notes that it is not in dispute that the applicants had access to a court in order to challenge the industrial actions. Whether or not any of the actions referred to by the Government would have been successful is not decisive for the question whether Article 6 (Art. 6) has been violated. The Commission therefore concludes that there has been no violation of Article 6 (Art. 6).        It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (b)   In so far as Article 13 (Art. 13) of the Convention has been invoked, the Commission considers that the applicants have no "arguable claim" of a breach of the Convention which would warrant a remedy in accordance with Article 13 (Art. 13) (cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, pp. 23-24, paras. 52-54).        It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The Commission finally considers that no separate issue arises under Article 17 (Art. 17) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (C.A. NØRGAARD)