THE FACTS

I.   Basic facts not in dispute between the Parties

The applicant is an association of Swedish pilots, founded in 1904, for

the purpose of safeguarding and forwarding the professional interests

of its members. According to the applicant, 84 per cent of all Swedish

pilots belong to the association.

It is represented by Mr. Olle Kindblom, a lawyer practising in

Stockholm. The application was originally introduced by the

intermediary of the European Maritime Pilots' Association. On 18

December 1970, the Commission decided, however, that only the Swedish

Pilots' Association - and not the European Association - should be

regarded as a party to the case.

In its observations on the admissibility the respondent Government has

given a detailed summary of the facts of the case. The applicant has

stated in reply that the summary appears to be largely correct. The

basic facts set out below have been taken from the Government's

observations. As they have not been contested by the applicant and

agree with the presentation of facts made in the submissions on behalf

of the applicant, they are taken not to be in dispute between the

Parties.

1.   As to collective agreements relating to State employees in Sweden

in general

The National Collective Bargaining Office, (Statens avtalsverk,

hereinafter referred to as SAV) is a public body which, on behalf of

the Swedish State, negotiates terms of employment and conditions of

work with different categories of State employees. The large majority

of Swedish State employees are members of unions or associations which

protect their professional interests, as regards salaries and

conditions of work. Most of these unions and associations are in their

turn affiliated to one of the major labour organisations in Sweden.

Consequently, the collective agreement which SAV concludes with these

major organisations become binding on the large majority of State

employees.

A small number of unions and associations are not, however, affiliated

to the major labour organisations and their members are therefore not

directly affected by the agreements concluded between SAV and the major

organisations. According to Section 4 of the Royal Ordinance of 30 June

1965, regarding certain collective labour agreements concluded by the

State etc. a public authority which is bound by a collective agreement

shall, however, apply the terms of the agreement also in regard to

employees who are not covered by the agreement, provided that they

belong to a profession and work within a sector dealt with in the

agreement and that no other collective agreement has been concluded in

regard to these employees.

2.   As to the facts

During the years 1966 to 1968, the salaries of Swedish State employees

and certain other terms of employment were laid down in a general

agreement which had been concluded by SAV, on the one hand, and four

major labour organisations, on the other. When this agreement was

concluded, the applicant association was affiliated to one of these

four organisations, namely, the Civil Servants Section of the Swedish

Central Organisation of Salaried Employees (Tjänstemännens

Centralorganisations statstjänstemannasektion, hereinafter referred to

as TCO-S). Consequently, the general agreement was binding on the

applicant and its members. On 1 July 1967, the applicant withdrew from

TCO-S. Nevertheless, under Swedish law, the general agreement remained

binding on the applicant until its expiry.

The general agreement for the years 1966 to 1968 provided that it

should automatically be prolonged by one year, unless notice was given

before 1 October 1968. The applicant, for its part, gave notice by

letter of 23 September 1968. Consequently, the general agreement

expired on 31 December 1968, insofar as the relations between the State

and the applicant were concerned.

At the end of 1968, the applicant requested a meeting with SAV in order

to discuss a temporary prolongation of the general agreement pending

the conclusion of a new agreement with SAV. A meeting was held on 30

December 1968. It appears from the minutes of this meeting that SAV was

not willing to sign an agreement with the applicant regarding a

temporary prolongation of the general agreement. The refusal of SAV to

prolong the agreement in regard to the applicant did not mean, however,

that the salaries or other benefits which the members of the applicant

received were in any way reduced after the expiry of the agreement on

31 December 1968. In fact, SAV had concluded a prolongation agreement

with TCO-S, whose membership included a certain number of pilots, and

according to the 1965 Ordinance referred to above, the State was bound

to apply the same terms of employment to pilots who were members of the

applicant. Consequently, the general agreement remained applicable to

the members of the applicant as an indirect result of the prolongation

agreement with TCO-S despite the fact that no separate prolongations

agreement had been concluded with the applicant.

By letter of 13 March 1969 the applicant asked for negotiations with

a view of concluding, inter alia, an agreement regarding salaries and

a separate agreement regarding working hours. A meeting between SAV and

the applicant was held on 10 April  1969. From the minutes of this

meeting it appears that, with one exception, SAV was only willing to

enter into collective agreements with the major labour organisations.

The minutes show that SAV communicated to the applicant certain

proposals regarding salaries in 1969 and 1970 which it had submitted

to the major labour organisations, including TCO-S. The applicant was

thereby given the opportunity of stating its views on these proposals

which also concerned the salaries of the pilots. The representative of

SAV gave some oral explanations in regard to the proposals and

undertook to keep the applicant informed of the development of SAV's

negotiations with the major organisations. They also declared their

willingness to discuss with the applicant the terms of employment of

pilots, although SAV did not intend to conclude a separate agreement

with the applicant. As explained above an agreement with SAV and TCO-S

would, however, be applicable also to members of the applicant, if no

agreement had been concluded with that organisation. It further appears

from the minutes of the meeting on 10 April 1969 that SAV intended to

submit a proposal for a working hours agreement.

Later on the same day, i.e. 10 April 1969, the applicant informed SAV

that it did not intend to pursue the negotiations and gave notice of

its intention to proclaim a strike and a blockade as from 16 April

1969.On 18 April 1969 the King-in-Council appointed a conciliator to mediate

between the parties. Meeting were held before the conciliator on 19,

24 and 29 April 1969. On 19 April 1969 SAV submitted to the conciliator

a proposal which it had already presented to the major labour

organisations. SAV indicated that this proposal also concerned the

salaries which would apply to members of the applicant but maintained

at the same time its refusal to conclude a separate agreement with the

applicant. The conciliator subsequently informed SAV that the applicant

insisted on a formal agreement with SAV and did not wish to comment on

the substance of the SAV proposal. On 29 April 1969 the applicant

declared that the negotiations before the conciliator were terminated

and that the strike and the blockade which had been postponed pending

these negotiations would be put into effect on 30 April 1969. On 5 May

1969, SAV retaliated by proclaiming a lockout of members of the

applicant as from 13 May 1969.

On 13 May 1969 the applicant instituted proceedings against SAV before

the Labour Court (arbetsdomstolen)  In these proceedings, the applicant

alleged that SAV had violated Section 4 of the 1936 Act regarding the

right to organise and to negotiate. This Section guarantees the right

to negotiate which is defined as the right to demand negotiations

regarding the terms of employment or other relations between employers

and employees. Holders of this right are, on the one hand, any employer

or association of employers and, on the other hand, any union of

employees. If one party has the right to negotiate, the other party is

obliged to enter into negotiations.

In its judgment which was given on 22 May 1969, the Labour Court

pointed out that the obligation to negotiate could not be construed as

imposing on any of the parties an obligation to arrive at an agreement

with the other party. In fact, SAV and the applicant were agreed on

this point.  The Court further stated that if one party declares in the

beginning of the negotiations that he does not wish to conclude a

collective agreement with the other party, this is not in itself a

violation of his obligation to negotiate. Such a declaration does not,

however, "relieve the party concerned of the obligation to discuss, at

the request of the other party, both the form in which a settlement of

the points at issue would be effected and the substantive questions

regarding the terms of employment of the employees concerned". On this

basis and after examining the facts of the case, the Court concluded

that SAV had not violated its obligation to negotiate with the

applicant.

The strike and the lockout continued until 24 May 1969. In May and June

1969, the conciliator held some further meeting with the parties who

both adhered to the positions they had taken previously. No settlement

could therefore be achieved, and at the last meeting which was held on

26 June 1969 the conciliator concluded that in view of the attitudes

taken by the parties his mission had been completed.

On 12 July 1969, a new general agreement for the years 1969 to 1970 was

concluded by SAV and TCO-S. For the reasons set out above, the terms

of this agreement became applicable also to the members of the

applicant.

On 1 March 1970, the applicant joined one of the major labour

organisations, namely, the Swedish Confederation of Professional

Associations (Sveriges Akademikers Centralorganisation, hereinafter

referred to as SACO). Consequently, from this date the agreement in

force between SAV and SACO which contained rules concerning the terms

of employment of pilots, was binding on the applicant's members.

II.  The applicant's complaints

The applicant alleges a violation of Article 11 of the Convention. The

specific complaints made on behalf of the applicant in the original

submissions may be summarised as follows:

(a)  The applicant claims that the pilots have been denied their

rights under Swedish law. By making it clear already at the outset of

the negotiations that SAV did not intend to conclude an agreement with

the applicant, SAV acted contrary both to the letter and the spirit of

Swedish law.

(b)  It is further submitted that SAV ignored the obligation placed

upon the State by the Labour Court. The applicant contends that,

encourage by the findings in the judgment of the Court, it instigated

further negotiations before the conciliator requesting that they should

be positive in intent and designed to determine new conditions of

employment for the pilots. SAV persisted, however, in its

uncompromising attitude towards the applicant.

(c)  The applicant complains that it was the deliberate policy of SAV

to suppress or destroy the applicant as an effective organisation

representing the Swedish pilots by forcing them to join an organisation

of the State's own choosing. In this connection, the applicant alleges

that the Director of SAV publicly states that SAV was determined to

carry its refusal to enter into collective agreements with

organisations, such as the applicant, to such a point that they would

be forced to join a major labour organisation out of a sense of

frustration.

III. Submissions of the Parties

1.   As to the facts

The respondent Government firmly contests the allegations that the

Swedish pilots have been denied their rights under Swedish law and that

the obligations placed upon the State by the Labour Court were ignored

by the SAV. It also refutes, as being equally unjustified, the

assertion that the attitude adopted by SAV at the negotiations was

contrary to the spirit and the letter of Swedish law. In this respect

the Government refers to the judgment of the Labour Court which

precisely contains the conclusion that SAV had not failed in its

obligations under Swedish law. The subsequent events cannot in any way

justify a different conclusion.

The Government also contests the allegation that the policy pursued by

SAV was aimed at suppressing or destroying the applicant as an

effective organisation by forcing it to join a major labour

organisation. It is submitted that, in establishing its general policy,

SAV started from the idea that it was not obliged to conclude a

collective agreement with any organisation. SAV was therefore free to

determine whether it should only conclude collective agreements with

major organisations or whether it should also be prepared to sign

agreements with other organisations representing special groups of

employees. When preferring, in principle, the firs alternative, SAV

wished to discourage a further disintegration of the unions

representing State employees. Such disintegration would entail risk of

strikes and of other separate action by small groups of employees

wishing to enforce their special claims. The policy which SAV adopted

was therefore aimed at securing stability and maintaining peaceful

relations on the labour market. It was in no way directed only against

the applicant, since SAV has been equally reluctant to pass collective

agreements with nearly all other unions which were not affiliated to

the major labour organisations.

As regards the public statement allegedly made by the Director of SAV

the Government has been unable to identify it and is not prepared to

confirm that the Director expressed himself in the terms indicated by

the applicant.

In its observations in reply the applicant has adhered to its original

allegations.

Referring to the Act of  1936, regarding the right to organise and to

negotiate, the applicant states that the Act, while imposing an

obligation to negotiate, does not provide for any right to obtain a

collective agreement with the other party, this does not mean that it

has neglected its duty to negotiate. On the other hand, the Court held

that such a declaration does not relieve the party concerned of the

obligation to discuss, at the request of the other party, both the form

in which a settlement of the points at issue could be effected and the

substantive questions regarding the terms of employment. In the

applicant's submission, the only form of agreement between employer and

employee recognised by Swedish law, is in fact a collective agreement.

As regards the duty to negotiate on terms of employment, this is

exactly what the applicant asked for but did not obtain. According to

the applicant, it has not proved possible to get any explanation of

this contradictory statement since the Labour Court has exclusive

jurisdiction and no appeal lies against its decisions.

The applicant claims that SAV has refused the applicant its lawful

right to negotiate. This could have been avoided if SAV from the outset

had made it clear to the applicant that it could not expect any other

collective agreement that signed with TCO-S. In Swedish labour law such

an agreement is called an "accessory agreement". Despite the fact that

their attention had been drawn to this, SAV also refused to make such

an agreement with the applicant.

2.   Arguments as to the admissibility

(a) As to whether the applicant has complied with the six months' rule

The respondent Government has submitted as follows:

In its application, the applicant alleges that SAV violated its right

to freedom of association as guaranteed by Article 11 of the

Convention. In the applicant's submission, this violation consisted of

the refusal of SAV to conduct negotiations with a view to concluding

an agreement with the applicant. While alleging that this refusal also

contravened the Swedish Act regarding the right to organise and to

negotiate, the applicant first introduced proceedings before the Labour

Court which rendered its judgment on 22 May 1969. There was no appeal

from this judgment, nor was there under Swedish law any other domestic

remedy in respect of this complaint. Consequently, the judgment of the

Labour Court is the final decision within the meaning of Article 26 of

the Convention. The present application, however, was not lodged with

the Commission until 17 February 1970, i.e. more than six months after

the date of the final domestic decision. The application is therefore

inadmissible according to Article 27 (3) of the Convention.

The applicant submits that the Government's objection in this respect

should be disregarded. As already stated no appeal can be lodged

against decisions by the Labour Court. When judgment had been given,

the applicant addressed itself to Mr. Tage Erlander, the Swedish Prime

Minister at that time, and the Chairman of the Association requested

a meeting with him in the autumn of 1969. The applicant was therefore

trying to obtain redress from the Swedish Government for the way it had

been treated. Mr. Erlander was unable to meet the Chairman and this led

to the latter writing again in March 1970. In the applicant's opinion,

the six months' should apply from the date that all possibility of

redress had been exhausted and this had not in fact been the case until

the Prime Minister's reply was received in April 1970.

(b)  As to whether the application is manifestly ill-founded

The respondent Government submits that, if the Commission should not

declare the application inadmissible on the ground invoked under (a),

it is important to consider whether the acts complained of could

possibly constitute a violation of Article 11 of the Convention.

As to the substance of the allegations made by the applicant (see II

above) the Government states that, although SAV declared its intention

not to conclude an agreement with the applicant, it was quite prepared

to discuss with the applicant the salaries and other terms of

employment which were to apply to pilots during 1969-70. These terms

were to be included in an agreement between SAV and TCO-S and would

therefore apply also in regard to the members of the applicant. The

Government further recalls that it contests the applicant's allegation

that the aim of SAV was to force the applicant to join a major

organisation.

Referring to the terms of Article 11 of the Convention, the Government

submits that in the present case, only the freedom of association is

at issue, and it is necessary to consider the meaning and scope of the

term "freedom of association".

Some clarification is provided by Article 11 itself, which indicates

that the right to form and to join trade unions is included in the

concept of "freedom of association". It is clear that the right to form

and to join trade unions has not been violated in the present case. The

pilots have not been denied the right to form or to join the applicant

and the applicant has been free, in its turn, to join first TCO-S and

later SACO.

However, the wording of Article 11 indicates that freedom of

association also includes other elements that the right to form and to

join trade unions. The travaux préparatoires of the Convention show

that the provisions of Article 11 were in substance taken from Articles

20 and 23 (4) of the Universal Declaration of Human Rights. It should

be observed, however, that the Convention contains no provision

corresponding to Article 20 (2) of the Universal Declaration which

provides that no one may be compelled to belong to an association. It

appears from the travaux préparatoires that this provision was omitted

on account of the difficulties that it would create in certain

countries. It may be interesting to notice this omission in the present

case, where it is suggested that an attempt has been made to compel the

applicant to join a major organisation. Nevertheless, the Government

does not wish to draw any definite conclusions on this point, in

particular, since the Commission has already stated in a recent

decision that the notion of "freedom of association" also implies

freedom not to join a trade union (Application No. 4072/68, Collection

of Decisions, Vol. 32, p. 86).

For the purpose of defining the concept of "freedom of association" it

is important to study the 1948 ILO Convention concerning freedom of

association and protection of the right to organise. This Convention

sets out in some detail the different elements which are inherent in

the freedom of association, and the Government considers that these

elements should also be taken into account for the purpose of

interpreting Article 11 of the European Convention. According to the

ILO Convention, the freedom of association includes in particular the

following rights. Workers and employers, without distinction

whatsoever, shall have the right to establish and, subject only to the

rules of the organisation concerned, to join organisations of their own

choosing without previous authorization (Article 2). Workers' and

employers' organisations shall have the right to draw up their

constitutions and rules, to elect their representative in full freedom,

to organise their administration and activities and to refrain from any

interference which would restrict this right to impede the lawful

exercise thereof (Article 3). Workers' and employers' organisations

shall not be liable to be dissolved or suspended by administrative

authority (Article 4). Workers' and employers' organisations shall have

the right to establish and join federations and confederations and any

such organisations, federation or confederation shall have the right

to affiliate with international organisations of workers and employers

(Article 5).

Reference should also be made to certain other international agreements

which have been concluded after the European Convention and contain

provisions about the freedom of association.

One of these agreements is the European Social Charter. It is true that

this Charter does not expressly refer to " the freedom of association",

but the terms used are "the right to organise" (Article 6). It is

required that national law shall not be such as to impair, nor shall

it be so applied as to impair, the freedom of workers and employers to

form local, national or international organisations for the protection

of their economic and social interests and to join those organisations

(Article 5). Moreover, the Contracting Parties shall promote joint

consultation between workers and employers and, where necessary and

appropriate, machinery for voluntary negotiations between employers or

employers' organisations and workers' organisations, with a view to the

regulation of terms and conditions of employment by means of collective

agreements. They shall also promote the establishment and use of

appropriate machinery for conciliation and voluntary arbitration for

the settlement of labour disputes and recognise the right of workers

and employers to collective action in cases of conflicts of interest,

including the right to strike, subject to obligations that might arise

out of collective agreements previously entered into (Article 6).

Certain provisions which are relevant to the point at issue in this

case are to be found in the two International Covenants on Human

Rights. The International Covenant on Economic, Social and Cultural

Rights guarantees the right of everyone to form trade unions and join

the trade union of his choice, subject only to the rules of the

organisation concerned, for the promotion and protection of his

economic and social interests, as well as the right of trade unions to

establish national federations or confederations and the right of the

latter to form or join international trade union organisations. It also

protects the right to form and join trade unions for the protection of

his interests (Article 22).

The general conclusion that can be drawn from these different

international instruments seems, in the Government's submission, to be

that the purpose of the international rules concerning the freedom of

association is to guarantee that the activities of trade unions and

employers' organisations are not impeded by legislative, administrative

or other measures taken by the State in the exercise of its public

functions. These rules do not however, affect the relations between the

parties on the labour market. They do not impose on employers or

employers' organisations any obligations towards the unions, nor do

they create any obligations for the trade unions or to conclude

agreements with them  It is true that Swedish law provides for a right

to negotiate, but when doing so, Swedish law gives employees, employers

and their organisations more extensive rights than can be derived from

the European Convention or indeed from any of the international

agreements referred to here.

When negotiating and concluding collective agreements with

organisations representing its employees, the State does not exercise

public functions. In fact, the legal relations between the State and

the labour organisations are, insofar as such negotiations and

agreements are concerned, the same as those which exist between any

other employer and the trade unions. It has already been stated that

the European Convention does not affect the relations between the

parties on the labour market, and this statement must obviously be

valid even when one of these parties is the State.

The conclusions is therefore, in the present case, that the State was

free to conclude or not conclude an agreement with the applicant, and

it was not even obliged, under the Convention, to enter into

negotiations with the applicant. The obligation to negotiate did not

result from the Convention but from the Swedish national law, and

although it is not directly relevant in the present case, it is

recalled that the Labour Court considered SAV to have complied also

with this obligation.

It follows in the opinion of the respondent Government, that the acts

complained of cannot possibly have constituted a violation of the right

to freedom of association as guaranteed by Article 11 of the

Convention. In fact, the allegations made by the applicant are based

on a very extensive interpretation of the concept of "freedom of

association" which is inconsistent both with the sense given to this

concept in other international instruments and with the cautious and

rather restrictive interpretation which the Commission has previously

adopted in regard to Article 11 (see application NO. 1028/61,

Collection of Decisions, Vol. 6, p. 77, where it was held that the

right to participate in the administration or the management of an

association is not included in the concept of "freedom of

association").

On these grounds, the Government is of the opinion that the application

is also inadmissible as manifestly ill-founded within the meaning of

Article 27, paragraph (2), of the Convention.

In its observations in reply the applicant maintains that the attitude

adopted by SAV towards it amounts to a violation of Article 11 of the

Convention. The applicant emphasises that all different categories of

State employees in Sweden have only one employer - the Swedish State

for which SAV negotiates. It is no understatement to say that SAV acts

on the Government's instructions although it claims to be a totally

independent office. The situation on the Swedish private labour market

is, in the applicant's opinion, entirely different. Although the

Swedish Employers' Confederation (Svenska Arbetsgivareföreningen) acts

on behalf of the private employers, these cannot influence the

activities of the Confederation to the same extent as the Government

influences SAV. These facts should be borne in mind when considering

SAV's treatment of the applicant.

The applicant has not directly commented on the interpretation of the

concept of "freedom of association" within the meaning of Article 11

of the Convention.

THE LAW

The applicant has alleged that the refusal of the National Collective

Bargaining Office (SAV) to conduct negotiations with the applicant with

a view of concluding a collective agreement violated Article 11

(Art. 11) of the Convention which guarantees the right to "freedom of

association with others, including the right to form and to join trade

unions for the protection of his interests". The applicant has also

complained that this refusal was inconsistent with the relevant

provisions of the Swedish Act of 1936 regarding the right to organise

and to negotiate and that the policy adopted by SAV in this respect was

intended to suppress or destroy the applicant as an effective

organisation representing the Swedish pilots by forcing them to join

a major labour organisation.

The respondent Government has first submitted that the application

should be rejected as inadmissible under Article 25 (Art. 25) of the

Convention on the ground that it was lodged with the Commission more

than six months after the judgment of the Labour Court of 22 May 1969,

this being the "final decision" within the meaning of Article 26

(Art. 26). In this connection, the Government has emphasised that the

applicant's allegation that the refusal of SAV contravened the 1936 Act

formed the basis of the proceedings before the Labour Court.

In the alternative, the respondent Government - which also contested

the allegations that the aim of SAV was to force the applicant to join

a major labour organisation and that the applicant has been denied its

rights under Swedish law - has submitted that the application is

manifestly ill-founded as the acts complained of could not possibly

have constituted a violation of the right to freedom of association as

guaranteed by Article 11 (Art. 11) of the Convention. In this

connection, the Government has referred to certain other international

agreements which contain provisions regarding freedom of association.

In the Government's submission the State was, in the present case, free

to conclude, or not to conclude, an agreement with the applicant and

in this connection it was not even obliged, under the Convention, to

enter into negotiations with the applicant. Although under Swedish law

there was an obligation to negotiate, the Labour Court considered SAV

to have complied with that obligation.

Having carried out a preliminary examination of the application in the

light of the information and arguments presented by the Parties, the

Commission finds that it raises complex and important issues of facts

and law, in particular, regarding the interpretation of the concept of

"freedom of association" in Article 11 (Art. 11) of the Convention in

relation to trade unions. The Commission considers that the

determination of these issues should depend on an examination of the

merits of the case. The application, cannot, therefore, be regarded as

manifestly ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

However, the Commission has also had regard to the respondent

Government's submission that the Labour Court's decision of 22 May 1969

was the final decision within the meaning of Article 26 (Art. 26) and

that the present application which was lodged on 17 February 1970, has

thus not conformed with the six months' rule laid down in Article 26

(Art. 26). The Commission considers that the determination of this

issue is closely linked with the previous question of the scope of the

provisions of Article 11 (Art. 11) regarding the freedom of association

in relation to trade unions. In particular, the question whether the

Labour Court's decision is the final decision within the meaning of

Article 26 (Art. 26) depends upon the question whether the Labour Court

was, in the circumstances, competent to correct the violation of the

Convention now alleged by the applicant. This again depends upon the

question whether Swedish law and in particular the 1936 Act, which

bound the Labour Court, were in conformity with Article 11 (Art. 11)

of the Convention. This question involves a study of Swedish law and

an interpretation of Article 11 (Art. 11) and is obviously closely

linked to this substantial issue whose determination by the Commission

will depend upon an examination of the merits of the case. The

applicant has also alleged that, even after the Labour Court's decision

SAV persisted in its refusal to negotiate with a view to conclude a

collective agreement and the Commission considers that this may raise

a question of a continuing violation which again may effect the

significance of the Labour Court's decision in relation to Article 26

(Art. 26). In these circumstances the Commission finds that the issue

under Article 26 (Art. 26) should be joined to the merits.

For these reasons, the Commission

DECLARES ADMISSIBLE THE APPLICATION AND JOINS TO THE MERITS THE

QUESTION OF THE SIX MONTHS' RULE UNDER ARTICLE 26 (Art. 26) OF THE

CONVENTION