CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 mars 2003

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Rozakis , President ,   Mrs   F. Tulkens ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mr   E. Levits ,   Mr   A. Kovler ,   Mr   V. Zagrebelsky, judges , and     Mr     S. Nielsen , Deputy Section Registrar Having regard to the above application introduced on 7 October 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant is a Danish national, born in 1975 and living in Aarhus, Denmark. He is represented before the Court by Mr Carsten Munk-Hansen, a lawyer practising in Herning, Denmark. The respondent Government are represented by their Agent, Mr Hans Klingenberg, the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 10   May   1996 the applicant, who was a student, applied for a job as a holiday relief in a company, FDB (FDB distributionen ), and he filled in an application form with a ready printed paragraph stating inter alia :   “To obtain the job it is mandatory to be a member of one of the trade unions affiliated to the National Union in Denmark ( LO ). On your request you will be informed as to which one.” In a letter of 20   May   1996 the applicant was told that he had got the job from 3   June until 10   august 1996 and that his terms of employment would be regulated by an agreement concluded between FDB and a trade union henceforth called SID, which is affiliated to the above LO and of which the applicant was under an obligation to become a member. From the applicant’s first payslip he became aware on 20   June   1996 that he was paying subscription to SID, though he had not applied for membership. In a letter of 23   June 1996 the applicant informed his employer and the shop steward that he did not want to pay the subscription to SID, inter alia , because he was told that, as a holiday relief employee, he would not obtain full membership of SID. Consequently, on 24 June 1996 the applicant was dismissed as he did not satisfy the requirements to obtain the job i.e. being a member of a trade union affiliated to LO. The applicant instituted proceedings in the High Court of Western Denmark ( Vestre Landsret ) against FDB requesting compensation, and that FDB be ordered to recognise that his dismissal was unlawful. He alleged that section 2, subsection 2 of the Danish Act on Protection against Dismissal due to Association Membership of 9   June   1982, as amended on 13   June   1990 ( Lov om beskyttelse mod afskedigelse på grund af foreningsforhold ), violates Article   11 of the Convention as it allows an employer to require that an employee must be a member of an association or a specific association in order to obtain employment. On   18   November   1998 the High Court found for FDB, stating as follows: “The High Court finds it established that the applicant was aware that membership of SID was a condition for his employment in the company. Thus, since the applicant did not comply with this term the conditions for dismissing him are fulfilled cf. section 2, subsection 2 in conjunction with subsection 1 of the Danish Act on Protection against Dismissal due to Association Membership. Therefore, the pertinent question is whether the Act in question, and with it the applicant’s dismissal, is at variance with Article 11 of the   Convention on Human Rights, in the light of the interpretation this Article has been given by the Court of Human Rights in its latest case law. The Danish Act on Protection against Dismissal due to Association Membership was passed by the Parliament in 1982 as a result inter alia of the British Rail Judgment (the Young, James and Webster v. UK judgment Series A no. 44) pronounced by the Court of Human Rights in 1981. By this judgment it was established that in certain circumstances Article 11 also secures the negative right to freedom of association. In the assessment whether, subsequent to the Court’s latest case-law, the domestic courts have to cease recognising section 2, subsection 2 of the Act on Protection against Dismissal due to Association Membership, the starting point must be taken in the Danish Act of 1992 incorporating the Convention on Human Rights. According to the preparatory notes the incorporation did not intend to change the existing balance between the Danish Parliament and the Danish courts. Thus, in the view of the High Court, though taking into account the rights and obligations deducible from the Convention on Human Rights the Parliament still has a considerable discretion when laying down Danish law. In this respect it is also of importance to note that a decision setting aside or limiting the existing possibility to enter into closed shop agreements will have far-reaching consequences for the Danish labour market. In support of the applicant’s understanding of the extent of Article   11 reference has been made to the Sigurjόnsson v. Iceland judgment of 1993 and the Gustafsson v. Sweden judgment of 1996. However, in the view of the High Court an interpretation of these jugdments does not establish with the necessary certainty that section 2, subsection 2 of the Act on Protection against Dismissal due to Association Membership is at variance with Article   11 of the Convention.” On appeal, the Supreme Court (Højesteret) on 8   June 1999 upheld the High Court’s judgment. In its reasoning the Supreme Court stated as follows: “Act no. 285 of 9   June   1982 on Protection against Dismissal due to Association Membership was passed, notably in order to comply with the negative right to freedom of association to the extent an obligation thereto could be established according to the interpretation of Article 11of the Convention given by the Court of Human Rights in the Young, James and Webster v . UK judgment Series A no. 44 (British Rail). As stated in the Supreme Court’s judgment of 6   May   1999 (concerning application no. 52620/99 Jensen and Rasmussen v. Denmark) the latest judgments from the Court of Human Rights give no reasons to asses the lawfulness of closed shop agreements and their consequences any different than what appears from the British Rail judgment. In addition section 2, subsection 2 of the Danish Act on Protection against Dismissal due to Association Membership of 9   June   1982 raises no doubts about the compatibility with this judgment. In addition to the above mentioned judgment of 6   May 1999, in another recent case, the Supreme Court decided by judgment of 12   May 2000, on the lawfulness of closed shop agreements in relation to the Danish Act on Protection against Dismissal due to Association Membership of 9   June   1982 and in relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It appears from both judgments that according to the interpretation made by the Supreme Court, closed shop agreements are as such not contrary to Article 11 of the Convention as the provision has been interpreted by the Strasbourg Court. B.     Relevant domestic and international law and practises Section 78 of the Danish Constitution ( Danmarks Riges Grundlov ) provides: 1.   Citizens shall, without previous permission, be free to form associations for any lawful purpose.    2.    Associations employing violence, or aiming at the attainment of their object by violence, by instigation to violence, or by similar punishable influence on persons holding other views, shall be dissolved by a court judgment. 3.   No association shall be dissolved by any government measure; but an association may be temporarily prohibited, provided that immediate proceedings be taken for its dissolution. 4.   Cases relating to the dissolution of political associations may, without special permission, be brought before the Supreme Court ( Rigets øverste domstol ). 5.   The legal effects of the dissolution shall be determined by statute.   The Danish Act on Protection against Dismissal due to Association Membership of 9   June   1982 (which was passed as a direct result of the Court’s ruling in 1981 in the Young, James and Webster v. UK judgment, Series   A no. 44), amended by Act no. 347 of 29 May 1990, reads in as far as relevant: Section 1   An employer may not dismiss an employee on the grounds that he or she is a member of an association or of a certain association. Section 2 1.   An employer may not dismiss an employee on the grounds that he or she is not a member of an association or of a certain association 2. Subsection 1 does not apply if the employee, prior to recruitment, knew that the employer made membership of an association or of a specific association a condition for being employed with the enterprise. 3.   Subsection 1 is furthermore not applicable when the employee, who is a member of an association, subsequent to the employment is informed that membership is a condition for continued employment with the enterprise Section 3 Sections 1 and 2 of the Act do not apply to employees who are employed by employers whose business specifically aims at furthering a political, ideological, religious or cultural purpose and the membership of the person concerned must be considered of importance for the business. Section 4 Where an employee is dismissed contrary to the provisions of this Act, the dismissal must be overruled and the employment continued or restored, if so claimed. However, this does not apply to employees in the private sector if, in special cases and following a balancing of the interest of the parties, it is found obviously unreasonable to claim continuation or restoration of the employment. Section 4.a 1.   Where an employee is dismissed contrary to the provisions of this Act without the dismissal being overruled, the employer shall pay compensation. 2.   The compensation, which may not be less than one month’s salary or wages and not exceed 24 months’ salary or wages, must be fixed in view of the period of employment and the circumstances of the case in general. If the employment has lasted for at least two years, such compensation may not be less than three months’ salary or wages.     Section   4.b 1.   Cases under this Act must be processed as quickly as possible. 2.   During the hearing of a case concerning dismissal, the court may order that the dismissal will not become effective until the case has been finally decided by a judgment. The judgment may stipulate that the dismissal will not be stayed in case of an appeal.   The Act on Private Contributions to Political Parties and Disclosure of the Accounts of Political Parties, No. 404 of 13 June 1990 ( Lov om private bidrag til politiske partier og offentliggørelse af politiske partiers regnskaber) as amended by Act No. 394 of 14 June 1995 reads in as far as relevant: Section 1 Employers’ federations, trade unions and other trade associations whose main objectives are to attend to the economic interests of the trade group to which their members belong shall ensure that any financial contribution to political parties or for party political purposes in general collected as part of partnership fees are collected on a voluntary basis for the individual member. Section 2 1.     A member, who wish to be exempt from payment of contributions to political parties or for political purposes in general as part of the membership fees shall submit a written declaration to this effect. 2.     Once a year the association shall forward to its members a form containing the wording of such declaration. Publishing the form in a members’ journal or a similar publication can fulfil such obligation. The declaration must have the following wording: “I want to be exempt from payment of contributions to political parties or for party political purposes in general as part of my membership fees” 3.     The declaration must be forwarded to the auditor of the association. This must appear from the form referred to in subsection 2 hereof. Declarations forwarded to association offices by the members must be re-forwarded to the auditor immediately. The Minister of Justice may lay down further provisions on the layout of the form and auditors’ treatment of declarations received. 4.   Information on the persons who are exempt from payment of contributions or who have made a request to this effect may not be subject to any unauthorised disclosure.   Below is a general description of the background of closed shop agreements in the Danish labour market.   The struggle at the end of the 19 th century between on the one side employees and their unions (notably what is today called the LO, i.e. the Danish Federation of Trade Unions) and on the other side the employers and their federations (mainly the central organisation DA, i.e. the Danish Employers Confederation) resulted in the so-called September Agreement from 1899 between the LO and the DA. The Agreement laid down five major principles:   1. the right of employees to organise in trade unions; 2. the right of the employers to manage and control work; 3. the right to industrial actions (strike, boycott and lockout) to obtain     e.g. a collective agreement; 4. the embargo on industrial action, which means that no strikes are     lawful during the term of a collective agreement; 5. the establishment of a special arbitration tribunal to deal with all    violations of the September Agreement.   The September Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners. By tradition the Danish legislature plays a minor role as regards governing wages, salaries and employment conditions. Therefore, only to some extent does the Danish labour market have legislation, which does not emanate from EU Directives, e.g. the Salaried Employees’ Act ( Funktionærloven ) and the Danish Holiday Act ( Ferieloven ).   Accordingly, rights imposed by statute in other countries have in Denmark been obtained by agreements between the labour market partners. It is thus characteristic of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individuals), labour law principles and general statutes and rules laid down in pursuance of statutes. More than 80 per cent of all employees in Denmark are union members. From figures provided by Danish Statistic ( Danmarks Statistikbank) and the Ministry of Employment ( Beskæftigelsesministeriet), in 2001 the Danish workforce consisted of 2,799,958   persons (inclusive unemployed). Thereof 1,611,715 were employed within the private sector and 937,826 within the public sector. The Government estimates that nearly 80 per cent of all employees are comprised by collective agreements. The applicant disagrees with this estimation. The institution of closed shop agreements is of long standing in Denmark. Typically a closed shop agreement states that an employer has undertaken only to hire and employ members of the trade union that is party to the collective agreement concluded by the employer. Closed shop agreements are unlawful in the public sector labour market and they are not concluded in the part of the private sector labour market, which is comprised by the general agreement between the DA and the LO, because DA considers the use of closed shop provisions as an interference with the employers’ managerial right. Thus, closed shop agreements are mainly of importance in collective agreements concluded with unorganised employers. The precise number of employees covered by closed shop agreements is unknown. However, from figures provided by DA and the Christian Trade Union the Government estimate that between 220,000 and 230,000 wages earners are affected in some way by closed shop agreements, thereby affecting less than 10 per cent of all Danish employees on the labour market. The applicant submits that this estimation probably is somewhat below the actual figure. After the general election in Denmark on 20 November 2001 the new Government decided to procure a report on closed shop agreements. The report was submitted in June 2002 (Betænkning nr. 1419, Udvalget om eksklusivbestemmelser ) and recommended that closed shop agreement be prohibited.   The preparatory notes to Article 11 of the Convention   The preparatory notes to Article 11 of the Convention (Report of 19   June   1950 of the Conference of Senior Officials, Collected Edition of the “Travaux Préparatoires”, vol. IV, p. 262) state inter alia : “On account of the difficulties raised by the ‘closed shop system’ in certain countries, the Conference in this connection considered it undesirable to introduce into the Convention a rule under which ‘no one may be compelled to belong to an association’ which features in [Article 20 § 2] of the United Nations Universal Declaration”.   The European Social Charter 1961     Article 5 of the European Social Charter provides for the following “right to organise”: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” In its Conclusions XIV-1 and XV-1 the European Committee of Social Rights found that the Danish Act on Protection against Dismissal due to Association Membership infringes on Article 5 of the Social Charter of the Council of Europe, in so far as an employee can be dismissed if the employee prior to recruitment knew that membership of a certain union was a condition for being employed with the enterprise (Section 2, subsections 2 and 3 of the Act). On this basis the Governmental Committee of the Social Charter in its 14’th (1999) and 15’th report (2000) recommended to the Committee of Ministers that a recommendation in this respect be adopted with regard to Denmark. On 7 February 2001 at the 740’th meeting of the Minister’s Deputies, lacking the majority required, the proposal for the said recommendation was not adopted. In its Conclusions XVI-1 the European Committee of Social Rights stated inter alia : “The situation in Denmark is not in conformity with Article   5 of the Charter for the following reasons: Closed shop clauses are permitted in national law as illustrated by the decisions of the Danish Supreme Court summarised in the report. Clauses or practices of this kind violate the right to freedom of association” Subsequently, in September 2002 the Danish Government informed the Governmental Committee of the European Social Charter of its intentions to introduce a bill prohibiting closed shop agreements. The Governmental Committee therefore decided to await the next assessment by the European Committee of Social Rights.   ILO   Conventions no. 87 and 98 under the International Labour Organisation protects inter alia the positive aspects of the freedom of association. As regards the issue of closed shop agreements the International Labour Organisation considers this as a national matter.   COMPLAINT 1. The applicant complains that his right to freedom of association, secured under Article 11 of the Convention, has been violated. 2. In his observations of 3   September 2001 the applicant furthermore complains under Article 14 of the Convention that he was discriminated against in comparison with other members of the trade union, which he was forced to join, insofar as he was denied full membership rights.     THE LAW 1. Article 11 of the Convention 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...” The Government claim that no interference or restriction has taken place with respect to the applicant’s right to freedom of association as protected by Article 11 of the Convention. In this respect they refer to the wording of and the preparatory notes to the said Article. Moreover, although acknowledging that Article 11 of the Convention encompasses a negative right of association to some extent, they maintain that such a right cannot be considered on an equal footing with the positive right. Notably, they submit that it cannot be contrary to Article 11 of the Convention to dismiss a person who does not want to be member of a particular trade union if the person was aware at the time of the engagement that such a requirement was a prerequisite for employment, or with specific reference to the situation described in the Sigurdur Sigurjónsson v. Iceland judgment of 30   June   1993, Series A no.   264, if the person at the time of his application for a licence to operate a taxi knew that membership of the association Frami was required by law. Thus, in the opinion of the Government the negative freedom of association, which is protected under Article 11 in relation to labour marked conditions, involves a protection against dismissal, or deprivation of licences, as a consequence of the requirement of membership of a trade union or an employers’ federation only when the requirement arises after the engagement /issue of licence. Therefore it must still be decisive whether the person in question was aware at the time of engagement/issue of the licence that membership was a condition of employment/issue of the licence. In the present case, the applicant was fully aware at the time of his employment as a holiday relief employee, even at the time when he filled in his application for the job, that employment was conditional upon a trade union affiliated with the LO. This cannot in the Government’s view be a failure of basic assumptions and accordingly none of the applicant’s rights under Article 11 of the Convention has been violated. Should the Court find that an interference has taken place the Government maintain that such is justified under Article 11 § 2 as it is prescribed by law, it pursues a legitimate aim, namely the “protection of the rights and freedoms of others“ and it is necessary in a democratic society. As to the latter the Government submit on the one hand that closed shop agreements are of limited scope in Danish labour market, less than 10 per cent of the labour marked is affected thereby. Moreover, closed shop agreement does not prevent the person in question from working within his profession at all. The Government know of no examples where employees in general have been barred from exercising their profession due to a closed shop agreement within a certain industry or a particular geographical area. On the other hand, closed shop agreements ensure that an employer does not undermine the collective agreement concluded, by hiring unorganised persons on terms other than those of the collective agreement, a risk existing first of all for unorganised employers. Thus, the Government allege, closed shop agreements are crucial and of essential importance to the trade unions and their members as part of the Danish labour market model based on the freedom of contract of strong workers’ and employers’ organisations, which has resulted in a well-organised, stable and flexible labour market, and the Government emphasise that an interference with the freedom of contract in the labour market, including closed shop agreements, would entail the risk of possibly undermining the foundation for a well-balanced and well ‑ functioning system. Finally, as regards the principle of proportionality, and recalling the wide degree of divergence between the domestic systems in the particular area under consideration, the Government maintain that a wide margin of appreciation should be afforded to the State thereby taking into account the sensitive character of the social and political issues involved in achieving a proper balance between the competing interest. The applicant maintains that there has been an interference with his rights as secured under Article 11 of the Convention as it must be interpreted in the light of “present-day conditions”. He endorses that such an interference has basis in Danish law, however in the applicant’s view the existence of closed shop agreements cannot be justified by any of the legitimate aims listed in Article 11 § 2 or be considered necessary in a democratic society. Thus, the applicant contends that a prohibition on closed shop agreement would have no influence to the detriment of negotiation of collective agreements. He refers to the experience from the vast majority of other Contracting States. Furthermore, he points out that the terms of a collective agreement in Denmark applies to all employees in a company, irrespective of whether a closed shop agreement has been concluded or not. Thus the risk, invoked by the Government, that employers undermine a collective agreement by hiring non-organised labour on terms worse than those of the collective agreement has presented no practical problem in Denmark. Moreover, as to the Government’s argument that closed shop agreements are crucial and of essential importance to the trade union and their members as part of the Danish labour market model based on the freedom of contract of strong workers’ and employers’ organisations, the applicant points out that the Danish labour market parties do not in any event independently negotiate all terms, as the Government in numerous examples though legislation have interfered and terminated an industrial dispute in which the parties have failed to reach an agreement. Also, the applicant maintains that the labour market conditions in Denmark already to a wide extent are regulated by legislation, and he finds that it is clear from the development of the European Community that more and more EU provisions will be introduced and implemented in Danish law. Accordingly, in his view the Danish labour market model is becoming less and less visible and he finds no basis for the Government’s statement that closed shop agreements contribute to stability in the Danish labour market. Also, the applicant contests the Government’s claim that no employees in general have been barred from exercising their profession due to a closed shop agreement within a certain industry or a particular geographical area. On the contrary, he submits that many members have been excluded from the labour market after having been fired due to their refusal to become member of a particular trade union, notably because other employers thereafter fear labour conflicts if they employ the person in question. Moreover, the applicant claims that in spite of the Act on Private Contributions to Political Parties and Disclosure of the Accounts of Political Parties, employees do not de facto have a possibility of subscribing to a “non ‑ political membership” of a trade union. Partly because such does not entail any reduction in the payment of membership fee to the specific trade union, and partly because the trade union’s financial contributions to one or more political parties are not limited to a fixed percentages of the membership fees, but usually derives from major funds raised by the trade union. In addition, trade unions provide a very extensive indirect political support in the form of services and general “opinion forming”. Taking these considerations into account, and recalling that the freedom of expression enshrined in Article 10 of the Convention is closely connected with the freedom of association secured under Article 11 of the Convention the applicant emphasises that due to the closed shop agreement concluded in the present case between FDB and SID, he was forced to pay subscription to the latter, which political views were alien to him, and he was accordingly prevented from joining a trade union with which he sympathised. The Court considers, in the light of the parties’ submissions that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35   § 3 of the Convention. No other ground for declaring it inadmissible has been established.   2.   As to the applicant’s complaint under Article 14 of the Convention the Court recalls that under the notion of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case the Court finds that in the proceedings before the Supreme Court the applicant failed to raise either in form or in substance the complaint that is made to the Court. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4. For these reasons, the Court unanimously Declares admissible , without prejudging the merits, the applicant’s complaint that his right to freedom of association, secured under Article   11 of the Convention, has been violated; Declares inadmissible the remainder of the application. Søren Nielsen   Christos Rozakis Deputy Registrar   President