CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 octobre 2013

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s7ED9CCD5 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; text-align:left } .sA36B60A1 { font-family:Arial; font-style:italic } .sBF0FE613 { width:36pt; text-indent:0pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sDE1FCA9C { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s9C23B4C7 { width:6.99pt; display:inline-block } .sE9FED4F7 { width:166.58pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s5A070004 { width:213.96pt; display:inline-block }   THIRD SECTION DECISION Application no. 10684/04 THE FAMILIA TRADE UNIONS GENERAL FEDERATION against Romania The European Court of Human Rights (Third Section), sitting on 8   October   2013 as a Chamber composed of: Josep Casadevall, President,   Alvina Gyulumyan,   Corneliu Bîrsan,   Ján Šikuta,   Nona Tsotsoria,   Kristina Pardalos,   Johannes Silvis, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 28 January 2004, 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 1.     The applicant organisation, The Familia General Federation of Trade Unions ( Federaţia Generală a Sindicatelor Familia ), is an association established under Romanian law with its main office in Bucharest. It was represented before the Court by Mr D. Cristescu, its President. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant organisation is a federation of trade unions based in Bucharest which gained legal personality in 1990. 5.     In 1996 several trade unions, members of the STICEROM Federation of Trade Unions (“STICEROM”), an organisation which enjoyed power of representation for the ceramics, glass and pottery branch of the industry, left the said federation of trade unions and joined the applicant organisation. 6.     On 10 May 2000 the collective bargaining agreement for the ceramics, glass and pottery branch of the industry entered into force. The collective agreement had been bargained between the STICEF Owner’s Association (“STICEF”), and STICEROM and was valid for five years. 7.     The applicant organisation had not been party to the collective bargaining process and the resulting collective agreement because in May   2000 it did not meet the legal requirement to enjoy power of representation for the ceramics, glass and pottery branch of the industry and could not therefore engage in collective bargaining. 8.     By a final judgment of 8 January 2001 the Bucharest County Court held that the applicant organisation’s membership represented at least seven per cent of the total number of employees at industrial branch level and acknowledged the applicant organisation’s right to enjoy power of representation for the ceramics, glass and pottery branch of the industry. 9.     On 15 February and 12 April 2002 the applicant organisation sent letters to STICEF, informing it that under section 17(1)(b) of Law   no.   130/1996 it considered that it was entitled to take part in meetings concerning the review of the collective agreement covering the ceramics, glass and pottery branch of the industry. It also attached its ideas and proposals for the amendment of the collective agreement. 10.     On 24 April 2002 STICEF informed the applicant organisation that they agreed that its representatives should be able to attend meetings concerning the review of the collective agreement. At the same time they asked the applicant organisation to contact STICEROM in order to jointly designate a negotiating team because only one collective bargaining agreement could be signed at industry branch level. 11.     On 13 and 17 May 2002 the applicant organisation contacted STICEROM and informed them of their power of representation at industry branch level, their intention to meet to designate a joint negotiating team for the meeting concerning the review of the collective agreement and the fact that STICEF had accepted their involvement in the negotiations. It also attached its ideas and proposals for the amendment of the collective agreement. 12.     On 16 May 2002 STICEROM informed the applicant organisation that they had previously decided not to cooperate with them on account of unfriendly actions undertaken by the representatives of the applicant organisation against STICEROM. However, they were prepared to reconsider that decision, given the common interests pursued by both organisations. 13.     On 4 October 2002 the applicant organisation informed the Romanian Ministry of Labour and submitted proof that it enjoyed power of representation for the ceramics, glass and pottery branch of the industry. 14.     On 29 October 2002 the applicant organisation invited STICEF to organise the meeting at which the collective agreement would be reviewed in respect of salary rights, working time and working conditions. The meeting was to take place at STICEF’s main office in Bucharest on 11   November or on any other date between 11 and 30 November 2002. 15.     On 5 November 2002 STICEF informed the applicant organisation of the address and the date set for the review meeting, namely 15   November   2002. They also asked the applicant organisation to contact STICEROM and to agree on a common position. 16.     On 7 November 2002 the applicant organisation contacted STICEROM and informed them that STICEF had agreed that its representatives should attend the review meeting scheduled for 15   November 2002 and invited STICEROM’s representatives to discuss a common strategy for the said meeting. 17.     On 3 February 2003 the applicant organisation asked the Romanian Ministry of Labour to inform it as to whether any amendments to the collective agreement had been registered with the Ministry since January   2002. They stated that although they had attended the meeting of 15   November 2002 and the parties present had decided to adjourn and meet again in order to negotiate amendments to the collective agreement, the second meeting had never taken place. Consequently, the applicant organisation sought the Ministry of Labour’s assistance to obtain the desired information and informed the Ministry that if its right to take part in collective bargaining had been interfered with it would bring court proceedings. 18.     On 17 February 2003 the applicant organisation brought proceedings against STICEF and STICEROM, seeking the annulment of the amendment to the collective agreement concluded by them during the second part of the review meeting of 15 November 2002, which the applicant organisation had not attended. Moreover, they asked for a court order forcing STICEF and STICEROM to renegotiate the amendment and to acknowledge the applicant organisation as a bargaining partner in respect of the said amendment to the collective agreement. Finally, they claimed damages for the employees whose interests had not been represented at the meeting. 19.     On 4 March 2003 the Romanian Ministry of Labour informed the applicant organisation that between 15 May 2001 and 6 December 2002 the collective agreement had been amended four times. 20.     By a judgment of 9 April 2003 the Bucharest County Court dismissed the applicant organisation’s action on the grounds that it had not been party to the collective bargaining process and the resulting collective agreement in 2000. The court acknowledged that the applicant organisation enjoyed power of representation for the ceramics, glass and pottery branch of the industry. However, it held that, under Article 969(2) of the Romanian Civil Code, the collective agreement could only be amended as a result of an agreement between the original parties to that agreement. Moreover, the applicant organisation could only have attended the review meeting of 15   November 2002 if both parties to the collective agreement had agreed to it, but only STICEF had accepted the applicant organisation’s participation in negotiations. Thus, the court could not substitute its will for that of the two parties to the collective agreement concerning the participants in the amendment negotiation. The applicant organisation appealed on points of law ( recurs ) against the judgment on the grounds that, among other things, its right of representation in respect of collective bargaining agreements had been breached. 21.     By a final judgment of 30 July 2003 the Bucharest Court of Appeal dismissed the applicant organisation’s appeal on points of law. It held that the first instance court had not misinterpreted the principle set out in Article   969(2) of the Romanian Civil Code. Contrary to the applicant organisation’s argument, the court held that the Article 969(2) not only regulated civil contracts but applied to any agreement, including collective bargaining agreements. The same principle was reiterated by Article 7(2) of Law no. 130/1996. While STICEF had agreed to the applicant organisation attending the negotiation meeting, the applicant organisation’s request to meet with STICEROM’s representatives had gone unanswered, meaning that STICEROM had refused to accept its involvement in the meeting. The applicant organisation had attended the first part of the meeting of 15   November 2002, at which the collective bargaining agreement had been amended, but its representatives had not attended the second part of the said meeting later that day. The meeting had been adjourned in order for the representatives of the two federations of trade unions to reach a common position. However, the applicant organisation had failed to prove that it had not been notified of the location of the second part of the meeting and had failed to provide reasons why the two federations of trade unions had not discussed a common strategy. The collective agreement had been modified four more times between May 2001 and December 2002, but the applicant organisation had not asked to take part in the meetings concerning those amendments. The international conventions relied on by the applicant organisation were not relevant to the case, as collective bargaining and the applicant’s rights to freely exercise its union rights had not been impeded. B.     Relevant domestic law 22.     Article 3(3) and (4) of Law no. 130/1996 of 16 October 1996 on collective bargaining agreements provides that collective agreements are subject to review on key issues such as salaries, working time and working conditions after at least one year following the signature of the collective agreement. 23.     Article 7(2) of Law no. 130/1996 provides that lawfully concluded collective bargaining agreements have the force of law between the contracting parties. 24.     Article 17(1)(b) of Law no. 130/1996 provides that collective bargaining agreements, at industry level, shall be negotiated by a trade union organisation which meets all of the following three conditions: has legal status as a trade union federation; has organisational and financial independence; and whose membership represents at least seven per cent of the total number of employees at industry level. 25.     Article 26(1)(c) of Law no. 130/1996 provides that collective bargaining agreements shall not be registered if they have not been signed by the representatives of all the parties present at the negotiations. 26.     Article 26(2)(a) of Law no. 130/1996 provides that collective bargaining agreements shall be registered without all the signatures of the representatives of the parties present if the representative trade union organisations were invited to the negotiations and did not attend. 27.     Article 969 of the former Romanian Civil Code provides that a lawful agreement has the force of law between the contracting parties. It can be annulled on the basis of the mutual agreement of the contracting parties or in the instances provided for by law. COMPLAINT 28.     Relying on Article 11 of the Convention, the applicant organisation complained that the final judgment of 30 July 2003 of the Bucharest Court of Appeal had denied its lawful right to participate in collective bargaining on 15 November 2002 in order to amend the existing collective agreement at industry branch level and that it had consequently been prevented from representing its members in collective bargaining at industry branch level and thus from defending their rights and interests. THE LAW 29.     The applicant organisation complained that the final judgment of 30   July 2003 of the Bucharest Court of Appeal had denied its lawful right to participate in collective bargaining in order to amend the existing collective agreement at industry branch level, in breach of its rights guaranteed by Article 11 of the Convention, which 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” 1.     The arguments of the parties (a)     The Government 30.     The Government argued that the applicant organisation had been notified of the date and location of the meeting organised for the negotiation of the amendment to the collective agreement and therefore had never been obstructed from taking part in the negotiations. Its absence from the second part of the meeting had resulted from its own inaction, in particular its failure to agree a consensus with the other federation of trade unions. 31.     The Government submitted that the applicable domestic legislation provided for a variety of ways in which a trade union could defend the interests of its members, which were not limited to taking part in collective bargaining. They also contended that neither STICEF nor STICEROM had refused in absolute terms to allow the applicant organisation’s involvement in the negotiation of the amendment. Moreover, the domestic legal provisions in force at the time had not impeded the applicant organisation from attending the negotiation meetings and its representatives had attended the initial stages of the meeting of 15 November 2002. Its representatives had failed to attend the second part of the meeting held on the same date at which the amendment to the collective agreement had been concluded and the applicant organisation had never argued that it had been unaware that the second part of the meeting was to take place later that day. In addition, the applicant organisation had failed to provide any reasons why their representatives had failed to attend the second part of the meeting and had not submitted any proof supporting their allegation that the original parties to the collective agreement had negotiated in secret. Furthermore, the conclusion of an agreement was not mandatory and the State had not been party to the meeting as an employer and therefore could not be held responsible for the applicant organisation’s absence from the second part of the meeting. 32.     The Government also argued that trade unions exercising power of representation at industry branch level are required by law to appoint a single representative to represent their interests in collective bargaining. However, the applicant organisation had failed to prove that it had made any effort to establish a dialogue with the other federation of trade unions in order to reach a common position in circumstances in which the authorities had not been able to become involved. 33.     They further contended that the applicant organisation had not clearly stated what their proposals concerning the clauses of the collective agreement which they had intended to negotiate would have been, the way it had wished to defend its members’ interests or the part(s) of the amendment negotiated between STICEF and STICEROM with which it disagreed. 34.     The Government submitted that although the collective agreement in question had been amended six times between May 2001 and November   2004, the applicant organisation had only sought to annul the amendment negotiated in November 2002. 35.     Having regard to the foregoing considerations and the fact that the domestic courts had examined the proceedings opened by the applicant organisation in the light of the applicable domestic legal provisions, the Government asserted that there had been no interference with the applicant organisation’s rights guaranteed by Article 11 of the Convention. Even assuming that the applicant organisation’s rights had been interfered with, this interference had been provided for by Law no. 130/1996 in a clear and foreseeable way, had pursued a legitimate aim in so far as it had sought to protect the contractual interests of the original parties to the collective agreement and had been proportionate. (b)     The applicant organisation 36.     The applicant organisation argued that although its representatives had been present and had attended the meeting on 15 November 2002, no negotiation had taken place, no documents had been made public, no agenda of the negotiation meeting or of other meetings had been made available and no minutes of the meeting had been signed off. It submitted that on that date the parties had agreed that the changes to the collective agreement should be discussed at a future meeting, to which the applicant organisation had never been invited. Thus in February 2003 the applicant organisation had contacted the Romanian Ministry of Labour to determine whether any amendments to the collective agreement had been registered with the Ministry. 37.     The applicant organisation contested the Government’s argument that they had had a legal duty to appoint a common representative with the other federation of trade unions in order to participate in negotiations and argued that the said duty only applied to organisations failing to represent at least seven per cent of the employees in any given industry. In any event, they had contacted STICEROM in order to negotiate a common position but their letters had gone unanswered. 38.     The applicant organisation contended that their representatives had been prevented from attending the meeting at which the amendment had been negotiated because the two other parties to the negotiations had met behind closed doors at an undisclosed location. Moreover, Law   no.   130/1996 prohibited the registration of collective agreements if they had not been signed by all parties to the negotiation. While it did not dispute the fact that the original contract had been signed for five years, the applicant organisation argued that Romanian law did not prohibit individuals from becoming a party to an agreement at a later date. Moreover, domestic legislation designated employers and employees as parties to collective agreements and provided that employees’ interests could be represented in negotiations of collective agreements at industry level by federations of unions which met the cumulative requirements for representation. Even with the full knowledge of the legislation in force that the Romanian Ministry of Labour must have had, it had registered the amendment to the collective bargaining agreement negotiated in November   2002, although the applicant organisation had informed the Ministry on   4 October 2002 that it enjoyed power of representation at industry branch level and it had been clear that it had not signed the amendment to the agreement or the minutes of the negotiation meeting. 39.     The applicant organisation further argued that they had made all necessary efforts and contacted all the relevant parties and domestic authorities in order to make sure they were included in the negotiation process and thus able to defend their members’ rights. In addition, they had informed the relevant parties of their ideas and proposals concerning the amendment of the collective agreement. Using remedies other than court proceedings in order to exercise their union rights would have been ineffective, as the said remedies could only have applied in circumstances in which no collective agreement was in force. 40.     In addition, the applicant organisation had not been informed of the date and place of the second part of the meeting or any other additional review meetings and therefore had been unable to have its representatives attend those meetings. 2.     The Court’s assessment (a)     The relevant principles 41.     The Court reiterates that Article 11 of the Convention safeguards the freedom to protect the occupational interests of trade-union members by the union’s collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police v. Belgium, 27 October 1975, §   39, Series   A no.   19; Swedish Engine Drivers’ Union v. Sweden , 6 February 1976 §   40, Series A no.   20; and Schmidt and Dahlström v. Sweden , 6   February 1976, § 36, Series   A no.   21). 42.     The Court observes that the right to bargain collectively with the employer has become one of the essential elements of the “right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions (see Demir and Baykara v.   Turkey ([GC], no.   34503/97, § 154, 12 November 2008). If a State has failed to comply with its positive obligation to secure these rights to the applicants under domestic law, its responsibility will be engaged under Article 11 of the Convention (see Demir and Baykara v. Turkey , cited above, §   110). 43.     As to the substance of the right of association enshrined in Article   11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see National Union of Belgian Police , cited above, § 39; Swedish Engine Drivers’ Union , cited above, §   40; and Schmidt and Dahlström , cited above, § 36). (b)     Application of the relevant principles to the present case 44.     The Court notes that the Government disagreed as to whether the circumstances of the present case had involved direct intervention by the State, given that the State had not been party to the negotiation meeting as an employer and therefore could not be held responsible for the applicant organisation’s absence from the meeting. It considers that it is not necessary to rule on this issue, as the responsibility of the Romanian State would, in any case, be engaged if the matters complained of resulted from a failure on its part to secure to the applicant organisation under domestic law the rights set forth in Article 11 of the Convention (see Wilson, National Union of Journalists and Others v. the United Kingdom , nos.   30668/96, 30671/96 and 30678/96, §   41, ECHR 2002 ‑ V). 45.     The Court also notes that according to the available evidence the collective bargaining agreement negotiated between STICEF and STICEROM had been amended four times between May 2001 and December 2002. Although it appears that it did not attend any of the said meetings, the applicant organisation contested before the domestic courts and subsequently complained before the Court only about its inability to take part in the amendment negotiation that took place during the second part of the meeting of 15 November 2002. 46.     The Court further notes that the parties offered conflicting points of view as to whether there had been an interference with the applicant organisation’s rights guaranteed by Article 11 of the Convention. On the one hand, the Government asserted that the representatives of the applicant organisation had not been present at the second part of the meetings held on 15 November 2002 as a result of their own failure to act and therefore the applicant organisation could not claim that there had been an interference with its Convention rights. On the other hand, the applicant organisation, while contesting the Government’s submissions, contended that it had not been informed of the date and the location of the second part of the negotiation meeting and although it had notified the relevant domestic authorities about its representation mandate at industry level the authorities had registered the agreement negotiated on 15 November 2002, even though it had not been signed by the applicant organisation. 47.     The Court observes that it is undisputed between the parties that the applicant organisation was fully aware that the meeting concerning the negotiation of amendments to the collective bargaining agreement signed in 2000 was scheduled to take place on 15 November 2002. In addition, the applicant organisation acknowledged that its representatives had attended the first part of the meeting and that all those present had agreed to adjourn the meeting. 48.     The Court further observes that the reasons for suspending the meeting appear to have been of a practical nature, in particular to allow the two trade union federations attending the meeting to agree a common strategy. However, there is no evidence in the file that the applicant organisation was unaware of the date and location of the second part of the meeting, which according to the findings of the domestic courts was held on the same date. While it is undisputed that its representatives did not attend the second part of the meeting, in the absence of any conclusive proof the Court is unable to presume the reasons that led the applicant organisation’s representatives not to attend the second part of the meeting. In this regard the Court notes that it does not appear from the available evidence that the applicant organisation attempted to inform itself of the date, time or location of the second part of the meeting from STICEF or STICEROM prior to its letter addressed to the Ministry of Labour in February 2003 and that it did not argue either before the Ministry or before the domestic courts that the reason for its failure to return to the negotiating table had been its inability to agree on a common strategy with STICEROM on account of the latter’s refusal to cooperate with it. 49.     Moreover, taking into account the domestic legal provisions, the Court does not consider the fact that the domestic authorities registered the amendment to the collective agreement negotiated on 15 November 2002 to be arbitrary, having regard to the fact that the applicant organisation had not been party to the negotiation and its signature was therefore not required on the document. 50.     In these circumstances, having taken note of the reasons advance by the domestic courts which do not appear arbitrary and the repetitive nature of the review process of the collective bargaining agreement, and in the absence of conclusive proof as to the particular reasons that led the applicant organisation not to attend the second part of the meeting of 15   November 2002, the Court, on the basis of the available evidence, cannot conclude that there was an interference with the applicant organisation’s rights guaranteed by Article 11 of the Convention. It follows that the applicant organisation’s complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President