Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15573/89

Torgny Gustafsson

against

Sweden

REPORT OF THE COMMISSION

(adopted on 10 January 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-12). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 13-17) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-52). . . . . . . . . . . . . . . . . . . . . . . . 4

A. The particular circumstances of the case

(paras. 18-39) . . . . . . . . . . . . . . . . . . . . . 4

B. Relevant domestic law

(paras. 40-52) . . . . . . . . . . . . . . . . . . . . . 8

1. Freedom of association

(paras. 40-44) . . . . . . . . . . . . . . . . . . 8

2. Right of association

(paras. 45-47) . . . . . . . . . . . . . . . . . .10

3. Access to court

(paras. 48-49) . . . . . . . . . . . . . . . . . .11

4. Judicial review

(paras. 50-51) . . . . . . . . . . . . . . . . . .12

5. Protection of the right of re-employment

(para. 52) . . . . . . . . . . . . . . . . . . . .12

III. OPINION OF THE COMMISSION

(paras. 53-108) . . . . . . . . . . . . . . . . . . . . . . .13

A. Complaints declared admissible

(para. 53) . . . . . . . . . . . . . . . . . . . . . . .13

B. Points at issue

(paras. 54). . . . . . . . . . . . . . . . . . . . . . .13

C. As regards Article 11 of the Convention

in conjunction with Article 17

(paras. 55-83) . . . . . . . . . . . . . . . . . . . . .13

CONCLUSION

(para. 84) . . . . . . . . . . . . . . . . . . . . . . .19

TABLE OF CONTENTS

Page

D. As regards Article 1 of Protocol No. 1 in

conjunction with Article 17 of the Convention

(paras. 85-89) . . . . . . . . . . . . . . . . . . . . .19

CONCLUSION

(para. 90) . . . . . . . . . . . . . . . . . . . . . . .20

E. As regards Article 6 para. 1 of the Convention

(paras. 91-96) . . . . . . . . . . . . . . . . . . . . .20

CONCLUSION

(para. 97) . . . . . . . . . . . . . . . . . . . . . . .21

F. As regards Article 13 of the Convention

(paras. 98-103). . . . . . . . . . . . . . . . . . . . .21

CONCLUSION

(para. 104). . . . . . . . . . . . . . . . . . . . . . .22

G. Recapitulation

(paras. 105-108) . . . . . . . . . . . . . . . . . . . .22

PARTLY DISSENTING OPINON OF Mr. G. JÖRUNDSSON . . . . . . . . . . .23

PARTLY DISSENTING OPINION OF MM. TRECHSEL AND BRATZA. . . . . . . .24

PARTLY DISSENTING AND PARTLY CONCURRING OPINION

OF Mrs. J. LIDDY, JOINED BY Mr. I. CABRAL BARRETO . . . . . . . . .25

PARTLY DISSENTING OPINION OF Mr. B. CONFORTI. . . . . . . . . . . .28

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .29

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .30

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Swedish citizen, born in 1947 and resident at

Tingstäde. He was represented before the Commission by Mr. Göran

Ravnsborg, Assistant Professor of Law at the University of Lund.

3. The application is directed against Sweden. The respondent

Government were represented by their Agent, Mr. Carl-Henrik Ehrenkrona,

Assistant Under-Secretary for Legal Affairs, Ministry for Foreign

Affairs, Stockholm.

4. The case concerns lack of State protection against industrial

actions against the applicant's business establishment allegedly

violating both his negative freedom of association and his right to the

peaceful enjoyment of his possessions. The applicant further complains

that he was unable effectively to challenge the industrial actions

before a tribunal and that no other effective remedy was at his

disposal either. He invokes Article 11 of the Convention and Article 1

of Protocol No. 1 to the Convention, both in conjunction with

Article 17 of the Convention, as well as Article 6 para. 1 and

Article 13 of the Convention.

B. The proceedings

5. The application was introduced on 1 July 1989 and registered on

4 October 1989. At the applicant's request its examination was

suspended until July 1992.

6. On 14 October 1992 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 1 April 1993

after three extensions of the time-limit fixed for this purpose. The

applicant replied on 23 June 1993. Additional observations were

submitted by the Government on 30 August 1993. On 5 July 1993 the

Commission granted the applicant legal aid for the representation of

his case.

8. On 11 January 1994 the application was referred to the plenary

Commission under Article 20 para. 4 of the Convention.

9. On 17 January 1994 the Commission decided to hold a hearing of

the parties. The hearing was held on 8 April 1994. The Government were

represented by their Agent, Mr. Carl Henrik Ehrenkrona,

Mrs. Catharina Staaf, Legal Adviser, Ministry of Justice, and

Mrs. Inga Ã…kerlund, Legal Adviser, Ministry of Labour. The applicant

was represented by his counsel, Mr. Göran Ravnsborg, and also attended

the hearing himself.

10. On 8 April 1994 the Commission declared the application

admissible.

11. The text of the Commission's decision on admissibility was sent

to the parties on 22 April 1994 and they were invited to submit further

observations on the merits. The applicant submitted observations on

1 June 1994 and the Government on 2 June 1994.

12. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present :

MM. C.L. ROZAKIS, Acting President

H. DANELIUS

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

E. KONSTANTINOV

Mr. H.C. KRÜGER, Secretary to the Commission

14. The text of this Report was adopted on 10 January 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

15. The purpose of the Report, pursuant to Article 31 of the

Convention, is :

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

16. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

17. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

18. As from the summer of 1987 up to and including the summer of 1990

the applicant owned the summer restaurant "Ihrebaden" at Ihreviken,

Tingstäde, on the island of Gotland. The applicant further owned - and

continues to own - the youth hostel "Lummelunda" at Nyhamn, Visby, also

on Gotland. The restaurant had hired employees amounting to less than

ten. These were engaged on a seasonal basis, but had the option of

being re-employed. The applicant's ownership of the restaurant and

youth hostel was direct and entailed his personal financial

responsibility (enskild firma).

19. The applicant was not a member of either of the two associations

of restaurant employers, namely the Swedish Hotel and Restaurant

Entrepreneurs' Association (previously the Hotel and Restaurant

Employers' Association; Sveriges Hotell- och Restaurangföretagare

(f.d. Hotell- och Restaurangarbetsgivareföreningen);

hereinafter-"HRAF") or the Employers' Association of the Swedish

Association of Restaurant Owners (Svenska Restauratörsförbundets

Arbetsgivareförening; hereinafter "SRA"). HRAF is associated with the

Swedish Employers' Confederation (Svenska Arbetsgivareföreningen;

hereinafter "SAF"), while SRA is not.

20. As a result of his non-membership the applicant was not bound by

any collective labour agreement (kollektivavtal) which HRAF and SRA had

concluded with the Hotel and Restaurant Workers' Union (Hotell- och

Restauranganställdas Förbund; hereinafter "HRF"), respectively. He also

refused, in 1987, to sign a separate, so-called substitute agreement

(hängavtal) with HRF to the effect that a collective agreement should

apply. He referred to his objections of principle against the system

of collective bargaining. He also emphasised that his employees were

paid more than a collective agreement would have provided for them and

that they themselves objected to the signing of a substitute agreement

on their behalf.

21. The substitute agreement proposed to the applicant was worded as

follows:

(translation)

"Parties: [The applicant] and [HRF]

Term of validity: From 1 July 1987 up to and including

31 December 1988, thereafter for one year at a time, unless

notice is given two months prior to the expiry of the

[agreement].

...

As from the [above] date, the most recent agreement between

[the employers' association] and [HRF] shall be applied

between [the applicant and HRF]. Should [the employers'

association] and [HRF] subsequently reach a new agreement

or agree to amend or supplement the [present] agreement,

[the new agreement, amendments or supplements] shall

automatically apply as from the day on which [it or they]

[has or have] been [agreed upon].

...

1. [The employer shall] [on his employees' behalf]

subscribe to and maintain [five different] insurances in

'Labour Market Insurances' ('Arbetsmarknadsförsäkring'),...

as well as other possible insurances which [the employers'

association and HRF] might later agree upon.

2. [The employer shall] issue employment certificates on

a special form... A copy shall be sent to [HRF].

3. [The employer shall] only employ [workers who are

members] of or [have] requested membership of [HRF]. In

case of re-employment the provisions of Section 25 of the

Employment Protection Act (lag 1982:80 om anställnings-

skydd) shall be applied.

4. [The employer shall] on a monthly basis deduct a part

of the salary of employed members of [HRF] which

corresponds to their membership fees, and pay [the deducted

part] to [HRF].

..."

22. On 16 July 1987 the applicant met a representative of HRF.

Following the negotiations HRF proposed the following substitute

agreement which was, however, not signed by the applicant:

(translation)

"Subject: The signing of a collective agreement regarding

[the restaurant] Ihrebaden ... and the Lummelunda youth

hostel.

1. Having regard to the forthcoming end of the [season of

1987] the parties agree on the following procedure

replacing the signing of a collective agreement.

The enterprise agrees to comply, during this season...,

with the collective labour agreement ('the green national

agreement') between [HRAF] and [HRF], this including the

obligation to subscribe to [certain] insurances

(avtalsförsäkringar) in 'Labour Market Insurances'.

2. The enterprise also agrees to [comply with] [the]

collective labour agreement ... during the next season...,

either by way of membership in the employers' union or by

signing a ... substitute agreement..."

23. The "Labour Market Insurances" referred to in the substitute

agreements proposed to the applicant consist of a number of different

insurances developed through agreements between SAF and the Swedish

Trade Union Confederation (Landsorganisationen; hereinafter "LO"). The

collective health insurance is administered by "AMF Sjukförsäkring",

a limited liability company equally owned by SAF and LO. The industrial

injuries insurance is handled jointly by SAF, LO, the Federation of

Salaried Employees in Industry and Services (Privattjänstemanna-

kartellen) and three insurance companies. The severance payment and

collective life insurances are administered by "AFA Arbetsmarknadens

Försäkringsaktiebolag", a limited liability company equally owned by

SAF and LO. Finally, the special additional pension insurance is

handled by "AMF Pension", another limited liability company equally

owned by SAF and LO.

24. An employer bound by a collective agreement must insure his

employees in "Labour Market Insurances". An employer not bound by such

an agreement may choose to subscribe to insurances in "Labour Market

Insurances", but may also choose another company out of the roughly ten

insurance companies in the field.

25. Following the applicant's refusal to sign a substitute agreement,

HRF, in July 1987, placed his restaurant under a blockade and declared

a boycott against it. Sympathy measures were taken the same month by

the Commercial Employees' Union (Handelsanställdas Förbund) and the

Swedish Food Workers' Union (Svenska Livsmedelsarbetareförbundet).

26. In the summer of 1988 sympathy measures were also taken by the

Swedish Transport Workers' Union (Svenska transportarbetareförbundet)

and the Union of Municipal Employees (Kommunalarbetareförbundet). As

a result the deliveries to the restaurant were stopped.

27. In the summers of 1987 and 1988 one of the employees at

"Ihrebaden" was a member of HRF. She publicly expressed the opinion

that the industrial actions were unnecessary, as the salary and working

conditions could not be criticised.

28. In August 1988 the applicant, invoking the Convention, requested

that the Government prohibit HRF from continuing the blockade and the

other trade unions from continuing their sympathy measures. He further

requested that the Government order the unions to pay damages,

alternatively that damages be paid by the State.

29. In its decision of 12 January 1989 the Government (Ministry of

Justice) stated the following:

(translation)

"The requests for a prohibition of the blockade and the

sympathy measures as well as damage liability of the trade

unions, concern a legal dispute between private subjects.

According to Chapter 11, Article 3 of the Instrument of

Government (Regeringsformen), such disputes may not be

determined by any other public authority than a court of

law, except by virtue of law. There is no provision in the

law which authorises the Government to examine such

disputes. The Government, therefore, will not examine these

requests on the merits.

The claim for damages is dismissed."

30. The applicant asked for judicial review of the decision in

accordance with the 1988 Act on Judicial Review of Certain

Administrative Decisions (lag 1988:205 om rättsprövning av vissa

förvaltningsbeslut).

31. On 29 June 1989 the Supreme Administrative Court

(Regeringsrätten) dismissed the request, finding that the Government's

dismissal and rejection of the claims was not a decision in an

administrative matter involving the exercise of public power.

32. On 15 September 1989 the Swedish Touring Club (Svenska

turistföreningen; hereinafter "STF") terminated the contract with the

applicant's youth hostel, referring to co-operation difficulties and

the applicant's negative attitude towards STF. STF is a non-profit

association aimed at promoting tourism in Sweden and improving the

general knowledge about the country. In 1989 about 280 youth hostels

were enrolled in STF, while roughly as many were not. The exclusion

entailed, inter alia, that the hostel was no longer mentioned in STF's

catalogue of youth hostels in Sweden.

33. The applicant brought proceedings before the District Court

(tingsrätten) of Stockholm. He contested the grounds for what he

considered as his personal exclusion from STF, alleging that it had

resulted from HRF's threats to institute industrial actions against

other youth hostels enrolled in STF, unless his hostel was excluded.

He also contested the grounds for STF's termination of the contract

concerning his youth hostel.

34. STF argued, inter alia, that, although the termination of the

membership contract concerning the applicant's youth hostel had not

been based on the conflict between the applicant and the trade unions,

this conflict might have affected the timing of the termination.

Reference was furthermore made to a finding of the Competition

Ombudsman (ombudsmannen för näringsfrihet) of 14 November 1989 that the

termination of the contract concerning the applicant's youth hostel

would only to a very limited extent render his business activity more

difficult.

35. By judgment of 8 May 1991 the District Court rejected the

applicant's action on both points. It found, inter alia, that the

applicant had not shown that he had been personally excluded from STF

by virtue of the termination of STF's contract concerning his youth

hostel. It also found that he had not shown that the contract had been

financially significant to his business. Reference was made to the

finding of the Competition Ombudsman.

36. By judgment of 6 March 1992 the Svea Court of Appeal (Svea

hovrätt) upheld the District Court's judgment. It found, inter alia,

that STF's termination of the contract concerning the youth hostel had

entailed the expiry of the applicant's personal membership of STF.

This, however, had not been tantamount to his exclusion, given that he

could have retained or renewed his membership. Moreover, although the

contract had been of significant importance to the applicant's

business, STF's termination of the contract could not be considered

unreasonable.

37. In the beginning of 1991 the applicant sold his restaurant due

to his difficulties in running his business which had allegedly been

caused by the industrial actions.

38. On 9 November 1991 the applicant requested the Government to

support his application before the Commission.

39. On 12 December 1991 the Government decided not to take any

measures in respect of the request.

B. Relevant domestic law

1. Freedom of association

40. Chapter 2, Section 1 of the Instrument of Government provides as

follows:

(Swedish)

"Varje medborgare är gentemot det allmänna tillförsäkrad

1. yttrandefrihet: frihet att i tal, skrift eller bild

eller på annat sätt meddela upplysningar samt uttrycka

tankar, åsikter och känslor;

...

5. föreningsfrihet: frihet att sammansluta sig med andra

för allmänna eller enskilda syften; ..."

(translation)

"All citizens shall be guaranteed the following in their

relations with the public administration:

1. freedom of expression: the freedom to communicate

information and to express ideas, opinions and emotions

whether orally, in writing, in pictorial representations,

or in any other way;

...

5. freedom of association: the freedom to unite with

others for public or private purposes; ..."

41. Chapter 2, Section 2 provides as follows:

(Swedish)

"Varje medborgare är gentemot det allmänna skyddad mot

tvång att giva till känna sin åskådning i politiskt,

religiöst, kulturellt eller annat sådan hänseende. Han är

därjämte gentemot det allmänna skyddad mot tvång att

deltaga i sammankomst för opinionsbildning eller i

demonstration eller annan meningsyttring eller att tillhöra

politisk sammanslutning, trossamfund, eller annan

sammanslutning för åskådning som avses i första meningen."

(translation)

"All citizens shall be protected in their relations with

the public administration against all coercion to divulge

an opinion in any political, religious, cultural or other

similar connection. They shall furthermore be protected in

their relations with the public administration against all

coercion to participate in any meeting for the formation of

opinion or in any demonstration or other expression of

opinion or to belong to any political association,

religious congregation or other association for opinions of

the nature referred to in the first sentence."

42. Chapter 2, Section 12, subsections 1 and 2 provide as follows:

(Swedish)

"De fri- och rättigheter som avses i 1 § 1-5 ... får, i den

utsträckning som 13-16 §§ medgiver, begränsas genom lag.

...

Begränsning som avses i första stycket får göras enbart för

att tillgodose ändamål som är godtagbart i ett demokratiskt

samhälle. Begränsningen får aldrig gå utöver vad som är

nödvändigt med hänsyn till det ändamål som föranlett den

och ej heller sträcka sig så långt att den utgör ett hot

mot den fria åsiktsbildningen såsom en av folkstyrelsens

grundvalar. Begränsning får ej göras enbart på grund av

politisk, religiös, kulturell eller annan sådan

åskådning."

(translation)

"The freedoms and rights referred to in Section 1,

paras. 1-5 ... may be restricted by law to the extent

provided for in Sections 13-16. ...

The restrictions referred to in the preceding subsection

may only be imposed to achieve a purpose which is

acceptable in a democratic society. The restriction may

never exceed what is necessary having regard to the purpose

which occasioned it, nor may it be carried so far as to

constitute a threat to the free formation of opinion as one

of the foundations of democracy. No restriction may be

imposed solely on grounds of political, religious, cultural

or other such opinions."

43. Chapter 2, Section 14, subsection 2 provides as follows:

(Swedish)

"Föreningsfriheten får begränsas såvitt gäller

sammanslutningar vilkas verksamhet är av militär eller

liknande natur eller innebär förföljelse av folkgrupp av

viss ras, med viss hudfärg eller av visst etniskt

ursprung."

(translation)

"Freedom of association may only be restricted in respect

of organisations whose activities are of a military nature

or the like or which involve the persecution of a

population group of a particular race, skin colour or

ethnic origin."

44. Chapter 2, Section 17 provides as follows:

(Swedish)

"Förening av arbetstagare samt arbetsgivare och förening av

arbetsgivare äger rätt att vidtaga fackliga stridsåtgärder,

om annat ej följer av lag eller avtal."

(translation)

"Any trade union or employer or association of employers

shall be entitled to take strike or lock-out action or any

similar measures unless otherwise provided by law or

arising out of an agreement."

2. Right of association

45. Section 7 of the 1976 Act on Co-Determination at Work (lag

1976:580 om medbestämmande i arbetslivet) provides as follows:

(Swedish)

"Med föreningsrätt avses rätt för arbetsgivare och

arbetstagare att tillhöra arbetsgivar- eller arbetstagar-

organisation, att utnyttja medlemskapet och att verka för

organisationen eller för att sådan bildas."

(translation)

"By right of association is meant a right of employers and

employees to belong to an organisation of employers or

employees, to take advantage of their membership as well as

to work for an organisation or for the founding of one."

46. Section 8 provides as follows:

(Swedish)

"Föreningsrätten skall lämnas okränkt. Kränkning av

föreningsrätten föreligger, om någon på arbetsgivar- eller

arbetstagarsidan vidtager åtgärd till skada för någon på

andra sidan för att denne har utnyttjat sin föreningsrätt

eller om någon på ena sidan vidtager åtgärd mot någon på

andra sidan i syfte att förmå denne att icke utnyttja sin

föreningsrätt. Sådan kränkning föreligger även om åtgärden

vidtages för att åtagande mot annan skall uppfyllas.

Arbetsgivar- eller arbetstagarorganisation är icke skyldig

att tåla sådan kränkning av föreningsrätten som innebär

intrång i dess verksamhet. Finns både lokal och central

organisation, gäller vad som nu har sagts den centrala

organisationen.

Sker kränkning av föreningsrätten genom avtalsuppsägning

eller annan sådan rättshandling eller genom bestämmelse i

kollektivavtal eller annat avtal, är rättshandlingen eller

bestämmelsen ogiltig."

(translation)

"The right of association shall not be violated. A

violation ... will occur, if anyone on the side of the

employer or the employee takes any action to the detriment

of anybody on the other side by reason of that person

having exercised his right of association, or if anybody on

either side takes any action against anybody on the other

side with a view to inducing that person not to exercise

his right of association. A violation will occur even if

the action is taken in order for an obligation towards

another party to be fulfilled.

An organisation of employers or employees shall not have to

tolerate a violation of its right of association

encroaching upon its activities. Where there is both a

local and a central organisation, these provisions shall

apply to the central organisation.

If the right of association is violated by the termination

of an agreement or another legal act or by a provision in

a collective agreement or other contract, that act or

provision shall be void."

47. Section 10 provides as follows:

(Swedish)

"Arbetstagarorganisation har rätt till förhandling med

arbetsgivare i fråga rörande förhållandet mellan

arbetsgivaren och sådan medlem i organisationen, som är

eller har varit arbetstagare hos arbetsgivaren.

Arbetsgivare har motsvarande rätt att förhandla med

arbetstagarorganisation.

Förhandlingsrätt ... tillkommer arbetstagarorganisationen

även i förhållande till organisation som arbetsgivaren

tillhör och arbetsgivarens organisation i förhållande till

arbetstagarorganisation."

(translation)

"An organisation of employees shall have the right to

negotiate with an employer regarding any matter relating to

the relationship between the employer and any member of the

organisation who is or has been employed by that employer.

An employer shall have a corresponding right to negotiate

with an organisation of employees.

A right of negotiation ... shall also be enjoyed by the

organisation of employees in relation to any organisation

to which an employer belongs, and by the employer's

organisation in relation to the organisation of employees."

3. Access to court

48. Chapter 11, Section 3 of the Instrument of Government provides

as follows:

(Swedish)

"Rättstvist mellan enskilda får icke utan stöd av lag

avgöras av annan myndighet än domstol. ..."

(translation)

"Legal disputes between private subjects shall only be

settled by a court of law, unless otherwise provided by

law. ..."

49. In principle, it is possible for an employer against whom

industrial actions have been instituted to request a court injunction

to the effect that the actions be ordered to cease, as well as to claim

damages. Such a law suit must, however, be based on the fact that the

industrial action is unlawful or in breach of an existing collective

agreement. In order for a damage claim not based on such a breach to

be successful it must, in accordance with Chapter 2, Section 4 of the

1972 Tort Liability Act (skadeståndslag 1972:207), be shown that the

industrial action amounts to a criminal offence.

4. Judicial review

50. According to the 1988 Act on Judicial Review of Certain

Administrative Decisions, a party to a case before the Government or

an administrative authority concerning matters covered by Chapter 8,

Sections 2 and 3 of the Instrument of Government may apply to the

Supreme Administrative Court, which shall examine whether the decision

in the case infringes any legal rule.

51. Judicial review may be granted only in respect of decisions which

involve the exercise of public power and which may otherwise not be

brought before the courts except after application for a reopening of

proceedings (resning) and in regard to which no other means of appeal

would have been available.

5. Protection of the right of re-employment

52. Section 25 of the 1982 Employment Protection Act sets out the

conditions under which a former employee shall have the right to be

re-employed. These rules also apply to seasonal workers.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

53. The Commission has declared admissible the applicant's complaints

that the lack of State protection against the industrial actions taken

against his business establishment violated his negative freedom of

association as well as his right to the peaceful enjoyment of his

possessions, and that the court and other remedies which he could

resort to in order to challenge those actions would have been

ineffective.

B. Points at issue

54. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 11 (Art. 11) of

the Convention on account of the lack of State protection against the

industrial actions and whether any issue arises under Article 17

(Art. 17) of the Convention;

- whether there has been a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention and whether any issue arises

under Article 17 (Art. 17) of the Convention;

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention on account of the alleged absence of an

effective court remedy against the industrial actions; and

- whether there has been a violation of Article 13 (Art. 13) of

the Convention on account of the alleged absence of any other effective

remedy against those actions.

C. As regards Article 11 (Art. 11) of the Convention in conjunction

with Article 17 (Art. 17)

55. Article 11 (Art. 11) reads, in so far as relevant, 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.

..."

56. Article 17 (Art. 17) reads as follows:

"Nothing in this Convention may be interpreted as implying

for any State, group or person any right to engage in any

activity or perform any act aimed at the destruction of any

of the rights and freedoms set forth herein or at their

limitation to a greater extent than is provided for in the

Convention."

57. The applicant complains that the respondent State failed without

justification to protect his establishment against the industrial

actions taken by HRF and sympathising unions following his refusal to

enrol in an employers' association or otherwise to comply with the

collective agreement, as proposed by HRF. As a result of the State's

failure he was eventually forced to sell his restaurant, thereby losing

a material part of his livelihood.

58. The applicant considers that the failure on the part of the State

to provide protection against the industrial actions violated his

negative freedom of association. This freedom must, in order to be

effective, be considered as entailing a right for him to negotiate with

his employees without any influence by a trade union such as HRF. He

does not question HRF's general right to defend the interests of its

members, but underlines that his employees in no way suffered from his

lack of affiliation with an employers' association nor from the lack

of affiliation with HRF on the part of all but one of the employees.

He emphasises that all employees, including the only member of HRF at

the work place, objected to the industrial actions.

59. The applicant furthermore asserts that the respondent State could

not absolve itself from its responsibility under Article 11 (Art. 11)

by delegating measures related to collective bargaining to private

bodies such as trade unions. The pressure to which he was subjected was

a result of the Swedish legislation in this field and thus State

responsibility is incurred. Moreover, under Article 27 (Art. 27) of the

Vienna Convention on the Law of Treaties a Party may not invoke the

provisions of its internal law as justification for its failure to

perform a treaty. Thus, having regard also to Article 17 (Art. 17) of

the Convention, the State had an obligation to protect him from the

industrial actions.

60. The applicant argues that the choice proposed to him in order to

avoid membership in an employers' association, namely the signing of

a substitute agreement, was a fictitious one, as both his enrolment in

an employers' association and the signing of a substitute agreement

would have struck at the very essence of his negative freedom of

association. He refused to sign the substitute agreement for weighty

reasons of principle, namely due to his objections against the system

of collective bargaining which is strongly supported by LO. This

confederation is closely related to the Swedish Social Democratic

Workers Party (Sveriges socialdemokratiska arbetareparti).

61. The applicant accepts that, had he become bound by the substitute

agreement, he could later have attempted to have its contents modified.

Most likely, however, an agreement reasonably tailored to meet the

needs of his seasonal establishment could not have been reached, given

the fundamental differences between the organising of the work at his

seasonal establishment and the manner in which it is organised in the

pertinent collective agreements. For instance, the applicant and his

employees wished to avoid distinctions being made between different

categories of staff which were each granted specific salary and other

conditions in the collective agreement. Moreover, up to recently the

trade union members of LO applied a system whereby individual members

of the unions were compulsorily and collectively enrolled as members

of the Swedish Social Democratic Workers Party. The conflict which

arose from the applicant's categorical refusal to become bound by a

collective agreement in essence stemmed from the persistent attempt by

the trade unions and LO to "monopolise" negotiations concerning

employment conditions. A further reason for objecting to the substitute

agreement was the applicant's obligation to subscribe to insurances in

"Labour Market Insurances". In addition, the insurance periods offered

by "Labour Market Insurances" did not coincide with the working-season

of the establishment.

62. The applicant finally submits that the industrial actions against

his remaining youth hostel Lummelunda have not been formally

terminated. Given that it is run only by himself and family members it

has not been directly affected by the actions. They did, however, have

the additional effect of leading to the exclusion of that hostel from

the Swedish Touring Club STF, allegedly due to pressure exerted on STF

by HRF due to his persistent refusal to meet its demands. The

industrial actions against his establishment had allegedly also been

considered by STF to cause negative publicity.

63. The Government submit that Article 11 (Art. 11) of the Convention

is inapplicable in the present case. The right afforded to Swedish

trade unions to take industrial action against an employer in order to

obtain the application of a collective agreement has been regarded as

inherent in the constitutionally protected freedom of association. By

way of indication, the Government estimate that most big employers and

some 85 per cent of all employees in Sweden are bound by collective

agreements.

64. The Government underline that the applicant was in no way

compelled by HRF to join an employers' association, as he could have

chosen to sign the substitute agreement with HRF instead. Had he done

so, HRF's interests would have been met and no industrial actions would

have been called for. The Government admit, however, that signing the

substitute agreement instead of joining an employers' association

would, nevertheless, have bound the applicant to the collective

agreement between HRF and such an association. In that situation the

effects of the substitute agreement might have been less favourable to

the applicant than an actual membership of an employers' association,

given that he would have had no influence over the contents of future

collective agreements, while at the same time being bound by the terms

of such an agreement. Acceptance of the substitute agreement could thus

arguably be considered as a first step towards joining an employers'

association, should he have wished to influence the terms of a future

collective agreement.

65. The Government are unable to indicate with certainty whether, in

the event the applicant had signed the substitute agreement, he would

have been prevented from offering his employees more favourable

employment conditions than those collectively agreed to. It appears,

however, that the collective agreement which might then have become

applicable would not have prevented him from exceeding the minimum

salaries and otherwise offering his employees more favourable

treatment.

66. The Government emphasise that the right of a trade union to take

industrial action whenever the employer is not bound by a collective

agreement is protected by Swedish law regardless of whether any action

has been called for by any of his employees. The unions' right to take

industrial actions may, moreover, be considered inherent in their right

to freedom of association under Article 11 (Art. 11). Also a number of

other international treaties to which Sweden is a party protect the

right of trade unions to promote their interests through industrial

action. These do not contain any obligation to restrict this right in

order to protect the rights of an employer.

67. The Government cannot assess whether the industrial actions were

the most appropriate means of exercising the trade unions' freedom of

association, but assume that such actions are normally taken only as

a last resort, when negotiations with an employer with a view to having

him apply a collective agreement have failed. In Sweden a great

responsibility is placed on unions to ensure that industrial actions

are not used in a way which is detrimental to society or for

unjustified purposes and that such actions are not contrary to the

general sense of justice. As from 1994 actions of the kind taken in the

present case are by law no longer allowed, if they are directed against

a self-employed person or an individual employing only family members.

68. The Government accept that the applicant's freedom per se to

reach employment contracts with his employees without having to comply

with a collective agreement might have been affected. This freedom is,

however, not as such guaranteed by the Convention. Moreover, while

conceding that the industrial actions must have seriously affected the

possibility for the applicant to run his business, the Government

submit that it is not possible for them to assess to what extent it was

damaged. In any case, the State cannot be held responsible for acts of

private subjects in relation to other such subjects.

69. Should Article 11 (Art. 11) be considered applicable, the

Government accept that the State was responsible for the lack of

protection of the applicant's rights under that provision. The

Government do not argue that such an interference with the applicant's

rights was justified.

70. The Commission recalls that Article 11 (Art. 11) must be

considered to protect also the negative freedom of association, i.e.

the right not to join and not to be a member of an association

(cf. Eur. Court H.R., Sigurdur Sigurjónsson v. Iceland judgment of

30 June 1993, Series A no. 264, pp. 15-16, para. 35), although the

scope of this protection remains to be defined.

71. It is also clear that, while Article 11 (Art. 11) mainly requires

that States should not interfere with the freedom of individuals to

join with others, or not to join with others, in trade unions or other

associations, it also imposes on States a duty to take certain positive

steps in order to ensure that the freedom to which the Article refers

can be effectively enjoyed and exercised (cf. Eur. Court H.R., Young,

James and Webster judgment of 13 August 1981, Series A no. 44, p. 20,

para. 49 and Plattform "Ärtzte für das Leben" judgment of 21 June 1988,

Series A no. 139, p. 12, para. 32).

72. In the present case, the Commission has to determine, first,

whether the applicant's negative freedom of association was at all

affected and, if so, whether the Swedish State was under an obligation

to protect it against that kind of action which was taken against the

applicant by HRF and other trade unions.

73. An element which could create some doubt as to whether the

applicant's negative freedom of association was at issue in the present

case is the fact that the action taken by HRF and other trade unions

was not directly aimed at making the applicant join an employers'

association. It can be assumed that HRF was not primarily interested

in increasing the membership of an employers' association, but its

purpose was rather to strengthen the collective bargaining system in

its area of activity and, in particular, to achieve the largest

possible acceptance and the widest possible application of the

collective agreement to which HRF was itself a party. This aim could

be achieved not only if the applicant became a member of HRAF but also

if he undertook to apply the collective agreement without becoming a

member of any association, namely by concluding a so-called substitute

agreement with HRF. As this second alternative existed, it could

therefore be argued that no attempt was made to force the applicant to

join an association which he did not wish to join.

74. On the other hand, the Commission must also take into account the

position of the applicant. His objections were directed not only

against formal membership of an association but also against

participation in the collective bargaining system. Neither the option

of joining HRAF nor that of signing a substitute agreement offered a

satisfactory solution, as in both cases he would have become bound by

a collective agreement with HRF.

75. The Commission notes that one of the most important effects of

membership of an employers' association under the system applied on the

Swedish labour market is that members agree to engage, through the

association, in collective bargaining and to be bound by any collective

agreement which the employers' association may conclude with the trade

union or unions concerned. Consequently, what was in reality at issue

in the present case was whether the applicant should refrain from

regulating his relations with his employees by means of private

contracts and instead undertake some of the obligations which are

normally one of the essential features of membership of an employers'

association. In these circumstances, it would be artificial and

formalistic to deny that the applicant's negative freedom of

association was affected, even though he had the possibility of

accepting these obligations without formally joining HRAF or any other

association.

76. The Commission is therefore of the opinion that the action taken

against the applicant affected his negative freedom of association, and

the remaining question is whether the pressure which was brought to

bear upon him was such as to require the State to take positive

measures of protection.

77. In this regard, it is important to note that Article 11 (Art. 11)

itself requires that trade unions as well as associations of employers

should enjoy a wide freedom to promote their interests and those of

their members. In Swedish law and practice, many matters regarding

labour relations are left to be regulated by the parties on the labour

market and State interference is kept to a minimum. Such a system is

in principle in line with the general ideas behind Article 11

(Art. 11). However, in specific circumstances the freedom enjoyed by

these parties can be abused, and the State must be considered to have

a duty to provide protection against such abuses.

78. The question whether there was in the present case an abuse which

required some kind of legal protection must be determined on the basis

of considerations of proportionality. In other words, it must be

assessed whether the action taken against the applicant had such

serious consequences for him that it could not be justified by HRF's

legitimate interest in promoting and strengthening the collective

bargaining system and in making the collective agreement it had

concluded - as well as those collective agreements which it would

conclude in the future - receive wide acceptance and application.

79. An important feature of the present case is that, when taking

action against the applicant, HRF did not represent any members

employed by the applicant. Most of the applicant's employees were not

members of HRF. The only employee who was a member of HRF had not asked

for HRF's assistance but had expressly stated that she found industrial

action unnecessary, as there was no reason to criticise salaries or

working conditions. It should also be observed that the conditions of

employment of the applicant's employees were more favourable than those

following from the collective agreement in force, and that the

application of that agreement would therefore not have improved their

conditions. In these circumstances, while it must still be accepted

that HRF had, to some extent, a legitimate interest in attempting to

make the collective agreement concluded by HRF binding also on the

applicant, that interest was somewhat diminished by the fact that HRF

was not acting on behalf of any members employed by the applicant and

could not expect, if the applicant became bound by the collective

agreement, that this would improve the situation of any of its members.

These elements are of special importance when considering whether the

industrial action could be regarded as proportionate.

80. The action against the applicant consisted in a blockade and

boycott which to a large extent prevented him from obtaining deliveries

of goods which were necessary for the running of his restaurant. This

must be seen as a very hard attack on his business which as a result

suffered considerably. The financial consequences for the applicant

must be assumed to have been important, and the Commission finds no

reason to doubt that this was the reason, or at least one of the

reasons, why the applicant finally found it necessary to sell the

restaurant.

81. Such harsh measures could only be justified if HRF had a strong

legitimate interest in forcing the applicant to sign a collective

agreement. Such an interest might have existed, in particular, if HRF

had acted on behalf of members whose economic or social conditions

would have been improved by the collective agreement, should it have

become applicable to them. However, for the reasons indicated above

(see para. 79), such was not the situation in the present case. The

Commission therefore considers that HRF's action must be considered to

have been disproportionate and that, in such circumstances, it was

incumbent on the State to provide for effective legal redress, for

instance by making available to the applicant legal procedures which

would have made it possible for him to mitigate or terminate the action

taken against him.

82. It is clear that no such legal protection existed in Swedish law.

Consequently, Article 11 (Art. 11) has been breached in the present

case.

83. The Commission considers that no further issue arises under

Article 17 (Art. 17) of the Convention.

CONCLUSION

84. The Commission concludes, by 13 votes to 4, that in the present

case there has been a violation of Article 11 (Art. 11) of the

Convention.

D. As regards Article 1 of Protocol No. 1 in conjunction with

Article 17 (P1-1+17) of the Convention

85. Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

86. The applicant complains that the failure on the part of the State

to provide protection against the industrial actions eventually forced

him to sell his restaurant, thereby violating his right to the peaceful

enjoyment of his possessions. As for the actual damage incurred, he

submits that the restaurant was sold "not without difficulties" at the

price of 900.000 SEK in 1991. Even considering the subsequent decrease

in the sales prices in the field, he estimates that it would now sell

for not less than 1.500.000 SEK. He concludes that no fair balance was

struck between the conflicting interests at stake, as he had to bear

the whole burden of the State's tolerance of the industrial actions.

87. The Government submit that Article 1 of Protocol No. 1

(Art. 1-P1) is not applicable. They again concede that the industrial

actions must have seriously affected the possibility for the applicant

to run his business establishment, this forming part of his property.

The State, however, did not prevent him from running the establishment,

nor did it in any other way interfere with his business activities. By

not prohibiting the industrial actions the State tolerated them, as it

does with many other activities on the open market. The refusal on the

part of the applicant's suppliers to deliver goods as well as the

possible negative effect on the goodwill of his business could also

have occurred as a result of events other than the industrial actions.

Such events would, however, have fallen within the scope of, for

instance, contract law. In such circumstances the State could not be

held responsible for the damage caused to the applicant's business. A

similar approach must be adopted also in the present case so as not to

make a Contracting State responsible for the non-fulfilment of private

contracts. The Government finally consider that the situation in the

present case is comparable to that at hand if a consumer boycott is

instituted against a certain company, even if such action led to its

bankruptcy.

88. Should the Commission consider Article 1 of Protocol No. 1 (P1-1)

to be applicable, the Government submit that the interference was

justified in view of the wide margin of appreciation afforded to the

Contracting States in this field. They specifically refer to the

particular features of the widely used system for collective bargaining

which for many years has kept industrial actions at a tolerable level

in Sweden, given that such actions are prohibited as long as a

collective agreement is in force. The Government concede, however, that

this system clearly favours the various associations of employees and

employers and disregards the interests of those who do not wish to be

enrolled in such an association. In any event, the applicant has not

substantiated the financial losses allegedly caused by the industrial

actions to his business and it is not possible for the Government to

assess to what extent this business was damaged.

89. Having regard to its above finding under Article 11 (Art. 11) of

the Convention, the Commission does not find it necessary to examine

the complaint under Article 1 of Protocol No. 1 (P1-1) in conjunction

with Article 17 (Art. 17) of the Convention.

CONCLUSION

90. The Commission concludes, by 11 votes to 6, that it is not

necessary to examine the complaint under Article 1 of Protocol No. 1

(P1-1) in conjunction with Article 17 (Art. 17) of the Convention.

E. As regards Article 6 para. 1 (Art. 6-1) of the Convention

91. Article 6 para. 1 (Art. 6-1) of the Convention reads, in its

relevant part:

"In the determination of his civil rights ..., everyone is

entitled to a ... hearing ... by [a] tribunal ..."

92. The applicant complains that the court remedies at his disposal

in order to obtain protection against the industrial actions would not

have been effective.

93. The Government do not exclude that Article 6 para. 1 (Art. 6-1)

is applicable. They consider that the dispute concerning the

justification of the industrial actions concerned the applicant's civil

rights and obligations, in particular as the actions must have

seriously harmed the possibility for him to run his business, thereby

affecting his property rights. The actions also interfered with his

freedom to conclude any agreement with his employees that he and they

saw fit. The applicant had certain court remedies at his disposal,

namely a claim for damages against the State, the unions and his

suppliers. He could also have requested an injunction in order to have

the industrial actions stopped. All these remedies would have enabled

the courts to examine the merits of the matter. However, as the

industrial actions were not in breach of criminal or contract law,

there would have been no legal basis for a ruling in favour of the

applicant, given the trade unions' right to take industrial action and

the absence of any domestic legal provision on the basis of which the

actions could have been challenged. The Government therefore doubt

whether, in this case, any court examination could be regarded as

effective for the purposes of Article 6 (Art. 6-1).

94. The Commission must first ascertain whether Article 6 para. 1

(Art. 6-1) of the Convention is applicable in the instant case and,

notably, whether there was a dispute over a "civil right" which can be

said, at least on arguable grounds, to be recognised under domestic

law. The dispute must be genuine and serious and its outcome must be

directly decisive for the right in question (e.g., Eur. Court H.R.,

Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B,

p. 38, para. 22).

95. The Commission recalls that, on the one hand, Article 6 para. 1

(Art. 6-1) is not aimed at creating new substantive rights without a

legal basis in the Contracting State, but at providing procedural

protection of rights already recognised in domestic law (e.g., Eur.

Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A

no. 121-A, p. 32-33, para. 73). On the other hand, the term "right"

must be given an autonomous interpretation under Article 6 para. 1

(Art. 6-1) of the Convention (e.g., Eur. Court H.R., König judgment of

28 June 1978, Series A no. 27, pp. 29-30, para. 88).

96. In the present case the Commission recalls that under domestic

law the applicant had no right to be protected from the industrial

actions at issue, since they were not contrary to Swedish law and not

in breach of an existing collective agreement. Accordingly, he could

not claim a "right" to such protection which could be said, on arguable

grounds, to be recognised under domestic law. The same considerations

apply in regard to the interference with his freedom to conclude any

agreement with his employees against which he could not arguably claim

any protection either, given the right afforded to trade unions to take

the industrial actions at issue. It follows that Article 6 para. 1

(Art. 6-1) does not apply.

CONCLUSION

97. The Commission concludes, by 16 votes to 1, that in the present

case there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

F. As regards Article 13 (Art. 13) of the Convention

98. Article 13 (Art. 13) of the Convention reads:

"Everyone whose rights and freedoms as set forth in this

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."

99. The applicant reiterates his complaint that the court remedies

at his disposal in order to obtain protection against the industrial

actions would not have been effective.

100. The Government admit that the applicant had no effective remedy

at his disposal, should the Commission conclude that there has been a

violation of either Article 11 (Art. 11) of the Convention or Article 1

of Protocol No. 1 (P1-1) or if it found that such a claim could be

argued on reasonable grounds. Should the Commission conclude that

Article 6 (Art. 6) has been violated, the Government submit that no

separate issue arises under Article 13 (Art. 13).

101. The Commission recalls that neither Article 13 (Art. 13) nor the

Convention in general lays down any given manner for ensuring within

their internal law the effective implementation of the Convention

(e.g., Eur. Court H.R., Silver and others judgment of 25 March 1983,

Series A no. 61, p. 42, para. 113). Article 13 (Art. 13) merely

guarantees the availability of a remedy at national level to enforce

the substance of the Convention rights and freedoms in whatever form

they may happen to be secured in the domestic legal order. Its effect

is thus to require the provision of a domestic remedy allowing the

competent "national authority" both to deal with the substance of the

relevant Convention complaint and to grant appropriate relief.

Article 13 (Art. 13) does not, however, go so far as to require any

particular form of remedy, Contracting States being afforded a margin

of discretion in conforming to their obligations under this provision.

Nor does the effectiveness of a remedy for the purposes of Article 13

(Art. 13) depend on the certainty of a favourable outcome for the

applicant (e.g., Eur. Court H.R., Vilvarajah and others judgment of

30 October 1991, Series A no. 215, p. 39, para. 122).

102. In view of its above considerations with regard to the complaint

under Articles 11 (Art. 11) of the Convention, the Commission considers

that the applicant's claims under those provisions were "arguable" on

their merits (cf. Eur. Court H.R., Powell and Rayner judgment of

21 February 1990, Series A no. 172, p. 20, para. 46).

103. It is not in dispute that no effective court or other remedy was

available to the applicant, given that the industrial actions were not

contrary to Swedish law or in breach of an existing collective

agreement.

CONCLUSION

104. The Commission concludes, by 14 votes to 3, that in the present

case there has been a violation of Article 13 (Art. 13) of the

Convention.

G. Recapitulation

105. The Commission concludes, by 13 votes to 4, that in the present

case there has been a violation of Article 11 (Art. 11) of the

Convention (para. 84).

106. The Commission concludes, by 11 votes to 6, that it is not

necessary to examine the complaint under Article 1 of Protocol No. 1

in conjunction with Article 17 (P1-1+17) of the Convention (para. 90).

107. The Commission concludes, by 16 votes to 1, that in the present

case there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention (para. 97).

108. The Commission concludes, by 14 votes to 3, that in the present

case there has been a violation of Article 13 (Art. 13) of the

Convention (para. 104).

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (C.L. ROZAKIS)

(Or. English)

PARTLY DISSENTING OPINION OF MR. G. JÖRUNDSSON

I do not agree with the majority of the Commission that there has

been a violation of Article 11 in this case.

The action taken by HRF and other trade unions was not directly

aimed at making the applicant join an employers' association. It can

be assumed that its purpose was rather to strengthen the collective

bargaining system in its area of activity and, in particular, to

achieve the largest possible acceptance of the collective agreement to

which HRF was itself a party.

In my opinion, a particular regard must be had to the requirement

inherent in the positive freedom of association explicitly afforded to

trade unions that they should be able to strive for the protection of

their members' interests. Requiring State protection of the negative

freedom of association by limiting the possibilities of unions to

institute industrial actions could jeopardise the positive aspect of

that very freedom. This would be contrary to the very essence and

spirit of Article 11.

Moreover, it is clear that it would have been possible for the

applicant to undertake to apply the collective agreement without

becoming a member of any association. This he could have done by

concluding a so-called substitute agreement with HRF.

It is true that at least one of the proposed substitute

agreements would also have compelled the applicant to engage only

members or members-to-be of HRF and that both substitute agreements

proposed would have entailed an obligation to comply with certain other

conditions such as the obligation to contract insurances within the

framework "Labour Market Insurances" developed by central parties on

the labour market. In my view, however, the contents of those

agreements were not tantamount to a forced de facto membership in an

employers' association contrary to Article 11.

Having regard to all the circumstances of the case, I have

reached the conclusion that there has been no failure on the part of

the respondent State to ensure the negative aspect of the applicant's

right to freedom of association, as guaranteed by Article 11, and,

accordingly, that there has been no violation of Article 11 in the

present case.

(Or. English)

PARTLY DISSENTING OPINION OF MM. TRECHSEL AND BRATZA

While we are in agreement with all the other findings of the

majority, we regret that we have to dissent on the issue raised under

Article 13 of the Convention for the following reason:

The Commission found a violation of Article 11 of the Convention

in that the State failed to secure to the applicant the enjoyment of

his freedom of association. This violation consists in the absence of

effective protection against industrial action which was regarded as

excessive and unjustified.

We are of the opinion that this finding answers also the

allegation that the applicant did not enjoy the right to an effective

remedy. This leads us to the conclusion that no separate issue arises

under Article 13 in the present case.

PARTLY DISSENTING AND PARTLY CONCURRING OPINION

OF MRS. JANE LIDDY, JOINED BY Mr. I. CABRAL BARRETO

As to Article 11

1. The Court has stated that compulsion to join a particular trade

union may not always be contrary to the Convention, but if the

compulsion takes a form which "strikes at the very substance" of the

freedom of association, there may be a violation of Article 11

(Eur. Court H.R., Young, James and Webster judgment of 13 August 1981,

Series A no. 44, pp. 22-23, para. 55).

2. In the present case the applicant was not compelled to join any

association. He was put under severe pressure by trade unions to sign

an agreement undertaking to apply the collective labour agreement

concluded between employers' associations and the Hotel and Restaurant

Workers Union, which in turn would have put pressure on him to

reorganise his workforce and their conditions of employment.

3. This pressure on the applicant to refrain from regulating his

relations with his employees by means of private contracts leads the

majority to conclude that the applicant's freedom of association was

"affected". They do not go so far as to say that the compulsion struck

at the very substance of freedom of association.

4. The Commission has stated that the "term `association'

presupposes a voluntary grouping for a common goal" (Young, James and

Webster v. the United Kingdom, Comm. Report 14.12.79, Series B no. 39,

p. 47, p. 167). In the present case, the applicant was quite free to

remain outside any "grouping". He was free not to become a member of

any association. The pecuniary effects of the coercion to which he was

subjected fall, in my view, for consideration under Article 1 of

Protocol No. 1.

5. In the circumstances, I consider that the coercion applied by the

trade unions did not strike at the very substance of the applicant's

negative freedom of association, and that, accordingly, there has been

no violation of Article 11.

As to Article 1 of Protocol No. 1

6. The majority have accepted that the blockade and boycott to which

the applicant's business was subjected had such severe financial

consequences that the applicant finally found it necessary to sell his

restaurant. I agree with this assessment.

7. The first sentence of Article 1 of Protocol No. 1 reads "Every

natural or legal person is entitled to the peaceful enjoyment of his

possessions". The question arises as to whether this provision imposed

a positive obligation on the State to protect the applicant from

industrial actions on the ground that they were disproportionate in

view of the conflicting interests to be balanced. Such an obligation

would imply a requirement to provide a legal framework within which an

allegedly unjustified action could be challenged by reference to the

competing interests.

8. The Court has stated that the first sentence of Article 1 of

Protocol No. 1 requires a fair balance to be struck between the demands

of the general interest of the community and the requirements of the

protection of the individual's fundamental rights. Where a feature of

the law concerning expropriation was its inflexibility, where the law

excluded the possibility of reassessing at intervals the interest of

the City of Stockholm and the interests of property owners and where

the law did not provide for a reduction of time-limits or for

compensation, the Court took the view that "it was in [the applicants']

legal situation itself that the requisite balance was no longer to be

found" (the above-mentioned Eur. Court H.R., Sporrong and Lönnroth

judgment, pp. 26-28, paras. 70-73).

9. I consider that a distinction can be made between State

intervention in a labour conflict and intervention in normal business

activities on the open market. Neither type of intervention is,

however, uncommon in at least some member States. State bodies may

actively intervene to restore industrial peace. Legislation may allow

for the modification of unreasonable conditions in the field of

contract law. Above all, the State has an overall responsibility for

the setting up of a judicial framework within which disputes between

private parties may be resolved.

10. In the present case it does not appear that the industrial

actions served any genuine interest to maximise industrial peace or any

genuine interest of the applicant's employees, whose employment

conditions were better than if their contracts had been governed by a

collective agreement. Moreover, the applicant was placed in a dilemma.

One of the substitute agreements proposed to him contained a "closed

shop" clause prohibiting him from hiring employees who were not members

or prospective members of the Hotel and Restaurant Workers Union. Had

he signed this agreement, he would have been faced with the dilemma

either of violating the re-employment clause in his contracts with all

but one of his employees, or trying to require those employees to

become members of the union, although such a membership had not been

a requirement at the time of their initial employment. In the event,

he was obliged to sell his restaurant.

11. The emerging picture is thus essentially that of a weaker party -

the applicant - trying to fend off actions interfering with his

property rights and contracts taken by a stronger party - the unions -

in order to become an instrument in goals that were not his own, and

which he was not legally bound to fulfil. I note that from 1994 legal

protection in this field is available in Sweden to individuals who are

self-employed or who employ only family members.

12. Having regard to all the circumstances, I consider that the

tolerance on the part of the State of the industrial actions against

the applicant's business made him bear an individual and excessive

burden which could have been rendered legitimate only if he had had the

possibility of effectively challenging the actions so that the

competing interests could be independently assessed at domestic level.

No such possibility existed under domestic law. The fair balance to be

struck between the general interest in tolerating the industrial

actions at issue and the applicant's right to the peaceful enjoyment

of his possessions was therefore upset. I see no further issue under

Article 17, but conclude that there has been a violation of Article 1

of Protocol No. 1.

As to Article 6

13. I agree with the majority that, for the reasons given in the

Report, there has been no violation of Article 6.

As to Article 13

14. The complaints under both Article 11 and Article 1 of

Protocol No. 1 were "arguable". I agree with the majority that because

no effective court or other remedy was available to the applicant,

there has been a violation of Article 13.

(Or. French)

PARTLY DISSENTING OPINION OF MR. B. CONFORTI

J'ai voté contre la décision de constater une violation de l'art.

11 de la Convention pour la raison suivante.

Comme la Cour l'a dit dans l'affaire Sigurjónsson, la liberté de

ne pas s'associer, et notamment de ne pas s'affilier à un syndicat, est

protégée par l'art. 11. Or, le problème essentiel qui se pose à mon

avis dans la présente affaire est de savoir si la liberté de ne pas

s'affilier à un syndicat peut être poussée jusqu'à couvrir la liberté

de refuser l'application d'un contrat collectif de travail. Je crois

que la réponse doit être négative, le système de négociation collective

étant l'une des plus importantes conquêtes de nos societés

démocratiques. Dans plusieurs pays les contrats collectifs s'imposent

obligatoirement à tous les employeurs et travailleurs qui appartiennent

aux catégories auxquelles ils s'adressent, et cela indépendamment de

l'appartenance aux syndicats contractants. En Italie, par exemple,

l'art. 39, al. 4, de la Constitution prevoit que "Les syndicats...,

dument représentés proportionnellement à leurs membres, peuvent

conclure des contrats collectifs de travail avec force contraignante

pour ceux qui appartiennent aux catégories auxquelles le contrat se

réfère". Dans d'autres pays, tels que la France, l'Allemagne et le

Portugal, la même force contraignante peut être attibuée aux contrats

collectifs par la loi. Devons-nous dire que tout cela enfreint l'art.

11 en raison du fait que ce dernier protège la liberté de ne pas

s'associer ? Ce serait attribuer à l'art. 11 la volonté d'effacer toute

une tradition qui correspond encore largement aux valeurs sociales

communes aux Etats contractants.

On peut se demander si, au temps des societés post-industrielles,

on ne devrait désormais favoriser l'"individuel" par rapport au

"collectif", et donc, dans le domaine de la liberté syndicale et des

conditions de travail, accorder une liberté plus large aux

particuliers. Evidemment la reponse n'est pas du ressort des organes

de Strasbourg mais de chaque Etat contractant par rapport aux

particularités de sa propre communauté.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

1 July 1989 Introduction of application

4 October 1989 Registration of application

Examination of admissibility

14 October 1992 Commission's decision (Second Chamber) to

communicate the case to the respondent

Government and to invite the parties to

submit observations on admissibility and

merits

1 April 1993 Government's observations

5 July 1993 Commission's grant of legal aid

23 June 1993 Applicant's observations in reply

11 January 1994 Reference to the plenary Commission

17 January 1994 Commission's decision to hold a hearing

8 April 1994 Hearing on admissibility and merits

8 April 1994 Commission's decision to declare

application admissible

15 April 1994 Commission's adoption of text of decision

on admissibility

Examination of the merits

22 April 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

1 June 1994 Government's observations

2 June 1994 Applicant's observations

3 September 1994 Commission's consideration of state of

proceedings

10 January 1995 Commission's deliberations on the merits,

final vote, consideration of text of the

Report and adoption of Report

Menu

GUSTAFSSON v. SWEDEN

GUSTAFSSON v. SWEDEN