CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 novembre 2004

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Costa , President ,   Mr   A.B. Baka ,   Mr   R. Türmen ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni ,   Mrs   E. Fura-Sandström, judges , and   Mrs   S. Dollé, Section Registrar , Having regard to the above application lodged on 17 August 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, the Swedish Transport Workers' Union ( Svenska Transportarbetareförbundet ), is a trade union with its headquarters in Stockholm. It was represented before the Court by Mr K. Junesjö, a lawyer practising in Stockholm. The respondent Government were represented by Mrs E. Jagander, of 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. Since 1976 there has been a clause in the collective labour agreement ( kollektivavtal – “the agreement”) between the Swedish Transport Workers' Union (“the Union”) and the Swedish Association of Newspaper Publishers ( Svenska Tidningsutgivareföreningen – “the Association”) which reads as follows: “Companies which are bound by this collective agreement and hire a contractor must draw up a separate contract with the Swedish Transport Workers' Union². ... [Footnote 2:] Distribution work on foot, by bicycle or by car may not be carried out by contractors.” The clause was introduced on the initiative of the Union, under threat of industrial action, with a view to preventing the agreement's clauses on salaries being circumvented by member companies of the Association hiring contractors not covered by the agreement. According to the Union, the clause served an important purpose in that it protected a weaker party from being forced to abandon the status of an employee covered by the social-security system and become a contractor not covered by this system. In 1995 T., a company belonging to the Association, hired a contractor, the L. company, to carry out the distribution of newspapers by car in a district where a Union member had previously performed that task. As the Union considered that this action violated the relevant clause in the agreement, it sued the Association and T. before the Labour Court ( Arbetsdomstolen ) in 1996, after negotiations between the parties had failed. The Association and T. claimed that the clause adversely affected competition in the newspaper-distribution market and thus violated the Competition Act ( konkurrenslagen, SFS 1993:20). On 16 September 1998 the Labour Court, by seven votes to two, found for the Union, inter alia rejecting the argument that the disputed clause infringed the Competition Act. The minority considered that the clause was incompatible with section 6 of the Act. In 1996 the L. company complained to the Swedish Competition Authority ( Konkurrensverket ), claiming that the clause in question violated the Competition Act in that it prohibited the use of contractors and thus restricted competition in a manner contrary to section 6 of the Act. The Competition Authority heard evidence from the Association, T. and four other member companies, as parties to the case. The Union was given the opportunity to submit its observations on the case but was not formally a party to the proceedings. In a decision of 19 February 1999 the Competition Authority first observed that its examination of the case was limited to considering whether the decision by the Association and its member companies to include the clause in the agreement with the Union was contrary to section 6 of the Competition Act. It then went on to consider the newspaper-distribution market, and the restrictive effects which the clause had on that market. While taking note of the Labour Court's judgment, the Competition Authority found that the decision had in effect noticeably hindered, limited or made difficult competition in that market and therefore violated section 6 of the Competition Act. As a consequence, the Association and its member companies were ordered, under section 23 of the Competition Act, to discontinue applying the decision in question. Thus, in effect, the clause became invalid. Under section 60 of the Competition Act, only a company affected by the Competition Authority's decision could lodge an appeal against it to the Market Court ( Marknadsdomstolen ). No appeal was lodged against the decision of 19 February 1999. B.     Relevant domestic law The rules regulating competition practices in Sweden are found in the Competition Act, whose purpose, as set forth in section 1, is to eliminate and counteract obstacles to effective competition in the field of production of, and trade in, goods, services and other products. The Act does not apply to agreements between employers and employees regarding terms of employment (section 2). As regards anti-competitive cooperation between companies, section   6 provides: “Without prejudice to decisions taken under section 8 or 15, or to sections 13, 17, 18 (c), or 18 (e), agreements between companies shall be prohibited if they have as their object or effect the prevention, restriction or distortion of competition in the market to an appreciable extent. This shall apply, in particular, to agreements which: ... 2. limit or control production, markets, technical development, or investment; 3. share out markets or sources of supply; ....” Section 7 of the Act provides that any agreements, or provisions included in agreements, that are prohibited under section 6 are void. Furthermore, section 23 states that the Competition Authority may require a company to put an end to an infringement of any of the prohibitions contained in section 6. In accordance with section 3(3), the provisions of the Act relating to agreements also apply to decisions by an association of companies. At the material time, under section 60 an appeal could be lodged against a decision taken by the Competition Authority but only by a company which had been affected by it. By an amendment effected on 1 April   2000, the word “only” was deleted. Under section 22 of the Administrative Procedure Act 1986 ( förvaltningslagen ), a person who was adversely affected by a decision taken by an administrative authority could appeal against it. The Act applied to the handling of administrative cases by the administrative authorities and by the courts (section 1). If another Act contained a provision that differed from the former legislation, that provision should apply (section 3). Since 1 January 1995 the Convention has been incorporated into Swedish law by an ordinary statute, namely the Act on the Implementation of the European Convention on Human Rights and Fundamental Freedoms ( lagen om den europeiska konventionen angående skydd för de mänskliga rättigheterna och de grundläggande friheterna ). The Act was given special status by the enactment of a provision in Chapter 2, Article 23, of the Instrument of Government ( regeringsformen) , which forms part of the Swedish Constitution, to the effect that no statute or other provision may be enacted which contravenes Sweden's undertakings under the Convention. Chapter 11, Article 14, of the Instrument of Government provides: “If a court or other public body finds that a provision conflicts with a rule of fundamental law or other superior statute, or finds that a procedure laid down in law has been disregarded in any important respect when the provision was made, the provision shall not be applied. If the provision has been approved by Parliament ( Riksdag ) or by the Government, however, its application shall be waived only if the error is manifest.” COMPLAINTS The applicant trade union (“the Union”) complained under Articles 6 and 13 of the Convention that its right of access to an independent and impartial tribunal had been violated, as had its right to an effective remedy, since it had had no legal remedy to challenge the Competition Authority's decision even though the decision had adversely affected the Union and its members. The Union further complained that its right to freedom of association under Article 11 had been violated in that the Competition Authority's decision to invalidate the clause had removed the possibility for the Union to ensure the continued protection of its members' interests in this matter through negotiation or industrial action. THE LAW A.     Whether the applicant union was a victim The Court notes that it was not disputed before it that the Union could claim to be a “victim” for the purposes of Article 34 of the Convention with respect to the alleged violations under the Convention. In the Court's view, the Union could clearly claim to be a “victim” in respect of its complaint under Article 6 § 1 about lack of access to a court to challenge the Competition Authority's decision. It is further satisfied that this was also the case with regard to the Union's complaint that the outcome of the proceedings before the Competition Authority was incompatible with Article 11 of the Convention (see National Union of Belgian Police v. Belgium , judgment of 27 October 1975, Series A no. 19; Swedish Engine Drivers' Union v. Sweden , judgment of 6 February 1976, Series A no. 20; UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002-I; and Federation of Offshore Workers' Trade Unions and Others v. Norway (dec.), no. 38190/97, ECHR 2002-VI). The same holds good for the Union's complaint under Article 13 about the absence of an effective remedy in respect of that outcome. B.     Whether the applicant had exhausted domestic remedies The Government requested the Court to declare the application inadmissible on the ground that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. It was true that section 60 of the Competition Act in its version in force at the relevant time had not provided for a right of judicial appeal against the Competition Authority's decisions by legal entities other than companies affected by the decisions. However, in so far as a decision affected other entities, such as a trade union, it was evident that this provision in section 60 was incompatible with Article   6   § 1 of the Convention. Therefore, in accordance with Chapter 11, Article   14, of the Instrument of Government, section 60 of the Competition Act should not have been applied to the applicant's case. The Government referred to a number of cases in which the Swedish courts had set aside provisions of national regulations and directives as being incompatible with statutory law. Moreover, a right to appeal could have been asserted on the basis of the Administrative Procedure Act and general principles of administrative law. The applicant union disputed the above contention. It submitted that, despite the incorporation of the Convention into domestic Swedish law, it would not have been possible effectively to pursue an action before a Swedish court with a claim that a clear statutory provision had to be set aside as being incompatible with the Convention. Moreover, it was clear from sections 1 and 3 of the Administrative Procedure Act that the latter did not apply to disputes under the Competition Act, which contained its own procedural rules that applied as the lex specialis . The Court first notes that section 60 of the Competition Act expressly provided that only a company that was affected by the Competition Authority's decision could lodge an appeal with the Market Court. Thus it clearly followed from the wording of this provision that the Union could not appeal to the Market Court. The national case-law relied on by the Government covered, almost exclusively, instances of subsidiary legislation having been set aside on account of a conflict with statutes; none of it concerned a conflict between a statute and the Convention. Nor do their arguments based on the Administrative Procedure Act and general administrative law seem convincing. On the evidence before it, the Court finds it improbable that the Market Court or any other court would have set aside the express limitations on judicial appeal laid down in section 60 of the Competition Act because they conflicted with the Convention. The Court finds, therefore, that it has not been shown that there existed in practice under national law an effective remedy that the Union could have used against the Competition Authority's decision (see Akdivar and Others v.   Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1210-11, §§ 67-69). Against this background, the Court concludes that the Union did not have an effective domestic remedy available in respect of the Competition Authority's decision of 19 February 1999. It accordingly rejects the Government's submission that the Union failed to exhaust domestic remedies. C.     The complaint under Article 6 § 1 of the Convention The applicant union complained that its lack of access to a court under Swedish law to challenge the Competition Authority's decision of 19 February 1990 had violated Article 6 § 1 of the Convention, which, in so far as is relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” The Government, in the event that the Court should reject their submission that the applicant had failed to exhaust domestic remedies, conceded that there had been a violation of Article 6 § 1 of the Convention. The Court, having regard to the parties' submissions, considers that the complaint about the lack of access to a court raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaint inadmissible have been established. D.     The complaint under Article 11 of the Convention The Union complained that, in breach of Article 11 of the Convention, the Competition Authority's decision of 19 February 1999 declaring the clause in question invalid had undermined the Union's possibility of ensuring the continued protection of its members' interests in this matter through negotiation or industrial action. In so far as is relevant, Article   11 reads as follows: “ 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 Union submitted that the national authorities were not entitled to interfere, either by way of annulment or amendment, with collective labour agreements. The Union relied on Conventions nos. 87 and 98 of the International Labour Organisation. In the instant case the authorities had interfered in a manner that had favoured the employers' side, excluding the employees' side from the process under the Competition Act. Unlike the fundamental right to freedom of association, competition law was not embodied either in the Swedish Constitution or in the Convention. The relevant clause, which the Competition Authority had set aside, had been aimed at preventing “social dumping” as regards newspaper distributors' terms of employment, and was purely a matter of trade-union activity protected by freedom of association under Article 11 of the Convention. The Government requested the Court to declare the complaint inadmissible as being incompatible ratione materiae . They argued that no right to collective bargaining could be derived from Article 11, let alone a right to enter into a collective labour agreement on a particular matter or to maintain such an agreement in force in all circumstances. The Government pointed out that the impugned measure had been taken by a specialised agency which was entrusted with the task of ensuring compliance with domestic anti-competition legislation and had particular expertise in an area that was ultimately of vital importance for the overall well-being of the country. The purpose of the Competition Act was to eliminate and counteract obstacles to effective competition in production, trade and services. This was crucial for Sweden's market economy and a prerequisite for Sweden's membership of the European Union. The prohibition clause had restricted the freedom of Sweden's five largest newspaper distributors. It had hindered established companies from acting as sub-contractors and had placed obstacles in the way of small businesses wishing to start small-scale newspaper distribution in the same market, contrary to the general good promoted by free and fair competition. The Court reiterates that Article 11 § 1 includes trade-union freedom as a specific aspect of freedom of association. According to the Court's case-law, the words “for the protection of his interests” show that the Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action, the conduct and development of which the Contracting States must both permit and make possible, as well as a right for the trade union to be heard. Although this provision does not secure any particular treatment of union members by the State, such as a right to conclude a particular collective agreement (see Gustafsson v.   Sweden , judgment of 25 April 1996, Reports 1996-II, pp. 652-53, § 45), collective bargaining and collective agreements are certainly among the most important of the means enabling trade unions to strive for the protection of their members' interests (see Swedish Engine Drivers' Union , cited above, pp. 14-16, §§ 39-40; Schmidt and Dahlström v. Sweden , judgment of 6   February 1976, Series A no. 21, pp. 15-16, §§ 34-36; UNISON (dec.), cited above; and Federation of Offshore Workers' Trade Unions and Others , cited above). In the present case, the Court notes in particular that the applicant union, after having threatened to take industrial action, had in fact obtained, in 1976, the inclusion of a protection clause in the relevant collective labour agreement. This clause was aimed at preventing the circumvention of salary arrangements by member companies hiring contractors not covered by the agreement. It is significant that the clause remained effective for over twenty years, until 19 February 1999, when the Competition Authority ordered member companies to discontinue its application, finding that it hampered competition in a manner contrary to section 6 of the Competition Act. While, as noted above, the Court recognises the importance of collective agreements as a means of protecting union members' interests, Article 11 of the Convention does not guarantee a right for a trade union to maintain a collective agreement on a particular matter for an indefinite period. In the Court's view, the matters complained of were not such as to give rise to an issue under this provision. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4. E.     The complaint under Article 13 of the Convention The Union further complained that it had not been afforded an effective remedy as guaranteed by Article 13 of the Convention in respect of its arguable claim of a violation of Article 11. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] 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 disputed the applicability of this provision. The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its considerations above under Article 11 of the Convention, the Court does not find that the applicant Union had an arguable claim for the purposes of Article   13, which therefore does not apply (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, p. 23, § 52). It follows that this part of the application is incompatible ratione materiae for the purposes of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant union's complaint under Article 6 § 1 of the Convention concerning a lack of access to a court; Declares the remainder of the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President