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 6 September 2000, 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 1941 and living in Kolding, Denmark. She is represented before the Court by Mr Kåre Mønsted, a lawyer practising in Copenhagen, 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. After an interview held in January 1996 the applicant got a job as a telephone operator in a taxi company. She started the job on 4   March 1996, but not until 15   May   1996 was she provided with a written contract in which it was stated inter alia : “The terms of the employment will be regulated by the Act on salaried employees ( Funktionærloven ) and a collective agreement entered into with the Trade and Office Worker Union ( Handels- og Kontorfunktionærenes Forbund) .” The above collective agreement was entered into in 1995 between, on the one side, the employer and the Danish Taxi Union ( Dansk Taxi Forbund ) and, on the other side, the Trade and Office Worker Union, henceforth called HK and its local office in the area where the employer company is situated. According to the agreement the employer would only employ telephone operators and office workers who were members of HK. At the end of September   1996 the employer became aware that the applicant was not a member of HK, but of another trade union, and on 1   October   1996 the applicant was dismissed because she refused to become a member of HK. The applicant instituted proceedings before the High Court of Western Denmark ( Vestre Landsret ) against the employer, Danish Taxi Union, HK and its local office claiming compensation and requesting that they be ordered to recognise that her dismissal and the above closed shop agreement was unlawful. She alleged that since she was not aware of this agreement at the time of her employment the dismissal was a violation of section 2, subsection 1 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 ). Moreover, she alleged that the closed shop agreement itself violated Article   11 of the Convention as it allegedly allows an employer to require that an employee must be a member of an association or a specific association in order to obtain employment. By judgment of 13 August   1998 the High Court granted the applicant compensation in the amount of 151,087.90 Danish kroner (DKK) as it found it established that the applicant was not aware of the agreement at the time of her employment. Therefore, there had been an infringement of section 2, subsection 1 of the Danish Act on Protection against Dismissal due to Association Membership of 9   June   1982. However, as to closed shop agreements in general the court stated inter alia as follows: “Article 11   of the   European Convention on Human Rights secures the classical freedom of assembly and association including the right to form and join trade unions. By the British Rail judgment (the Young, James and Webster v. UK judgment, Series   A no. 44) it was established that in certain circumstances Article 11 also secures the negative right to freedom of association. This judgment resulted in the Parliament’s passing of the Danish Act on Protection against Dismissal due to Association Membership. Following the passing of this Act the Court of Human Rights has pronounced other judgments concerning the extent of Article 11 of the Convention. The applicant has submitted these judgments, notably the Sigurjόnsson v. Iceland judgment of 1993 in support of her claim that section 2, subsection 2 and subsection 3 of the Act on Protection against Dismissal due to Association Membership are at variance with Article   11 of the Convention. However, these last judgments have not resulted in any Danish Government Bills with a view to amend the Act on Protection against Dismissal due to Association Membership. On the contrary, the Minister of Labour recently ... declared in Parliament that it was the Government’s view that closed shop agreements do not infringe human rights and that Denmark does comply with its international obligations. The Danish Act of 1992 (No. 285 of 29   April   1992) incorporated the Convention on Human Rights into Danish law. According to the preparatory notes the incorporation did not intend to change the existing balance between the Danish Parliament and the Danish courts. Therefore, the Parliament still has a considerable discretion when laying down Danish law. Thus, since the Danish Act on Protection against Dismissal due to Association Membership was passed in order to comply with Article 11   of the   Convention, and since the exceptions mentioned in section 2, subsection 2 and 3 of the Act are formulated very precisely, and since a decision that sets aside or limits the existing possibility to enter into closed shop agreements would have far-reaching consequences for the Danish labour market, the High Court finds it appropriate to leave it to the legislature to decide whether the previous case-law from the Court of Human Rights concerning Article   11 does require an amendment of the Act on Protection against Dismissal due to Association Membership.” On appeal, the Supreme Court (Højesteret) on 12 May 2000 upheld the High Court’s judgment. In its reasoning the Supreme Court stated inter alia 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 11 of 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) and of 8 June 1999 (concerning application no. 52562/99 Sørensen v. Denmark ) the latest judgments from the Court of Human Rights give no reason to asses the lawfulness of closed shop agreements and their consequences any differently than what appears from the British Rail judgment. In the Supreme Court’s view neither does the Chassagnou and others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III).” Thus, as mentioned above, in two other cases, the Supreme Court decided by judgments of 6   May 1999 and 8 June 1999, respectively, 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 and found that closed shop agreements as such are not contrary to Article 11 of the Convention as the provision has been interpreted by the 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 wants 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 a limited extent does the Danish labour marked 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 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 The applicant complains, under Article 11 of the Convention, that she was dismissed from her job and that in the future she may be prevented from obtaining employment with her former employer as a result of the employer’s (and Danish Taxi Union) conclusion of a closed shop agreement with HK. Moreover, the applicant complains that the Danish legislation, by allowing closed shop agreements   within the private sector of the labour market, is in breach of Article   11   of   the Convention. THE LAW 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 submit that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. In this respect they point out that the applicant received compensation in the amount of DKK   151,087.90 as a consequence of the wrongful dismissal. Moreover, they contend that the applicant’s complaint that she is prevented from obtaining a job in the future with the Danish Taxi Union as a result of the closed shop agreement is of an abstract nature and that she cannot claim to be a potential victim. Finally, they recall that an applicant may not bring before the Court an actio popularis regarding the Danish legislation on closed shop agreement. The applicant disagrees reiterating that the compensation awarded by the Danish courts related to the breach of section 2, subsection 1 of the Danish Act on Protection against Dismissal due to Association Membership. Thus, the courts have not recognised that closed shop agreements as such violate Article 11 of the Convention. Consequently, the applicant alleges, her access to the labour market is substantially restricted. The Court notes that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention may depend on compensation being awarded on the basis of the facts about which he or she complains before the Court (see e.g. Andersen v. Denmark, application no. 12860/87 and Frederiksen and others v. Denmark, application no. 12719/87, both Commission decisions of 3   May 1988) and on condition that the domestic authorities have acknowledged, either expressly or in substance, the alleged infringement of the Convention. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see e.g. Eckle   v.   Germany judgment of 15 July 1982, Series A no. 51, p. 32 §§ 69 ff. and Jensen v. Denmark (dec.), no. 48470/99, 20   September 2001). Moreover, the Court recalls that whilst Article 33 of the Convention permits a High Contracting Party to refer to the Court "any alleged breach" of the Convention by another High Contracting Party, Article 34 requires that an individual applicant should be able to claim to be actually affected by the measure of which he or she complains. Article 34 may not be used to found an action in the nature of an actio popularis ; nor may it form the basis of a claim made in abstracto that a law contravenes the Convention (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33). The Court further observes that the conditions governing individual applications under Article 34 of the Convention are not necessarily the same as the national criteria relating to locus standi . National rules in this respect may serve purposes different from those contemplated by Article 34 and, whilst those purposes may sometimes be analogous, they need not always be (ibid., p. 19, § 36). Be that as it may, the Court has held that Article 34 of the Convention enables individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 21, § 42, and the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 13, § 27). In the present case by judgment of 13 August   1998 the High Court granted the applicant compensation in the amount of DKK 151,087.90 as it found that the dismissal had been wrongful, contravening section 2, subsection 1 of the Danish Act on Protection against Dismissal due to Association Membership of 9   June   1982, because the applicant was not aware of the closed shop agreement at the time of her employment. The applicant’s appeal to the Supreme Court did not relate to the amount of compensation awarded and before the Court she has not submitted that the compensation as such was inadequate for the wrongful dismissal. In these circumstances the Court finds that the Danish Courts complied with the conditions put forward by the Convention’s case-law: the applicant did not question the adequacy of the compensation awarded to her by the court, and the latter acknowledged the illegality of the dismissal. The Court further notes that before the domestic courts the applicant did not request that she be reinstated in her former job, although such a claim may be submitted pursuant to section 4 of the Act on Protection against Dismissal due to Association Membership. The Court notes that according to that section of the Act, continuation or restoring of the employment cannot be complied with if, in special cases and following a balancing of the interests of the parties, such is found obviously unreasonable. In this respect the Court also recalls that the granting of compensation in some circumstances may constitute an adequate remedy, in particular where it is likely to be the only possible or practical means whereby redress can be given to the individual for the wrong he or she has suffered. In these circumstances the Court is not called upon to address the problem whether under specific conditions a remedy, leading to restitutio in integrum may be required by the Convention (see e.g. the above quoted Commission decisions; Andersen v. Denmark and Frederiksen and others v . Denmark ). With regard to the applicant’s complaint that she is prevented from obtaining a job in the future with the Danish Taxi Union as a result of the closed shop agreement the Court notes that the applicant worked in the field of telephone operating. Moreover, it reiterates that in Denmark closed shop agreements are unlawful in the public sector labour market and that 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. 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 claims that this estimation probably is somewhat below the actual figure. In these circumstances, and since nothing else in the case, as it has been presented before the Court, indicates that the applicant is continuously and directly running a risk of being prevented from obtaining a job or of being dismissed from a job within her field of work as a consequence of the legality of closed shop agreements within the private sector of the labour marked in Denmark, the Court considers that this part of the complaint has the nature of an actio popularis by means of which the applicant seeks a review in abstracto of the contested legislation in the light of the Convention. Accordingly, the Court finds that the applicant cannot claim to be a victim of a violation of Article 11 of the Convention and it follows that the application must be rejected under Article 35 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Søren Nielsen   Christos Rozakis Deputy Registrar   President