CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.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. 24118/94                        by Max HEDLAND                        against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 9 April 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 January 1994 by Max HEDLAND against Sweden and registered on 10 May 1994 under file No. 24118/94;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 20 September 1996 and the observations in reply submitted by the applicant on 2 October 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Swedish citizen born in 1942 and residing in Stockholm, is a butcher by profession.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         The applicant is a member of the Swedish Food Workers' Union (Svenska Livsmedelsarbetareförbundet), under the umbrella of the Swedish Confederation of Trade Unions (Landsorganisationen).         Having worked as a butcher for many years, the applicant, in April 1982, experienced pains in his neck, shoulders, arms and back. The Social Insurance Office (Försäkringskassan) considered that the pains were related to his work and he was on sick leave during certain periods between 1982 and 1986.   After continuing problems, the applicant was again on sick leave as from 14 August 1989.   As it was not possible for his employer to give him alternative work, he later agreed to undergo retraining to become a food technician.   He started his studies in August 1990.   By decision of 27 August 1990, the Social Insurance Office found that he was entitled to sickness benefits under the Industrial Injury Insurance Act (Lag om arbetsskadeförsäkring, 1976:380) during his studies.   This finding was confirmed by subsequent decisions of the Office on 11 January and 16 August 1991.   The latter decision concerned his entitlement to benefits for the period 27 August 1991 - 20 May 1992, during which the applicant took part in a training programme for people with reading and writing difficulties.         On 6 September 1991 the applicant requested a grant of 26,000 Swedish crowns (SEK) from Labour Market Insurances (Arbetsmarknads- försäkringar - hereinafter "AMF"), a private insurance company.   The grant should cover the cost of a word processor which would facilitate his studies.         The applicant's request was based on an industrial injury insurance (trygghetsförsäkring vid arbetsskada - hereinafter "the TFA") taken out by his employer with AMF in accordance with an obligation stipulated in collective agreements concluded between the Swedish Employers' Confederation (Svenska Arbetsgivareföreningen), the Swedish Confederation of Trade Unions and the Federation of Salaried Employees in Industry and Services (Privattjänstemannakartellen).   According to Section 9 of the common terms applicable to the TFA and other labour market insurances administered by AMF, the insurance applies to all employees of the employer who has taken out the insurance.         Section 26 of the terms of the TFA for 1982, the insurance applicable in the present case, provides the following:   (translation)         "If the injured person due to remaining effects of the       industrial injury cannot return to his or her previous       work, he or she will be compensated for reasonable costs       relating to the necessary rehabilitation to other       comparable work."         Claims under the TFA are decided by AMF.   If the insured is dissatisfied with AMF's decision, he may, pursuant to Section 30 of the above-mentioned common terms, request a review by a special advisory board (TFA-nämnden) responsible for the interpretation of the terms of the insurance.   The advisory board consists of representatives of the major labour market organisations and two major insurance companies.         By letter of 1 October 1991, AMF informed the applicant that it had refused his request as the word processor was not considered to be necessary for his studies.   On 25 September 1992 the decision was upheld by the advisory board.         The applicant thereafter referred the matter to the Arbitration Board for Labour Market Insurances (Skiljenämnden för AMF- försäkringar).   According to Sections 31-33 of the common terms, a dispute on the interpretation and application of the TFA may, subsequent to the advisory board's review, be referred to the Arbitration Board by a party to the dispute.   In matters relating to the TFA, the Arbitration Board is made up of seven members.   Six members are appointed by the above three labour market organisations which have concluded the collective agreements relating to the insurance.   The seventh member, a court judge, is selected by these six members to serve as the Arbitration Board's chairman.   The Arbitration Board's awards are final and binding on the parties to the dispute.         In addition to the applicant and AMF, the relevant trade organisations - the Food Industry Employers' Association (Livsmedelsbranschens Arbetsgivareförbund) and the Swedish Food Workers' Union - as well as the three above-mentioned labour market organisations were invited, in accordance with the normal procedure before the Arbitration Board, to give their opinion on the case. However, they refrained from making any statements.         On 20 October 1993 the Arbitration Board, agreeing with the decisions of AMF and its advisory board, found against the applicant.         It appears that the applicant did not try to bring the dispute between him and AMF before the courts.   B.     Relevant domestic law         Under Chapter 10, Section 18 of the Code of Judicial Procedure (Rättegångsbalken), the ordinary courts may not examine a dispute if there is a valid agreement to settle the dispute by arbitration. However, an arbitration agreement will not be taken into account unless it is invoked by a party to the dispute.   Furthermore, under Section 18 of the Arbitration Act (Lag om skiljemän, 1929:145), a party to arbitration proceedings may challenge the validity and applicability of the arbitration agreement in the ordinary courts.   The courts may set aside such an agreement if it has been reached by means of, inter alia, duress, fraud or undue influence.   Section 36 of the Act on Contracts (Lag om avtal och andra rättshandlingar på förmögenhets- rättens område, 1915:218) is also of interest.   It states that a contract provision may be modified or set aside if it is unfair having regard to the contents of the contract, the circumstances at the conclusion of the contract, subsequent events and other circumstances. Special regard shall be had to the need for protection of consumers or anyone who is considered the weaker party to the contract. COMPLAINTS         The applicant complains that he did not have access to a court for the determination of the dispute between him and AMF.   He does not invoke any Articles of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 January 1994 and registered on 10 May 1994.         On 15 May 1996 the Commission (Second Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 20 September 1996 after an extension of the time-limit fixed for that purpose.   The applicant replied on 2 October 1996.     THE LAW         The applicant complains that he did not have access to a court for the determination of the dispute between him and AMF.         The Commission will examine the complaint under Article 6 para. 1 (Art. 6-1) of the Convention, the relevant parts of which read as follows:         "In the determination of his civil rights ..., everyone is       entitled to a ... hearing ... by [a] ... tribunal ..."         The respondent Government maintain that the applicant has not exhausted domestic remedies by filing a lawsuit against AMF.   The arbitration agreement would not have been taken into account unless it had been invoked by AMF, and it is not possible to know whether AMF would have invoked the agreement.   Further, it is uncertain whether, if AMF actually had invoked the agreement, the courts would have found it valid and fair.   For these reasons, the Government contend that the applicant had and still has access to a court for the determination of the relevant dispute.   However, according to the Government, it can be argued that the agreement would not have been set aside under Section 36 of the Act on Contracts, as the arbitration proceedings did not involve any costs for the applicant.         In any event, the Government further claim that the applicant, at least tacitly, waived his right to court proceedings, freely and unambiguously, by first requesting a benefit under the insurance contract which included the arbitration clause and then referring the dispute to the Arbitration Board designated by that clause.   In accepting the benefits of the insurance contract, the applicant must be regarded as having also accepted the alleged disadvantage of the arbitration clause, especially as he made use of it.         The applicant argues that the arbitration clause applicable to the TFA has been agreed upon by the labour market organisations which have concluded the collective agreements and that, although being a trade union member, he has not waived his right to have the dispute determined by a court.   Moreover, it is not in the interests of the labour market organisations to have such a dispute referred to a court.         The Commission first notes that the case concerned a dispute between the applicant and an insurance company as to whether the applicant was entitled to a certain grant under a private insurance contract.   The Commission finds that the case involved a determination of the applicant's "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) and that, accordingly, this provision is applicable to the present complaint.         The Commission does not find it necessary to decide whether, in the circumstances of the case, the applicant could be considered to have waived his right to a determination by a court as, in any event, the application is inadmissible for the following reasons.         The Commission recalls that Swedish courts, under certain circumstances, may set aside an arbitration agreement and, consequently, examine a dispute brought before them despite the existence of such an agreement.   It is true that the respondent Government have stated that it can be argued that the agreement in the present case would not have been set aside under Section 36 of the Act on Contracts.   The Commission notes, however, that this is not the only ground for setting aside an arbitration agreement.   Furthermore - and more importantly - such an agreement prevents the courts from examining the relevant dispute only if it is invoked by a party to the dispute.         In the present case, the applicant has not tried to have the dispute between him and AMF examined by the courts.   Thus, it is not possible to ascertain whether AMF would have invoked the arbitration agreement and, if so, whether the courts would have found themselves prevented from examining the case on account of that agreement.         In these circumstances, the Commission considers that the applicant's submissions do not disclose a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.             M.-T. SCHOEPFER                         G.H. THUNE            Secretary                             President       to the Second Chamber                of the Second Chamber