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. 15573/89                     by Torgny GUSTAFSSON                     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 Torgny GUSTAFSSON against Sweden and registered on 4 October 1989 under file No. 15573/89;        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 and 30 August 1993 and the      observations in reply submitted by the applicant on 28 June      1993;        -     the parties' oral submissions at the hearing on      8 April 1994;        Having deliberated;        Decides as follows: THE FACTS        The applicant, a nurse, was born in 1947.   He resides at Tingstäde and is a Swedish citizen.   Before the Commission he is 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 applicant owned the summer restaurant "Ihrebaden" at Ihreviken, Tingstäde on the island of Gotland. He further owned the youth hostel "Lummelunda" at Nyhamn, Visby, also on Gotland. Only the restaurant had hired employees. These amounted to less than ten. (Part of those employees have lodged Application No. 15533/89.) They were hired on a seasonal basis, but had the option of being re-employed.        The applicant 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 applicant was worded as follows:        (translation)        "Parties: [The applicant] 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 applicant 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 applicant met a representative of HRF. Following the negotiations HRF proposed the following agreement which was, however, not signed by the applicant:        (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 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 deliveries to the restaurant 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 applicant, invoking the Convention, requested that the Government prohibit HRF from continuing the blockade and the other trade unions from continuing their sympathy measures.   He 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 applicant 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 förvaltningsbeslut, hereinafter "the 1988 Act").        On 29 June 1989 the Supreme Administrative Court (Regeringsrätten) dismissed the request, finding that the Government's dismissal and rejection of the 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 applicant 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 applicant was excluded from the Touring Club.        Subsequently the applicant 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 applicant unsuccessfully contested his exclusion in civil proceedings.        In the beginning of 1991 the applicant sold the restaurant due to his difficulties in running the business despite the industrial actions.        On 9 November 1991 the applicant requested the Government to support his 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 applicant complains that the lack of State protection against the industrial actions taken against his establishment violated his negative freedom of association. He submits that the actions were unjustified, since all his employees were paid more than they would have been entitled to under the relevant collective agreement and since they themselves did not wish him to be bound by such an agreement. The applicant invokes Article 11 of the Convention in conjunction with Article 17.   2.    The applicant further complains that the lack of State protection against the industrial actions also violated his right to the peaceful enjoyment of his possessions. He alleges that the industrial actions have caused him major economic damage and forced him to sell his restaurant. He invokes Article 1 of Protocol No. 1 in conjunction with Article 17 of the Convention.   3.    The applicant further complains that the court remedies which he could resort to in order to challenge the industrial actions would have been ineffective, the industrial actions of HRF being lawful under Swedish law. He invokes 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 4 October 1989.        On 14 October 1992 the Commission (Second Chamber) decided to bring the application to the notice of the Government and to request written observations on its admissibility and merits.        Following three extensions of their time-limit the Government submitted their observations on 1 April and 30 August 1993. The applicant's observations in reply were submitted on 23 June 1993.      On 5 July 1993 the applicant was granted legal aid.        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 applicant:        Mr. Göran RAVNSBORG            Assistant Professor of Law at                                    the University of Lund, counsel          The applicant also attended the hearing.     THE LAW   1.    The applicant complains that the lack of State protection against the industrial actions taken against his establishment violated his negative freedom of association. He invokes Article 11 of the Convention in conjunction with Article 17 (Art. 11+17).        Article 11 reads (Art. 11), 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. They underline that the applicant was in no way compelled by the employees' union HRF to join the employers' association HRAF, as he could have chosen to sign the substitute agreement. Had he done so, HRF's interests would have been met and no industrial actions would have been called for. The Government admit, however, that signing the substitute agreement instead of joining the employers' association would, in any case, have bound the applicant to the collective agreement between HRF and that association. In that case the effects of the substitute agreement might have been less favourable to the applicant than an actual membership of HRAF, given that he would have had no influence over the contents of future collective agreements, while at the same time being bound by the terms of such agreements.        The Government further submit that the right of a union to take industrial actions whenever the employer is not bound by a collective agreement is protected by Swedish law regardless of whether any action has been called for by any of his employees. The unions' right to take industrial actions may further be considered inherent in their right to freedom of association under Article 11 (Art. 11). Also a number of other international treaties to which Sweden is a party protect the right of trade unions to promote their interests through industrial actions. The Government further emphasise that in Sweden a great responsibility is placed on unions to ensure that industrial actions are not used in a way which is detrimental to society or for unjustified purposes and that such actions are not contrary to the general sense of justice.        The Government concede that the applicant's freedom to reach employment contracts with his employees without having to comply with the relevant collective agreement might have been infringed. This freedom is, however, not guaranteed by the Convention. Moreover, although the industrial actions must have seriously affected the possibility for the applicant to run his business, the State cannot be held responsible for acts of private subjects in relation to other such subjects.        Should Article 11 (Art. 11) be considered applicable, the Government accept that the State was responsible for the lack of protection of the applicant's rights under that provision. The Government do not argue that such an interference with the applicant's rights was justified under para. 2 (Art. 11-2) of that provision.        The applicant maintains that his right not to join the employers' association HRAF, as recognised by the present case- law of the Convention organs, must also be considered to entail a right for him to negotiate with his employees without any influence by a trade union. The applicant does not question HRF's right to defend its members, but underlines that his employees in no way suffered from their lack of affiliation with HRF or his lack of affiliation with an employers' association. He recalls that all employees, including the only employee who was a member of HRF, objected to the industrial actions.        The applicant further submits that the choice proposed to him in order to avoid membership in the employers' association HRAF, namely the signing of a substitute agreement, was a fictitious one, as both alternatives would have struck at the very essence of his negative freedom of association. Moreover, the State cannot absolve itself from its responsibility under Article 11 (Art. 11) 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 him from the industrial actions.        The Commission has proceeded to a preliminary examination of this complaint in the light of the parties' submissions. It considers that the complaint raises questions of fact and law which are of such a complex nature that their determination requires an examination of the merits. The complaint cannot therefore be declared inadmissible as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   2.    The applicant further complains that the lack of State protection against the industrial actions also violated his right to the peaceful enjoyment of his possessions. He invokes Article 1 of Protocol No. 1 to the Convention, read together with Article 17 (P1-1+17) of the Convention.        Article 1 of Protocol No. 1 (P1-1) reads:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of      his possessions except in the public interest and subject      to the conditions provided for by law and by the general      principles of international law.        The preceding provisions shall not, however, in any way      impair the right of a State to enforce such laws as it      deems necessary to control the use of property in      accordance with the general interest or to secure the      payment of taxes or other contributions or penalties."        The Government submit that Article 1 of Protocol No. 1 (P1- 1) is not applicable. They concede that the industrial actions must have seriously affected the possibility for the applicant to run his business, but emphasise that the State has in no way prevented the applicant from running his business or in any other way interfered with his activities. By not prohibiting the industrial actions the State has tolerated them, as it tolerates many other activities in the open market. The fact that the applicant's suppliers did not deliver their goods and that the goodwill of his business might have been affected negatively as a result of the industrial actions could also have occurred as a result of other events falling within the scope of, for instance, contract law. In such a case the State could not be held responsible for the damage caused to the business. A similar approach must be adopted also in the present case so as not to make States responsible for the non-fulfilment of private contracts.        Should the Commission consider Article 1 of Protocol No. 1 (P1-1) to be applicable, the Government submit that the interference was justified in view of the wide margin of appreciation afforded to the Contracting States in this field. They refer, in particular, to the particular features of the Swedish system for collective bargaining which for many years has kept industrial actions at a tolerable level, given that such actions are prohibited as long as a collective agreement is in force. The Government admit, however, that this system clearly favours the various associations of employees and employers and disregards the interests of those who do not wish to be a member of any of those.        The applicant contends that there has been an unjustified interference with his right to the peaceful enjoyment of his possessions. No fair balance was struck between the conflicting interests at stake, as he had to bear the whole burden of the industrial actions. The interference was furthermore not carried out in the public interest.        The Commission has proceeded to a preliminary examination of this complaint in the light of the parties' submissions. It considers that this complaint also raises questions of fact and law which are of such a complex nature that their determination requires an examination of the merits. The complaint cannot therefore be declared inadmissible as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   3.    The applicant finally complains that the court remedies which he could resort to in order to obtain protection against the industrial actions would not have been effective. He invokes 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 exclude that Article 6 para. 1 (Art. 6-1) is applicable and have no objections to the complaint under this provision being declared admissible. They consider that the dispute concerning the justification of the industrial actions concerned the applicant's civil rights and obligations, in particular as the actions must have seriously harmed the possibility for him to run his business, thereby affecting his property rights. The applicant had certain court remedies at his disposal, namely a claim for damages against the State, the unions and his suppliers. He could also have requested an injunction in order to have the industrial actions stopped. 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 favour of the applicant. The Government therefore doubt whether such a court examination could be regarded as effective for the purposes of Article 6 (Art. 6).        As regards the complaint under Article 13 (Art. 13), the Government admit that the applicant had no effective remedy at his disposal, should the Commission conclude that there has been a violation of either Article 11 (Art. 11) of the Convention or Article 1 of Protocol No. 1 (P1-1). Should the Commission conclude that Article 6 (Art. 6) has been violated, the Government submit that no separate issue arises under Article 13 (Art. 13).        The Commission has proceeded to a preliminary examination of this complaint in the light of the parties' submissions. It considers that this complaint also raises questions of fact and law which are of such a complex nature that their determination requires an examination of the merits. The complaint cannot therefore be declared inadmissible as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (C.A. NØRGAARD)