CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 janvier 2023

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font-size:10pt } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s5749FA4E { width:31.55pt; display:inline-block } .s5B8EC978 { width:144.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   SECOND SECTION CASE OF HOPPEN AND TRADE UNION OF AB AMBER GRID EMPLOYEES v. LITHUANIA (Application no. 976/20)     JUDGMENT Art 14 (+ Art 11) • Legal framework and judicial review providing adequate safeguards against discriminatory dismissal of trade union leader on grounds of character, behaviour or working relationships • Dismissal on such grounds not inherently contravening the rights of trade unions and their members • Art 11 not prohibiting dismissal of a member or leader of a trade union without the union’s consent • Applicants’ failure to establish a prima facie case of discrimination on grounds of trade-union membership • Shortcomings of the proceedings before the State Labour Inspectorate remedied by thorough review before administrative and civil courts • Applicants given adequate opportunity to present their case   STRASBOURG 17 January 2023 FINAL   17/04/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hoppen and trade union of AB Amber Grid employees v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Pauliine Koskelo,   Lorraine Schembri Orland,   Diana Sârcu,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   976/20) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Haroldas Hoppen (“the first applicant”), and the trade union of the employees of the company AB Amber Grid (“the second applicant” or “the applicant union”) on 24 December 2019; the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning Article 6 § 1, Article 11 and Article 14 of the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 13 December 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicants’ complaint that the first applicant had been dismissed from his job at the company AB Amber Grid because of his role in the activities of the second applicant – the trade union of that company’s employees. Both applicants complained that the first applicant’s dismissal had violated their right to freedom of association, that it had been discriminatory and that their complaints had not been duly considered at the domestic level. THE FACTS 2.     The first applicant was born in 1968 and lives in Kaunas. The second applicant was established in 2017 and registered in Vilnius. The applicants were represented by Ms   A.   Paškevičiūtė, a lawyer practising in Kaunas. 3.     The Government were represented by their Agent, Ms K. Bubnytė-Širmenė. Background 4.     In 1993 the first applicant started working as an electrical engineer at the Kaunas National Gas Enterprise. In 1998 the latter was reorganised into a new concern, named AB Lietuvos dujos ( Lithuanian gas ), and the first applicant signed a new employment contract, which was amended on various later dates. In 2013 the company was reorganised again and AB Amber Grid (hereinafter also “the company”) was established as a spin-off to continue its activities. In August 2013 the first applicant was appointed the head of the department that was in charge of protecting gas pipelines from corrosion. 5 .     On an unspecified date AB Amber Grid and its employees concluded a collective agreement, which was set to expire on 1 January 2018. 6.     In October 2016 the general assembly of the company’s employees established a work council, a body for collectively representing the employees in their relations with the employer. In November 2016 the first applicant was elected one of the fifteen members of the work council and one of four representatives of the employees to take part in collective bargaining, with the aim of reaching a new collective agreement. The collective bargaining process began later that same month and continued into the year 2017. 7.     On 14 September 2016 the new Labour Code was adopted; it was scheduled to enter into force on 1 July 2017. It provided that the right to take part in collective bargaining was the exclusive right of trade unions (see paragraphs   108 and 109 below). 8.     On 23 June 2017, in a meeting in which 113 employees of the company participated, it was decided to establish a trade union – the second applicant. The first applicant was one of fifteen persons elected to its board. The company’s management was notified of the establishment of the applicant union and the composition of its board. 9 .     In July and August 2017, the company and the applicant union each delegated four persons to represent them in the collective bargaining. The first applicant was among those delegated to represent the applicant union. The first meeting between the representatives of the two sides took place on 21 August 2017. 10.     According to the applicants, on 24 August 2017 a representative of the company orally suggested to the first applicant that he should leave his job, without giving any reasons for that suggestion. The first applicant asked that the proposal be presented to him in writing. 11.     On 28 August 2017 the first applicant received a written proposal from the company that he leave his job by mutual consent of the parties (see paragraph   102 below), with severance pay amounting to nine times his monthly salary. He rejected the proposal. 12.     On 3 October 2017, at a meeting of the applicant union’s board, the first applicant was elected the deputy head of the union. 13 .     On 14 November 2017 the company notified the first applicant that, in accordance with Article 168 § 3 of the Labour Code (see paragraph 111 below), it would seek the consent of the State Labour Inspectorate (hereinafter “the SLI”) to dismiss him “at the employer’s will” ( darbdavio valia ), with severance pay amounting to six times his monthly salary, as provided in Article   59 of the Labour Code (see paragraph   107 below). 14 .     While the collective bargaining was ongoing, the applicant union asked the company to extend the validity of certain provisions of the previous collective agreement (see paragraph 5 above), and the company agreed to do so. On 10 August 2018 the company and the applicant union signed a new collective agreement. 15.     The first applicant was dismissed on 26 June 2019 (see paragraph 59 below). Administrative proceedings Procedure before the SLI The company’s request 16 .     On 14 November 2017 AB Amber Grid lodged a request with the SLI, asking for its consent to the dismissal of the first applicant. It emphasised that the first applicant occupied a managerial position, which involved, inter alia , responsibilities relating to the distribution and use of the company’s financial resources, continuous cooperation with other departments, the supervision of employees in subordinate positions and the oversight of various projects that were planned or were being carried out. However, the first applicant was failing to properly fulfil his duties. 17 .     Firstly, AB Amber Grid submitted that the first applicant did not work well within a team and that he unilaterally made decisions that required coordination with other departments. Secondly, he failed to follow orders given by his supervisors, ignored their feedback and did not attempt to improve the quality of his work. Thirdly, he often failed to complete his tasks on time and did not implement the planned strategic plans or implemented them improperly, which led to the risk that the company might sustain losses. 18 .     The company provided several examples of situations in which the first applicant had delayed carrying out certain tasks, disregarded recommendations given by his supervisors and failed to appear in inter-departmental meetings, or where complaints about his attitude and behaviour had been received from the company’s contractors. In support of its assertions, the company provided copies of email correspondence between the first applicant and his supervisor dating from March 2015 and July-September 2017. 19 .     Accordingly, AB Amber Grid submitted that the first applicant was not suitable for the position that he held and that it would be against the company’s interests to keep him in his job. Although he was a recognised professional in his field, the aforementioned factors justified dismissing him. The company emphasised that, as demonstrated by the information provided in its request, its wish to dismiss the first applicant was based on objective reasons and was not related to his role in representing the company’s employees or to his membership in the applicant union. The applicants’ responses to the company’s request 20 .     On 20 November 2017 the SLI notified both applicants of the request lodged by the company and asked them to provide their opinions within five working days (see paragraph 111 below). The applicants asked the SLI to extend the time-limit but their request was refused. Both applicants submitted their opinions, in which they asked the SLI not to grant the company’s request. 21 .     The first applicant contended that the real reason why the company wished to dismiss him was his role in representing employees. He had been active in collective bargaining since November 2016, first as a member of the work council and later as a member of the applicant union, and had participated in numerous meetings with the company’s representatives. The collective bargaining had been difficult and there had been several points of contention between the representatives of employees and those of the company. The first applicant argued that official notice of the intention to dismiss him had been given in the midst of the collective bargaining in an effort to put pressure on the other members of the applicant union. 22 .     Furthermore, the first applicant stated that he had worked at the company for twenty-four years, during which time he had not been subjected to any disciplinary penalties but had rather been constantly commended and had undergone training to continue improving his qualifications. In 2015 and 2016 an external audit had assessed the performance of the managers within the company, including their skills of strategic thinking, leadership, efficiency, responsibility, team spirit, cooperation and communication. Of a maximum possible score of 7, the first applicant had been awarded 5.96 in 2015 and 6.15 in 2016. Moreover, an internal audit conducted in 2015 and 2016 had not found any important shortcomings in his and his department’s work. Therefore, the fact that after becoming a representative of the employees he had suddenly become unsuitable for his job and had to be dismissed indicated that the real reason for the intended dismissal was his role in the collective bargaining process. 23.     The first applicant also submitted that, under the Law on Trade Unions, an employer could not dismiss an employee who was a member of a trade union’s governing body without that trade union’s consent (see paragraph   115 below); however, in his case, the company had not requested such consent. 24 .     Moreover, the first applicant argued that he could not be dismissed under Article 59 of the Labour Code because that provision did not apply to companies that were owned by the State (see paragraph 107 below). He submitted that AB Amber Grid fell within the latter category, since the State held over 96% of its shares. 25 .     Lastly, he disputed the company’s allegations regarding the quality of his work (see paragraph 17 above). He commented on the examples provided by AB Amber Grid of situations in which he had allegedly failed to properly carry out certain tasks (see paragraph 18 above), challenging the company’s version of the facts, giving additional explanations for his actions and pointing out that the company had in fact awarded bonuses to employees for the completion of some of the tasks which had allegedly been carried out improperly. 26 .     The second applicant also disputed the company’s allegations about the quality of the first applicant’s work. It provided various additional facts which, in its view, testified to the fact that, in respect of the above-mentioned examples given by the company, the first applicant had in fact carried out those tasks within the respective time-limits and that his decisions had been based on sound reasons. The second applicant submitted written statements given by several employees of the company (the first applicant’s subordinates and the heads of several other departments) in which those employees described their positive experience of working with the first applicant. 27 .     The second applicant further stated that during his entire time of working in the company, the first applicant had never been disciplined or asked to explain the allegedly inadequate quality of his work. On the contrary, in 2013 AB Amber Grid had officially thanked him for his good work, and he had received regular bonuses for the good results achieved by the department that he had headed. The criticism of his work had started only during the process of collective bargaining, in which he had actively participated; that fact clearly indicated that the reason for the intended dismissal was his role in the representation of employees. Decision of the SLI 28.     On 11 December 2017 the SLI granted the company’s request and consented to the dismissal of the first applicant. It stated that, according to the case-law of the Supreme Court, the role of the SLI was limited to assessing whether the employer’s intention to dismiss the employee was related to the latter’s activity and membership in the trade union, but that it was not for the SLI to assess whether the grounds for dismissal provided by the employer were in accordance with the law or whether they were well founded (see paragraphs 126 and 127 below). 29 .     The SLI stated that, having analysed the company’s request and the applicants’ responses, it found no grounds to believe that the wish of AB   Amber Grid to dismiss the first applicant was in any way related to his trade union activities. Statements of a general nature, pointing to an employee’s role in the trade union, were not sufficient to find that the employee’s dismissal was related to such activities. The SLI stated that the first applicant’s arguments had been based solely on his own subjective perceptions and that neither of the applicants had presented any evidence that would lead the SLI to believe that the first applicant had been discriminated against on the grounds of his membership in the applicant union. 30 .     The decision of the SLI was sent to AB Amber Grid but not to the applicants; the latter stated that the first applicant had obtained it on his own initiative, after contacting the SLI. First set of proceedings before the administrative courts The parties’ submissions 31.     The first applicant lodged a complaint with the Vilnius Regional Administrative Court against the SLI, asking that the latter’s decision be quashed. 32 .     He firstly submitted that the SLI was not authorised by law to consent to the dismissal of an employee who was a member of a trade union’s governing body. He referred to Article 50 of the Constitution (see paragraph   95 below) and the case-law of the Constitutional Court, which emphasised the importance of trade unions’ autonomy and independence from the State (see paragraph 123 below). He also pointed out that Article   21§   1 of the Law on Trade Unions explicitly provided that the consent of a trade union was necessary in order for an employer to dismiss an employee who was a member of a trade union’s governing body (see paragraph 115 below). He contended that the Labour Code, which had entered into force on 1 July 2017, had not repealed the Law on Trade Unions. As a result, there was a conflict between Article 21 § 1 of that Law and Article   168   §   3 of the Labour Code, which obliged an employer to obtain the consent of the SLI before dismissing a member of a trade union. The first applicant argued that the Law on Trade Unions should be applied, as it was lex specialis . Accordingly, both AB Amber Grid and the SLI had acted contrary to the law – the former by failing to seek the consent of the applicant union and the latter by granting consent to the company. 33.     Secondly, the first applicant disputed the conclusion reached by the SLI that there had been no evidence demonstrating that the wish of AB Amber Grid to dismiss him had been related to his trade union activities. He submitted that, in accordance with the Constitutional Court’s case-law, an unfounded dismissal of a member of a trade union in and of itself amounted to discrimination (see paragraph 122 below). He argued that he had refuted all the arguments that the company had provided to justify his dismissal but that the SLI had not assessed any of the relevant facts and evidence that he had submitted (see paragraphs   21, 22 and 25 above). 34.     Thirdly, he submitted that the burden was on the employer to prove that keeping the employee in his job would violate the very essence of the employer’s interests (see paragraph 127 below), but that AB Amber Grid had failed to do so. He submitted that without examining, at least to some extent, the reasons provided by the employer for the dismissal, it could not be determined whether the dismissal was related to the employee’s trade union activities (see paragraph 127 below). He also provided detailed submissions addressing the company’s allegations that he had improperly fulfilled his duties (see paragraphs   17 and 18 above) and submitted various supporting documents, including those that had been submitted to the SLI by the second applicant (see paragraph 26 above). 35 .     Lastly, the first applicant argued that AB Amber Grid could not dismiss employees under Article 59 of the Labour Code because the majority of its shares were held by the State (see paragraph 24 above). He also submitted that, under the law, he was considered to be the equivalent of a civil servant and had an obligation to declare any potential conflicts of interest, which further testified to the fact that AB Amber Grid was a State-owned company. 36 .     During the hearing before the Vilnius Regional Administrative Court, the first applicant also submitted that AB Amber Grid had recently decided to change its corporate structure and to eliminate his department, as well as the department of the head of the applicant union (see paragraph 93 below). He considered that that constituted further proof of discrimination against the trade union and its members. 37 .     The SLI disputed the first applicant’s complaint. It submitted that it had assessed all the information that had been provided to it and had found no grounds to believe that the company’s intention to dismiss the first applicant was related to his trade union activities. 38 .     AB Amber Grid participated in the proceedings as a third party and disputed the first applicant’s complaint. It submitted that the legal basis for the dismissal was Article 59 of the Labour Code, namely – it was sought to dismiss the first applicant at the employer’s will, in view of his character, his behaviour at work, his attitude towards the company’s culture and his relations with his colleagues. It was therefore immaterial whether he had committed any disciplinary violations. The company also submitted that it was not an enterprise established from the State budget but rather a joint-stock company, the majority of whose shares were owned by the State. Thus, it argued that it had the right to dismiss employees under Article 59 of the Labour Code. 39.     The second applicant, which also participated in the proceedings as a third party, supported the first applicant’s complaint. It submitted, in particular, that the dismissal of a trade union’s board member was sufficient to establish a prima facie case of discrimination; therefore, in accordance with the Law on Equal Opportunities, the burden was on the employer to refute the alleged discrimination (see paragraph 117 below). 40 .     The second applicant further submitted that by seeking to dismiss the first applicant AB Amber Grid had likely sought to put pressure on other members of the applicant union. Two members had since quit their jobs and one had resigned from his position as the deputy head of the applicant union and had withdrawn from the collective bargaining process. The applicant union contended that such staff turnover was unusual in the company and that it reflected the company’s discriminatory attitude towards the applicant union and its members. Decision of the Vilnius Regional Administrative Court 41 .     On 11 June 2018 the Vilnius Regional Administrative Court allowed the first applicant’s complaint and quashed the decision of the SLI. The court held that the SLI’s decision had been insufficiently reasoned because it had not addressed any of the factual circumstances or supporting documents provided by the first applicant. Moreover, the court upheld the arguments raised by the first applicant to the effect that AB Amber Grid had had to obtain the consent of the applicant union in order to be able to dismiss him (see paragraph   32 above) and that it was a State-owned company, which meant that it could not dismiss employees under Article 59 of the Labour Code (see paragraph 35 above). Decision of the Supreme Administrative Court 42.     AB Amber Grid and the SLI lodged appeals against the decision of the Vilnius Regional Administrative Court in which they submitted essentially the same arguments as those that they had raised in their previous submissions (see paragraphs 37 and 38 above). 43 .     On 19 December 2018 the Supreme Administrative Court allowed the appeals in part, quashed the lower court’s decision and remitted the case for fresh examination. It held that, in accordance with Article 168 § 3 of the Labour Code and the relevant case-law (see paragraphs   111 and 126-131 below), the role of the SLI was limited to examining whether the employee’s trade union activity had been the decisive factor in the employer’s decision to dismiss him or her. What the SLI had to assess was whether the employer’s request had contained relevant reasons that were unrelated to the employee’s trade union activities, whereas the question of whether the dismissal had been lawful and justified could only be assessed after the employee had actually been dismissed and had lodged a complaint against the dismissal with the courts of general jurisdiction. Therefore, the SLI had not been required to carry out an in-depth examination of the arguments contained in the company’s request relating to the quality of the first applicant’s work. 44 .     The Supreme Administrative Court further held that the subject matter of the case was limited to determining whether the SLI’s decision to consent to the first applicant’s dismissal had been justified. It was not within the remit of the SLI to examine compliance with the Law on Trade Unions or to assess the applicability of Article 59 of the Labour Code to AB Amber Grid. Therefore, those questions fell outside the scope of the administrative proceedings. Second set of proceedings before the administrative courts Decision of the Vilnius Regional Administrative Court 45.     On 18 April 2019 the Vilnius Regional Administrative Court, after fresh examination, dismissed the first applicant’s complaint. 46 .     The court observed that the first applicant had not been the only employee of the company to have been active in the collective bargaining process. Decisions made by the applicant union were adopted collectively; therefore, his dismissal would not affect collective bargaining. The court considered that neither the fact that the first applicant had participated in trade union activities nor the fact that the notice of dismissal had been presented to him while the collective bargaining had been ongoing sufficed to conclude that the company’s wish to dismiss him had been related to those activities. The court also rejected the first applicant’s argument that criticism of his work had begun only after he had become active in the applicant union – the case-file material showed that his allegedly inappropriate communication style had been criticised by certain contractors in 2015 and 2016. In the court’s view, the positive opinion that some of the first applicant’s colleagues had of him (see paragraph   26 above) did not serve to refute the company’s allegations concerning his lack of cooperation and his unilateral decision-making style. Lastly, the fact that two other members of the applicant union had left their jobs in 2017 (see paragraph   40 above) did not, in and of itself, constitute proof of discrimination, as people could leave their jobs for many different reasons, and the first applicant had failed to present any evidence that the decisions taken by those employees had been somehow related to their membership in the applicant union. 47.     Accordingly, the Vilnius Regional Administrative Court concluded that the SLI had properly assessed the relevant evidence and had reached a well-founded conclusion that the wish of AB Amber Grid to dismiss the first applicant had not been related to his trade union activities. It agreed with the assessment of the SLI that general statements regarding the first applicant’s active role in trade union activities did not suffice to demonstrate that the intention to dismiss him was related to those activities and that his allegations were based on his subjective perceptions, rather than any objective evidence. The parties’ submissions in the appellate proceedings 48 .     The first applicant lodged an appeal against the above-noted decision. He submitted that, according to the annual report of the SLI, which was publicly available, between July 2017 and June 2018 it had received thirty requests from employers seeking to dismiss employees who were members of trade unions and had granted all of them. This indicated that the SLI was biased in favour of employers. Moreover, the first applicant argued that the SLI was unable to properly assess whether an intention to dismiss an employee was based on discriminatory grounds; he noted that during the hearing before the first-instance court, its representative had acknowledged that the SLI did not have any methodology for assessing what the real reasons were for an intended dismissal and had been unable to indicate what the first applicant should have provided in order to prove that his employer’s request had been based on discriminatory motives. 49 .     He further submitted that, in accordance with the relevant law, once the claimant provided prima facie evidence that he or she had been discriminated against, the burden shifted onto the defendant to prove that there had been no discrimination (see paragraph 117 below). Moreover, he contended that Article 168 § 3 of the Labour Code (see paragraph 111 below) enshrined the presumption that in the event that an employee, elected by other employees to represent them, was dismissed during the period of such representation, the dismissal constituted discrimination. That presumption was in line with the Constitutional Court’s case-law (see paragraph 122 below). Thus, the burden was on the employer to show that the employee’s involvement in the representation of employees was merely formal or passive, or that the dismissal was unrelated to such involvement. The law did not require either the employee or the trade union to present indisputable evidence proving discrimination. Accordingly, the first applicant argued that the Vilnius Regional Administrative Court had breached the rules on the distribution of the burden of proof because it had required him to provide evidence demonstrating that the wish of AB Amber Grid to dismiss him had been related to his trade union activities. 50 .     He also pointed out that, during the hearing before the first-instance court, the head of the applicant union had testified that six members of the union had left their jobs by mutual consent of the parties because the conditions of their work had gradually worsened and they had not wished to institute court proceedings against the company. The first applicant argued that AB Amber Grid sought to create an atmosphere of fear, thus discouraging employees from getting involved in trade union activities. He submitted that, following the above-mentioned structural changes in the company (see paragraph 36 above), two other members of the applicant union had been demoted. 51 .     He once again disputed the company’s allegations regarding his work performance (see paragraphs 17, 18 and 25 above). He stated that he was not aware of any instance when AB Amber Grid had dismissed another person holding a similar position as him for reasons such as those for which his dismissal was sought. He contended that the company’s discriminatory attitude towards him was evident from a variety of actions – namely, in contrast to other employees holding similar positions, the first applicant had not been given a pay rise, had not been invited to participate in professional training and had not been provided with a suitable computer. Moreover, AB   Amber Grid had started implementing structural changes within the company without waiting for the decision of the SLI to become final. As a result of those structural changes, the department that the first applicant had previously headed had been eliminated (see paragraph 93 below). He had been removed from any decision-making responsibilities, had ceased to be required to supervise employees and he no longer had his own office or a service car. Although he had asked the company to appoint him to a position that would be equivalent to that which he had held previously, his request had been refused. 52.     Lastly, the first applicant asked the Supreme Administrative Court to apply to the Constitutional Court and ask it to examine whether Article   168 §   3 of the Labour Code was in line with Article 50 of the Constitution (see paragraph 95 below), inasmuch as it enabled the SLI – a State institution – to interfere with the activities of a trade union. 53 .     The SLI contested the first applicant’s appeal. In particular, it submitted that, according to the case-law of the Supreme Court, the Law on Equal Opportunities was not applicable in cases of alleged discrimination on the grounds of trade union activities (see paragraphs 128-130 below). 54.     AB Amber Grid also disputed the first applicant’s appeal. While it accepted that it had to prove that its wish to dismiss the first applicant was not related to his trade union activities, it argued that it had satisfied that burden of proof. The fact that the first applicant had a different view of the factual circumstances indicated by the company did not suffice to demonstrate that he was being dismissed because of his role in the trade union. AB Amber Grid also submitted that decisions taken by the SLI in other cases (see paragraph   48 above) were irrelevant because each case was decided on the basis of its specific circumstances. Furthermore, the company acknowledged that there was a conflict between Article 168 § 3 of the Labour Code and Article   21   §   1 of the Law on Trade Unions; however, that did not mean that either of those provisions was contrary to the Constitution. 55.     The second applicant supported the first applicant’s appeal and argued that the company’s various actions (see paragraphs 50 and 51 above) had demonstrated its discriminatory attitude towards the first applicant, the applicant union and its members. It also contended that, when regulating matters relating to trade unions, the Labour Code gave primacy to legal instruments that were specifically designed to regulate such matters (see paragraph 112 below), which meant that Article 21 § 1 of the Law on Trade Unions had to be applied and that the first applicant could not be dismissed without the applicant union’s consent. Decision of the Supreme Administrative Court 56.     On 26 June 2019 the Supreme Administrative Court upheld the decision of the lower court. 57 .     It refused the first applicant’s request that it ask the Constitutional Court to examine whether Article   168   §   3 of the Labour Code was in line with Article 50 of the Constitution. It observed that labour relations were generally governed by private law and that the involvement of a public authority in questions relating to such matters might appear excessive. However, in the court’s view, the involvement of the SLI was justified by the need to ensure that employees’ representatives be protected from hostile actions on the part of their employers. Accordingly, the court stated that it had no reasons to doubt that Article   168   §   3 of the Labour Code complied with the Constitution. 58 .     The Supreme Administrative Court endorsed the findings of the lower court that there were no grounds to believe that the wish of AB Amber Grid to dismiss the first applicant was related to his trade union activities (see paragraph 46 above). It stated that it would not address the first applicant’s arguments regarding the justification for his dismissal because that question fell outside the scope of the administrative proceedings. Lastly, the court held that it had not been demonstrated that the SLI had been biased when adopting the impugned decision and that the data provided by the first applicant regarding its decisions in other cases (see paragraph 48 above) was irrelevant. Civil proceedings Proceedings before the Vilnius District Court The first applicant’s claim 59 .     On 26 June 2019 the first applicant was dismissed from his job at the employer’s will, in line with Article 59 of the Labour Code (see paragraph   107 below). He lodged a complaint about the dismissal with the State Labour Disputes Commission, but the latter rejected his complaint on 26   September 2019. 60.     The first applicant then lodged a claim with the Vilnius District Court, arguing that the dismissal had been unlawful and unjustified and asking to be reinstated in his previous position or installed in a similar position. Similarly to his previous complaints, he argued that AB Amber Grid had been obliged to obtain the consent of the applicant union before dismissing him, since the Law on Trade Unions was lex specialis in relation to the Labour Code (see paragraph   32 above). 61.     The first applicant further submitted that he had been dismissed on discriminatory grounds. He contended that all the circumstances that the company had cited when dismissing him (see paragraphs 17 and 18 above) had arisen within the short period of August-October 2017, except for one which had arisen in 2015; regardless, he had worked at the company for twenty-five years and had never been the subject of any negative remarks. He addressed in detail each of the company’s allegations regarding his decision-making style, his behaviour at work and his interactions with colleagues and contractors. He also pointed out that his performance had been appraised in a positive manner on several occasions (see paragraph 22 above). He further argued that the company’s discriminatory attitude towards him had also been demonstrated by several other sets of circumstances (see paragraph 51 above), including the fact that, following the changes to its corporate structure, his department had been eliminated and he had not been provided with a new position equivalent to that which he had held previously (see paragraph   93 below). 62.     Lastly, the first applicant again contended that he could not have been dismissed on the grounds provided in Article 59 of the Labour Code because the majority of AB Amber Grid’s shares were held by the State (see paragraph   24 above). The company’s response to the claim 63.     AB Amber Grid firstly submitted that it had the right to dismiss employees under Article 59 of the Labour Code. The applicability of that provision was determined by the legal status of a company – Article 59 provided that it was not applicable to State and municipal institutions, entities and enterprises, and public entities (see paragraph 107 below), but AB Amber Grid was a joint-stock company; therefore, it was not covered by that list, irrespective of who held the majority of its shares. 64.     Secondly, AB Amber Grid submitted that it had not been required to obtain the applicant union’s consent in order to be able dismiss the first applicant. It stated that the first applicant’s arguments concerning the lawfulness of the SLI’s involvement in his dismissal had already been addressed in the administrative proceedings (see paragraph 57 above). Be that as it may, the company contended that, after the Labour Code had entered into force, other legal instruments could be applied only if they did not contradict the provisions of the Labour Code (see paragraph   113 below). Accordingly, Article 168 § 3 of the Labour Code had primacy over Article   21 §   1 of the Law on Trade Unions. 65.     Thirdly, the company disputed the presence of any discriminatory motives in its decision to dismiss the first applicant. It contended that Article   59 of the Labour Code gave it certain discretion to dismiss an employee for reasons related to that employee’s personal characteristics and to his or her negative effect on the working environment, and that in such instances the employer was not required to demonstrate that the employee had failed to carry out his or her direct functions or had breached work regulations. AB Amber Grid submitted that it had provided detailed reasons for its considering that the first applicant was no longer able to continue working at the company (see paragraphs 17 and 18 above). Those reasons were not related to his trade union activities – that had been examined by the SLI and by the administrative courts, which had found no discrimination, and their decisions had become final. 66.     In any event, AB Amber Grid submitted that the first applicant had not been the only active participant in the collective bargaining process, so it was unreasonable to claim that by dismissing him the company had sought to put pressure on the applicant union. Even though six other members of the applicant union’s board had since left their jobs, three of them had resigned on their own initiative and the other three had left by mutual consent of the parties, upon the proposal of the employee in question (see paragraphs 102 and 103 below). Thus, there was no proof that AB Amber Grid had taken any action to weaken the trade union. Irrespective of the first applicant’s dismissal and the resignation of other employees, the collective bargaining had continued and the collective agreement had eventually been signed. The company also disputed the first applicant’s allegations that he had not been invited to take part in professional training, had not been given a pay rise and had not been provided with the working equipment necessary for him to do his job properly (see paragraph 51 above). Accordingly, AB Amber Grid submitted that the first applicant had failed to establish a prima facie case of discrimination and that there was no reason to shift onto the employer the burden of proof in respect of refuting the alleged discrimination. The second applicant’s submissions 67.     The second applicant provided written submissions in which it essentially raised the same arguments as those raised by the first applicant. It also contended that an unjustified dismissal of its board member amounted to discrimination against it and interference with its activities. Decision of the Vilnius District Court 68.     On 6 January 2021 the Vilnius District Court dismissed the first applicant’s complaint. 69.     It firstly noted that the dispute concerning the lawfulness of the SLI’s decision had already been resolved in the administrative proceedings. The decision taken by the Supreme Administrative Court in those proceedings had a res judicata effect and its findings could no longer be challenged. 70 .     The court also held that AB Amber Grid had not been required to obtain the applicant union’s consent in order to dismiss the first applicant. Article   168 §   3 of the Labour Code was applicable in all cases where an employer sought to dismiss an employee who was involved in the representation of employees, and it provided no exceptions for members of trade unions. In the administrative proceedings instituted by the first applicant, the Supreme Administrative Court had held that there were no grounds to doubt that Article 168 § 3 complied with the Constitution (see paragraph 57 above). The Vilnius Distri