Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20005/92

by PROSA, Kirsten SJØGREN,

Nils AUGSBURG and Morten LIEDECKE

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 27 June 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 September 1991

by PROSA, Kirsten SJØGREN, Nils AUGSBURG and Morten LIEDECKE against

Denmark and registered on 18 May 1992 under file No. 20005/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 2 December 1994 and the observations in reply submitted

by the applicants on 27 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The first applicant (hereinafter called Prosa) is a trade union

domiciled in Copenhagen. Prosa is inter alia divided into a number of

branches which represent their members vis-à-vis the different

employers. In the following the term "Prosa" will cover the entire

trade union. The three other applicants are members of Prosa and reside

at Brønshøj, Copenhagen, and Vejle, respectively. They are computer

programmers by profession. Before the Commission all four applicants

are represented by Mr. Christian Harlang, a lawyer practising in

Copenhagen.

A. The particular circumstances of the case

On 10 November 1988 the employer Sparekassernes Datacenter

(hereinafter called SDC) and Prosa entered into a so-called general

framework agreement (Hovedaftale) which gave Prosa the exclusive right

to negotiate on behalf of its members salaries and other work

conditions with SDC. According to its section 2 SDC was obliged in its

letters of employment to refer to the fact that any employment should

be in accordance with the terms which followed from the agreements

between SDC and Prosa. According to section 10 the general framework

agreement could be terminated with six months notice, although at the

earliest as from 1 October 1991.

On 30 May 1989 SDC and Prosa signed an agreement (overenskomst)

concerning salaries and other work conditions. According to its

section 22 the agreement entered into force on 1 April 1989 and could

be terminated with three months notice, although at the earliest as

from 31 March 1991. This agreement applied to the second and third

applicants who at that moment in time were employed by SDC.

On 1 April 1990 three Danish banks merged thereby forming a new

bank, the Unibank A/S. A new data centre, called Unidata, was also

created for the purpose of handling all computer linked activities of

the Unibank A/S. In this connection 100-150 employees of SDC were, on

17 January 1990, offered employment in Unidata. By letter of

1 March 1990 the employees interested were informed that their existing

terms of employment would continue and that no changes would occur to

the agreements in force at the time.

As a result of this, 102 employees of SDC, including the second

and third applicants, took up employment at Unidata as from

1 April 1990. The fourth applicant was employed by Unidata from a job

in one of the banks which had merged. In their letters of employment

it was pointed out that they were employed on the same conditions as

those applicable to their previous jobs.

Subsequently, on 29 August 1990 Unidata informed the members of

Prosa who previously had been employed in SDC as follows:

(Translation)

"As mentioned in your letter of employment your present

conditions of employment are valid until and including

31 March 1991.

As part of a co-ordination of salary and work conditions in

the Uni Danmark Group your salary and employment conditions

will as from 1 April 1991 follow the agreements made

between ... the Financial Sector's Employers' Association

(Finanssektorens Arbejdsgiverforening, hereinafter called

FA) and the National Association of Bank Employees (Danske

Bankfunktionærers Landsforening, hereinafter called DBL).

..."

In the meantime a dispute had commenced between Prosa and Unidata

as to whether the latter was bound by the general framework agreement

and the collective agreement of 1988 and 1989 between Prosa and SDC in

respect of those members of Prosa who had now transferred to Unidata.

As no agreement could be reached Prosa instituted proceedings in the

Labour Court (Arbejdsretten) in September 1990 against FA and

Unidata/Unibank A/S. The case was registered as case No. 90.328.

On 30 October 1990 the Joint Council of Public Servants and

Salaried Employees (Fællesrådet for Tjenestemænd og Funktionærer,

hereinafter called FTF) requested permission to intervene in the

proceedings on behalf of DBL in support of FA and Unidata. This request

was made in particular due to the fact that FA had entered into a

collective agreement with DBL covering the employment area concerned

and that the outcome of the case would therefore be of importance to

this collective agreement.

By letter of 8 November 1990 Prosa opposed the request and

referred to section 19 of the Labour Court Act (arbejdsretsloven) and

section 252 of the Administration of Justice Act (retsplejeloven). It

considered that FTF had no legal interest (retlig interesse) in the

case.

Following further written observations in which the parties

maintained their above views the Labour Court held a meeting with the

parties after which the Court stated as follows:

(Translation)

"The parties agree to leave it to the presiding judge to

decide whether the request submitted by FTF to intervene in

the proceedings shall be granted. The presiding judge

decided that the above request to intervene in the

proceedings shall be granted."

During the meeting the case was furthermore scheduled for hearing

on 29 and 30 January 1991.

The case was heard by the Labour Court on 30 January 1991. Prosa

was represented by the applicants' present representative and four of

its members, including the second and third applicants.

The Court was composed of nine members, i.e. the President (P)

and two vice-presidents who were all Supreme Court judges, and six lay

judges one of whom had been appointed to the Labour Court's pool of lay

judges by the Ministry of Finance and two by the Danish Employers'

Confederation. Of the remaining three lay judges one had been appointed

to the pool of judges by the Federation of Danish Trade Unions and the

other two (MS and S) by a group of associations consisting of FTF, the

Central Organisation of Academic Staff and the Joint Central

Organisation of Supervisors' and Technical Officers' Societies. The

question of the impartiality of the Labour Court as composed was not

discussed before or during the hearing.

As regards the material question of law Prosa pointed out that

as per 1 April 1990 Unidata had employed 22 Prosa members who

previously had been employed by SDC. As they continued to carry out

identical work in Unidata the parties had agreed that SDC had been

partly incorporated into Unidata. Accordingly, pursuant to the

applicable legislation it followed that Unidata was bound by the

general framework agreement of 10 November 1988 and the agreement of

30 May 1989 between Prosa and SDC. Prosa furthermore maintained that

this also applied to members of Prosa who, prior to 1 April 1990, had

been employed from the banks which had merged or had been employed from

elsewhere.

FA, Unidata and FTF did not dispute that SDC had been partly

incorporated into Unidata and that therefore the employment of the 22

Prosa members as per 1 April 1990 should be considered under the

legislation covering business mergers. However, this could only mean

that they were guaranteed identical employment conditions until the

previous agreement would expire which, in their opinion, was on

31 March 1991. Furthermore, FA, Unidata and FTF maintained that there

was no basis upon which it could be concluded that Prosa members coming

from the merging banks or other employment could be covered by the

agreements in question. Finally, Unidata maintained that it had not in

any way accepted to be bound by the agreements between SDC and Prosa.

Following the parties' oral submissions the case was accepted for

adjudication. A copy of the court transcript concerning the hearing on

30 January 1991, including the names of everybody present, was sent to

the parties soon after the hearing.

In its judgment of 21 March 1991 the Labour Court found against

Prosa while sustaining the claim of FA, Unidata and FTF. The Court

stated that only those members of Prosa who had previously been

employed by SDC and who had now been employed by Unidata in connection

with the bank merger of 1 April 1990 could rely on the previous

collective agreement between Prosa and SDC and only until the expiry

of this agreement on 31 March 1991. The merger, however, did not mean

that Unidata was otherwise bound by the previous agreements.

No appeal lies against a judgment of the Labour Court.

On 28 May 1991 Prosa requested that the case be re-opened, the

reason being that the presiding judge and two of the lay judges were

considered to have been disqualified in a manner which in the request

was described as follows:

(Translation)

"... In connection with the preparations of (another Labour

Court) case No. 91.109 professor K represented Prosa on

27 March (1991). The Court sat with Supreme Court judge

(P). The court transcript reads inter alia as follows:

'The presiding judge noted that in an article in (the

newspaper) Politiken of 6 February 1986 professor K had

expressed the view in connection with the mentioning of an

arbitration case in which he had represented Prosa, that

the presiding judge is a 'willing employers' tool'. As it

may be expected that the professor maintains his view and

that it is shared by the party which the professor

represents, the presiding judge decides as follows pursuant

to section 62 subsection 1 second sentence of the

Administration of Justice Act:

DECISION

As there is in the circumstances reason to fear that the

plaintiffs, represented by professor dr. jur. K, cannot

consider the presiding judge as being entirely impartial it

is decided: the presiding judge vacates his seat on the

bench.'

...

Prosa considered - and considers - that the decision taken

by (P) in (the 1986 arbitration case) is wrong but Prosa

obviously does not consider a wrong decision of that kind

as a reason for being disqualified as far as future cases

are concerned. The fact that Prosa and Prosa's

representative publicly criticise (the 1986 decision)

obviously does not concern a matter which could reasonably

put (P's) impartiality in question.

In (Prosa's) opinion it is unacceptable that the presiding

judge's perception of being partial should refer back to

Prosa's criticism of (the 1986 decision), the more so since

Prosa, neither before the presiding judge's decision of

27 March (1991) nor on other occasions, has challenged the

impartiality of judge P. ...

...

Since the above-mentioned decision of 27 March (1991) is

based on the assumption that the lack of confidence 'is

shared by the party which the professor represents' Prosa

considers that the disqualification which the presiding

judge finds on 27 March also - although not admitted - must

have been present six days earlier when judgment was

pronounced in case No. 90.328 (the present case). We are

unable to explain why the presiding judge considers himself

to be disqualified in the one case but not in the other

although he maintains in his decision that the lack of

confidence 'is shared by' Prosa. But we consider it to be

a serious legal flaw in the judgment pronounced that

Supreme Court judge P in the circumstances did not vacate

his seat from the bench in case No. 90.328 but remained

there, even as the presiding judge.

...

This legal flaw is of particular importance having regard

to the fact that the Labour Court's judgment of

21 March 1991 has been pronounced with the participation of

two lay judges who are both affiliated to FTF-

organisations, i.e. judges MS and S.

Having regard to the fact that an important part of the

case concerns a dispute between two employee organisations,

i.e. Prosa ... and one of FTF's organisations, DBL ...,

Prosa has decided, after careful consideration, to

challenge the validity of the judgment pronounced. ...

...

As a reason for the present request we refer separately to

the assumption that such a request is a precondition for an

examination on the merits pursuant to the rules of the

European Convention on Human Rights ... ."

Following further observations from the parties the Labour Court

rejected the request for the re-opening of the proceedings on

27 November 1991 stating inter alia as follows:

(Translation)

"The lay judge S who participated in the case is not, and

has not been, affiliated to an FTF organisation, but is a

member of the Chief Engineers' Association which is

affiliated to the Joint Central Organisation of

Supervisors' and Technical Officers' Societies. Already for

this reason the objection to the impartiality of this judge

must be rejected.

...

In the newspaper article which is referred to in the

decision of 27 March 1991 in case No. 91.109 professor K

has submitted that he considers the presiding judge to be

partial and to favour in a prejudiced manner employer

interests.

When submitted by a professor of law at the University of

Copenhagen it cannot be excluded that such a statement has

been considered to be of some importance at least by the

party the professor represented in the arbitration case.

Against this background it was natural for the presiding

judge to vacate his seat on the bench in the Labour Court

case No. 91.109 - in which the party was once more

represented by professor K - without this being a sign that

the presiding judge was, or considered himself to be,

disqualified. Accordingly, there was no reason for the

presiding judge to vacate his seat when examining case

No. 90.328 (the present case) in which the party was

represented by a lawyer who only subsequently has submitted

that he shares the professor's view.

In these circumstances, and since the objection to the lay

judge MS was not submitted until approximately four months

after the hearing of the case, the objections of lack of

impartiality now submitted by the complainant cannot

constitute a reason for a re-opening of the case,

cf. section 19 of the Labour Court Act and section 399 of

the Administration of Justice Act."

A second request by Prosa for a re-opening of the case was

rejected by the Labour Court on 3 January 1992.

B. Domestic law and practice

a. The Danish labour market model

The Danish labour market is to a high extent governed by

collective agreements concluded between the labour market parties.

About 80 per cent of all employees are organised and nearly 90 per cent

of all employees are covered by collective agreements.

In the so-called September Compromise of 1899 between the labour

market parties the collective bargaining system was to a certain extent

put into a legal framework through the establishment of the Permanent

Arbitration Court. However, there were still unclear points about the

legal nature of "the collective agreement". Doubt continued to exist

as to how breaches of collective agreements should and could be

sanctioned. Claims for damages could only be brought before the

ordinary courts of law and the same applied to questions concerning the

interpretation of a collective agreement.

In 1908, a committee was set up to submit proposals for a model

to solve these problems.

In a report of 17 August 1908 the committee proposed three

measures which were later introduced:

1. A proposal for "Standard Rules for Handling Labour Disputes". The

aim of these standard rules was that all disputes should be made the

subject of negotiations and that disputes concerning the interpretation

of collective agreements should, if necessary, be settled by an

arbitration court. By virtue of section 22 of the Labour Court Act

these standard rules now form part of all collective agreements, unless

the parties themselves have agreed on other appropriate rules to settle

labour disputes.

2. A proposal for a proper labour court instead of the Permanent

Arbitration Court. This court was to deal with cases concerning alleged

breaches of collective agreements. This proposal was adopted in the

form of the Act on the new Permanent Arbitration Court which in 1973

was replaced by the Labour Court Act No. 317 of 13 June 1973.

3. A proposal for an act on conciliation in labour disputes. This

Act regulates the Danish system with publicly appointed conciliators

who, if necessary, assist the parties in connection with the conclusion

and renewal of collective agreements.

As a corollary of this historical development and as a

consequence of the high rate of organisation, pay and working

conditions in Denmark are mainly regulated by collective agreements

between labour market partners.

Pay and working conditions may further be agreed individually

between the individual employee and the employer.

There is an interaction among the three elements - collective

agreements, individual agreements and legislation - when it comes to

identifying the rights of an employee in relation to the employer.

A collective agreement has effect within the occupational field

covered by the agreement. An employer who has concluded or adhered to

a collective agreement has a duty in relation to the trade union to pay

the employees the wage or salary fixed in the collective agreement

whether the employee is or is not a member of the organisation

concerned. However, a non-organised employee may not invoke rights

under the collective agreement, but only under his or her individual

agreement. On the other hand employees have no independent and direct

rights which can be invoked under the collective agreement. Through the

membership of a trade union, the union is considered empowered to act

on behalf of its members.

The Danish trade union movement is organised as a network of

trade unions, federations and central organisations.

The basic element in this structure is the trade union (branch

of the federation) which is a local association of workers within the

same occupational field. The trade unions may have local branches in

the individual enterprises in the form of the so-called trade union

clubs.

These local associations - which typically have their own economy

- have joined together in national unions. They have wide powers in

connection with the conclusion of collective agreements. Traditionally,

the unions have been organised on the basis of professional skills -

craft unions. However, in recent years this traditional structure has

been disintegrating and several unions now form cartels within the

various trades and they have taken over some of the powers of the

unions, for instance negotiating rights.

The unions are again members of the central organisations which

are the biggest organisations of employees. The biggest central

organisation in Denmark is the Federation of Danish Trade Unions (LO).

b. The jurisdiction and functioning of the Labour Court

As early as in 1910 when the Permanent Arbitration Court was set

up, it was recognised that it was necessary to have a judicial

authority - a court - to deal with breaches of collective agreements.

However, the Labour Court does not have jurisdiction as regards

all matters concerning collective agreements. In Danish labour law a

distinction is made between disputes of right and conflicts of

interest. A dispute of right is a dispute concerning an existing

agreement. It may be a matter of interpretation of the agreement or a

dispute in which one of the parties commits a breach of the agreement.

A conflict of interest arises where there is no agreement between the

parties and where the dispute concerns the conclusion/renewal of such

an agreement.

Under Danish labour law conflicts of interest may lawfully be

supported by industrial action taken by the parties involved. In

connection with such disputes the parties are fighting an economic

struggle using the weapons of for instance strike and lockout.

When it comes to the solution of a dispute concerning an existing

agreement (a dispute of right) the parties are not allowed to resort

to industrial action in order to enforce their opinion. The parties may

only resort to legal remedies in connection with the solution of such

disputes.

In cases concerning the interpretation of an agreement the case

is settled through a special negotiating procedure which may be decided

by arbitration. The negotiating procedure is described in detail in the

Standard Rules for Handling Labour Disputes.

In the case of an alleged breach of a collective agreement the

alleged violation of the contractual rights must be determined and,

where necessary, steps must be taken to bring the violation to an end

and to impose a sanction.

The Labour Court has been given jurisdiction to hear such cases,

cf. section 9, subsection 1, of the Labour Court Act. The Labour Court

is further empowered to adjudicate cases concerning breach or

interpretation of the basic agreements, questions as to whether there

is or is not a valid agreement, and questions concerning the lawfulness

of industrial action of which notice has been given. The Labour Court

may sanction a breach of a collective agreement by imposing a penalty,

cf. section 12, subsection 1, of the Labour Court Act. A penalty

includes both an element of compensation and a penal element. The

penalty is imposed on the party who has committed the breach of the

agreement, i.e. typically the individual employer/employees/group of

employees. The organisations may also be held liable to pay a penalty.

The main condition for liability to pay a penalty is that there

has been a breach of the collective agreement. The agreement can only

be breached by somebody who is bound by it. Thus, liability may only

be imposed on those who are the actual parties to the agreement and

members of organisations which are parties to the agreement.

The Labour Court is established by statute. As regards the

procedure before the Labour Court the rules on civil procedure laid

down in title 2 of the Administration of Justice Act and in chapter 23

and chapters 28-30 of the Act apply mutatis mutandis, cf. section 19

of the Labour Court Act.

A case is brought before the Labour Court by submitting a written

complaint in two copies and the other party shall without further

request draw up a defence. This normally concludes the pleadings, but

the President of the Court may at his or her own initiative, or after

having consulted the parties, provide for further pleadings to be

exchanged.

According to the established practice of the Labour Court a

preliminary court meeting is then held at which the Court is composed

of the member of the presidency on service and the secretary of the

Court functioning as clerk of the Court. The aim of this Court meeting

is to establish the facts of the case without actually hearing

witnesses or experts and the president of the Court tries to settle the

case. There may be several preliminary court meetings.

During the main hearing the Court is presided over by the member

of the presidency who participated in the preliminary court meeting(s).

The Court is formed by a panel of one member of the presidency and

three ordinary judges or deputies representing the employer side and

the employee side, respectively. The presidency may be extended to

three members.

A case before the Labour Court shall be brought by and against

the appropriate employer or employee organisation, cf. section 14 of

the Labour Court Act. If an organisation is a member of a bigger

organisation the case must be brought by and against the biggest

organisation. However, a case may be brought against an individual

employer who is a party to a collective agreement if the individual

employer is not a member of an employer organisation.

The Labour Court consists of twelve ordinary judges and twenty-

eight deputy judges, one president, three vice-presidents and two

deputy presidents. Furthermore, there is a secretary to the Court. The

judges are partly professional, legally qualified, judges and partly

judges appointed by the labour market organisations. The members of the

presidency of the Court shall according to section 7 of the Labour

Court Act satisfy the general conditions for being appointed to the

office of a judge. At present the entire presidency, including the

deputies, are judges of the Supreme Court (Højesteret).

The ordinary judges of the Labour Court are appointed to the post

of judge by the labour market organisations. Under section 2 of the

Labour Court Act the ordinary judges are appointed as follows:

By the employers' organisations:

The Danish Employers' Confederation

SALA (the Associations of Employers in

Agriculture) and the Association of

Employers in the Finance Sector

The Ministry of Finance

The Association of Municipal Authorities

The Association of County Authorities,

and The Association of

the municipalities of

Copenhagen and

Frederiksberg

By the employees'

organisations:

The Federation of Danish

Trade Unions

The Joint Council of Public Servants and

Salaried Employees (FTF)

The Central Organisation of Academic

Staff (AC) and FR - the Joint Central

Organisation of Supervisors' and

Technical Officers' Societies

three ordinary judges

and six deputies

one ordinary judge and

four deputies

two ordinary judges and

four deputies

four ordinary judges and

seven deputies

two ordinary judges and

seven deputies

The judges are elected for a period of three years.

As mentioned above members of the presidency of the Labour Court

must satisfy the same requirements as to their legal qualifications as

those applying to ordinary judges under the provisions laid down in the

Administration of Justice Act. As regards the judges appointed by the

organisations it follows from the nature of the case that the

qualification requirements are different. The qualification

requirements applying to ordinary judges (and deputy judges) follow

from the rules laid down by agreement of 15 March 1948 between the

Danish Employers' Confederation and the Federation of Danish Trade

Unions.

c. Individual right of action

As regards cases settled within the machinery set up for

settlement of labour disputes, i.e. by arbitration or by the Labour

Court, the right to take legal action is vested in the organisation

which is a party to the agreement. It is also the organisation which

decides about the subject-matter of the case. Before the ordinary

courts of law it is the individual employee who has a right to sue.

As regards rights based on legislation the rule is that such

rights may always be enforced by the ordinary courts of law. The courts

will hear the case whether or not the employee is a member of a trade

union or other organisation. In such cases it is always the individual

employee who is entitled to bring the action and who may dispose of the

subject-matter of the case.

If the rights of the employee are based on a collective

agreement, the legal situation may be summarised as follows:

If the employee is not organised and thus not attached to any

organisation, but his or her rights are, nevertheless, based on a

collective agreement, the practice is that the ordinary courts of law

will hear the case. Reference is made to U85/800 V and U 1983/730H.

If the employee is organised, the starting point is that the

matter should be settled by the special machinery for settlement of

labour disputes, i.e. by arbitration or by the Labour Court. In such

cases the general rule is that the organisations have the full disposal

of the subject-matter and the right to take legal action. An exception

from this general rule follows from section 11, subsection 2, of the

Labour Court Act which reads as follows:

(Translation)

"An employee shall, however, be entitled to bring an action

for award of outstanding wages in the ordinary courts of

law unless the organisation, in proceedings before the

Labour Court, has waived this right on behalf of the

employee or when the failure to pay wages is related to a

labour market dispute."

The ordinary courts of law have, inter alia on the basis of this

provision, heard cases involving collective agreements, even if the

organisation has failed to proceed with the case within the framework

of the machinery set up for the settlement of labour disputes, cf.

U85/997Ø, U54/935H and most recently in U94/953H in which express

reference was made to the right of access to court under Article 6 of

the Convention.

Any decision (judgment) of the Labour Court is final. The Labour

Court is the first and only level of jurisdiction, since no appeal lies

against its decisions. Consequently, the judgments of the Labour Court

are directly enforceable in accordance with the rules of the

Administration of Justice Act relating to enforcement of judicial

awards, cf. Section 20 of the Act. This means that a judgment from the

Labour Court serves as the necessary and sufficient basis for court

orders issued by the ordinary courts when enforcing court decisions.

Thus, the legal effect of the judgments of the Labour Court is

identical to that of judgments from other courts.

COMPLAINTS

The applicants have submitted five complaints under Article 6 of

the Convention which they have summarised as follows:

"Article 6, para. 1, is violated as a result of Act no. 317

of 13 June 1973 because the provisions in the Act on the

composition of the Labour Court, by granting a legal

monopoly to certain designated organisations, eo ipso

constitute a denial of the right to a fair trial in public

before an independent and impartial tribunal; and

furthermore

in Article 6 it is stated that the court in question must

be established by law. It is submitted that Section 19 of

the Labour Court Act is not in conformity with the

requirements established by law (especially the

foreseeability requirements) in as much as it leaves it to

the discretion of the Labour Court to decide what parts of

the Administration of Justice Act apply to the proceedings

of the Labour Court;

Article 6, para. 1 guarantees access to court review of an

individual's civil rights and obligations. According to

Danish domestic law no such possibility exists. An

individual worker has no locus standi with the Labour Court

or any other court in the Danish legal system as concerns

questions of the impact of collective agreements or

individual labour contracts. Thus it is submitted that

Article 6, para. 1, is violated in the present case;

Article 6, para. 1, is violated in the instant case because

(the applicants) did not benefit from a public hearing as

a consequence of the non-disclosure of the identity of the

judges until after the hearing;

Article 6, para. 1, is violated in the instant case because

(the applicants) did not benefit from a fair trial before

an independent and impartial tribunal, in as much as the

composition of the Court on 30 January 1991 neither secured

personal impartiality nor created the appearance of

impartiality and independence."

On 22 November 1991 and 10 February 1992 the applicants submitted

four complaints under Articles 11, 13 and 14 of the Convention and

Article 1 of Protocol No. 1 which they have summarised as follows:

"Article 11 is violated as a result of Act no. 317 of

13 June 1973 because the right to represent members of

certain trade unions de jure or de facto is curtailed;

Article 13 of the Convention guarantees to everyone an

effective remedy to rectify and compensate violations of

the rights and freedoms guaranteed in the Convention. As

individual workers have no locus standi before Danish

courts and because no other effective remedy is available,

it is submitted that Article 13 of the Convention is

violated in the present case;

Article 14 in conjunction with Article 11 is violated as a

result of Act no. 317 of 13 June 1973 because the Act de

jure or de facto condones discrimination between trade

unions of different political opinions; and lastly that

Article 1 of the First Protocol to the Convention is

violated as a result of the Labour Court's condoning of a

procedure whereby Prosa workers were deprived of their

right to peaceful enjoyment of their possessions in as much

as they had to accept a significant decline in their salary

or other changes in their terms of employment."

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 September 1991 and

registered on 18 May 1992. On 2 September 1994 the Commission (Second

Chamber) decided that notice of the application should be given to the

respondent Government and invited them to submit written observations

on the admissibility and merits thereof.

Following one extension of the time-limit fixed for this purpose

the Government submitted their observations on 2 December 1994.

Following one extension of the time-limit the applicants

submitted their observations in reply to those of the Government on

27 February 1995.

THE LAW

1. The applicants have submitted a number of complaints which relate

to the Labour Court Act of 1973. They maintain first that Article 6

para. 1 (Art. 6-1) is violated as a result of the fact that the Labour

Court Act, by granting a legal monopoly to certain designated

organisations, constitutes a denial of the right to a fair trial by an

independent and impartial tribunal, the more so as certain provisions

of the Act are, allegedly, such that the Labour Court cannot be

considered as being "established by law".

In this respect the Commission recalls that in accordance with

Article 25 para. 1 (Art. 25-1) of the Convention it can receive an

application from a person, non-governmental organisation or group of

individuals only if such person, non-governmental organisation or group

of individuals can claim to be a victim of a violation by one of the

High Contracting Parties of the rights set forth in the Convention.

Moreover, the Commission is competent to examine the compatibility of

domestic legislation with the Convention only with respect to its

application in a concrete case, while it is not competent to examine

in abstracto its compatibility with the Convention (cf. for example No.

11045/84, Dec. 8.3.85, D.R. 42 p. 247).

Accordingly, the Commission will only examine the applicants'

complaints in so far as the legislation in question affects the

applicants themselves.

2. The applicants complain, under Article 6 (Art. 6) of the

Convention, that they did not have access to a court review of their

civil rights and obligations.

Article 6 para. 1 (Art. 6-1) of the Convention reads as far as

relevant as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law...".

The Commission recalls that the dispute was brought before the

Labour Court by Prosa, the first applicant, and concerned the question

whether or not Unidata was bound, in the particular circumstances, by

the collective agreements made between Prosa and SDC and, accordingly,

to what extent the individual members' terms of employment were covered

thereby. It is not in dispute between the parties that the issues which

the Labour Court was called upon to determine concerned a "civil right"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention

and it follows that "everyone" should have the right to have any such

claim brought before a court or tribunal (cf. Eur. Court H.R., Golder

judgment of 21 February 1975, Series A no. 18, para. 36, p. 18).

The applicants maintain, and this is disputed by the Government,

that the Labour Court is not a court established by law within the

meaning of Article 6 (Art. 6) of the Convention. In addition the

second, third and fourth applicants maintain that under Danish law the

individual employee has no locus standi with the Labour Court, or any

other court in the Danish legal system, in respect of the questions of

the impact of collective agreements or individual labour contracts.

In respect of the applicants' additional arguments the Government

maintain that it follows from established case-law that individual

employees always have the right to take legal action to defend their

rights. Such cases are dealt with either by the machinery set up for

settlement of labour disputes or by the ordinary courts of law. In the

present case the second, third and fourth applicants' rights were taken

care of by Prosa, to whom they had delegated the powers to bring cases

concerning rights in the employment relationship based on the

collective agreement before the Labour Court.

The Commission recalls that the Danish Labour Court has been set

up in accordance with the provisions of the Labour Court Act of 1973.

Irrespective of this Act's general reference as to the applicability

of the provisions of the Administration of Justice Act, the Commission

has no doubt that the Danish Labour Court is as such a "tribunal

established by law" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. It is clear, however, that the guarantees

of Article 6 (Art. 6) extend to both the organisation and composition

of the tribunal, and the conduct of the proceedings in the concrete

case. Whereas the latter points will be subject to a separate

evaluation by the Commission it finds that Prosa, the first applicant,

had access to a tribunal in respect of its dispute with Unidata.

As regards the second, third and fourth applicants the Commission

recalls that the right to access to a tribunal secured by Article 6

para. 1 (Art. 6-1) of the Convention may be subject to limitations in

the form of regulation by the State. The State enjoys a certain margin

of appreciation but in addition to pursuing a legitimate aim the

limitations applied shall not restrict or reduce the access left to the

individual in such a way that the very essence of the right is impaired

(cf. Eur. Court H.R., Tolstoy Miloslawsky v. the United Kingdom,

judgment of 13 July 1995, Series A no. 323, para. 59).

In the present case the Commission recalls that the second, third

and fourth applicants could not in their individual capacity institute

proceedings against their employer in the Labour Court. This was due

to the fact that their rights, which were in dispute, stemmed from a

collective agreement between their trade union (Prosa) and SDC. It is

not the Commission's task to substitute itself for the competent Danish

authority in determining the most appropriate policy of regulating

access to the Labour Court but in the circumstances of the present case

the system chosen did not mean that the "civil right" which directly

affected the individual applicants could not be brought before a

tribunal for determination. This was in fact done by their trade union

and it has not been submitted that the trade union failed to pursue

those interests which directly affected the applicants. The

"limitation" did not in the Commission's view in the present case

impair the very essence of the right of access to a tribunal, nor can

it be considered disproportionate, in particular having regard to the

fact that the individual employee, according to established Danish

case-law, may institute proceedings in the ordinary courts of law

should the trade union fail to pursue his or her interests in the

Labour Court.

In these circumstances the Commission finds that the application

does not disclose any appearance of a violation of the right to access

to a tribunal within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. As regards the actual proceedings in the Labour Court the

applicants maintain firstly that they did not benefit from a public

hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention

as a consequence of the non-disclosure of the identity of the judges

until after the hearing of the case.

The Commission recalls that the case was heard in the Labour

court on 30 January 1991 in the presence of the parties concerned. No

evidence has been submitted which would indicate that the proceedings

were not public or that the identity of the judges was secret or

confidential. It follows that this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. Finally, under Article 6 (Art. 6) of the Convention the

applicants complain that they did not have a fair hearing by an

independent and impartial tribunal inasmuch as the composition of the

Labour Court on 30 January 1991 neither secured personal impartiality

nor created the appearance of impartiality and independence. In support

of these allegations the applicants point out that according to the

Labour Court Act the ordinary judges and substitute judges are

appointed to the pool of judges by certain specified organisations to

which Prosa does not belong. Furthermore, in the concrete case two of

the three judges who were supposed to represent employee interests had

been appointed to the pool of judges by FTF which had intervened in the

case in support of the defendant employer.

The Government maintain firstly that the applicants did not

exhaust domestic remedies in respect of this part of the application.

In the alternative they maintain that the complaint is manifestly

ill-founded.

The applicants admit that they did not bring the issue to the

attention of the Labour Court during the proceedings in question. They

submit, however, that they trusted that the Labour Court itself would

secure that the issues of independence and impartiality would be

fulfilled and that, in any event, it would in all probability have been

futile to enter such a plea.

The Commission recalls that under the terms of Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law. This condition is not met by the

mere fact that an applicant has submitted his case to the various

competent courts. It is also necessary for the complaint brought before

the Commission to have been raised by the applicant, at least in

substance, during the proceedings in question. On this point the

Commission refers to its established case-law (cf. for example, No.

6861/75, Dec. 14.7.75, D.R. 3 p. 147,; Nos. 5573/72 and 5670/72, Dec.

16.7.76, D.R. 7 p. 8; No. 16810/90, Dec. 9.9.92, D.R. 73 p. 136 and No.

15669/89, Dec. 28.6.93, D.R. 75 p. 39).

It is true that only effective, adequate and accessible remedies

have to be exhausted. However, it appears from the domestic case-law

submitted that the problem of judges' independence or impartiality is

not dismissed as such but examined by the Labour Court when invoked by

a party and it cannot therefore be regarded as ineffective to raise

this issue before the Court during the proceedings in question. The

Commission also recalls that it has constantly held that the mere

existence of doubts as to the prospects of success does not absolve an

applicant from exhausting a given remedy (cf. Nos. 5577-5583/72, Dec.

15.12.75, D.R. 4 pp. 4, 72 with further references). The Commission

finally notes that the applicants subsequently tried, unsuccessfully,

to have the case re-opened referring to the complaint now brought

before the Commission. However, it finds that such an extraordinary

procedure did not absolve the applicants from raising the matter while

the case was pending.

The Commission accordingly finds that the remedy, i.e. bringing

the issue of independence and impartiality to the attention of the

Labour Court during the proceedings in question, cannot be said to have

been clearly without any prospects of success. Consequently, the

applicants cannot be considered to have exhausted the effective

remedies available to them under Danish law.

It follows that this part of the application must therefore be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

5. The applicants also complain of violations of Articles 11, 13 and

14 (Art. 11, 13, 14) of the Convention and Article 1 of Protocol No.

1 (P1-1) to the Convention.

In respect of these complaints the Commission recalls that

according to Rule 44 para. 4 of its Rules of Procedure the date of

introduction of an application shall in general be considered to be the

date of the first communication from the applicant. The Commission may

nevertheless for good cause decide that a different date be considered

to be the date of introduction.

In the applicants' first communication with the Commission of

20 September 1991 they merely stated that the proceedings before the

Labour Court, in their opinion, violated Article 6 para. 1

(Art. 6-1) of the Convention. This communication was clearly not

sufficient to constitute a full application in accordance with Rule 44

paras. 1 and 2 of the Commission's Rules of Procedure, in particular

as it contained no statement of the facts or arguments. Nevertheless,

the Commission considers that the telefax letter submitted on 20

September 1991 was sufficient to constitute the introduction of an

application since it set out, albeit summarily, the object of the

application (cf. No. 10293/83, Dec. 12.12.85, D.R. 45 p. 41).

Since the scope of the application in respect of the date of

introduction is circumscribed by the terms of the applicants' first

communication the Commission must next examine whether the further

details of the application should be considered as legal submissions

in respect of the applicants' main complaints to which the six months

rule set out in Article 26 (Art. 26) of the Convention would not be

opposable (cf. no. 12015/86, Dec. 6.7.88., D.R. 57 p. 108) or whether

they should be considered as separate complaints introduced at a later

stage (cf. No. 10857/84, Dec. 15.7.86. D.R. 48 p. 106).

In this respect the Commission notes the contents of the

applicants' second communication with the Commission of

22 November 1991 which contained further arguments as to the basis for

their complaints under Article 6 (Art. 6) of the Convention and, for

the first time, an allegation of a breach of Article 11 (Art. 11) of

the Convention. The Commission also notes the contents of their third

communication of 10 February 1992 which contained, for the first time,

an allegation of a breach of Articles 13 and 14 (Art. 13, 14) of the

Convention and Article 1 of Protocol No. 1 (P1-1) as described above.

The Commission considers that the complaints submitted under

Articles 11, 13 and 14 (Art. 11, 13, 14) of the Convention and Article

1 of Protocol No. 1 (P1-1) cannot be interpreted as merely some

particular aspects of the complaints based on Article 6 para. 1

(Art. 6-1) of the Convention. In these circumstances, for the purposes

of the six months rule, these complaints must be considered separately.

In the present case the judgment of the Labour Court was given

on 21 March 1991. Subsequently, the applicants submitted a petition to

the Court for the re-opening of the proceedings and this petition was

rejected by the Court on 27 November 1991 with reference to section 19

of the Labour Court Act and section 399 of the Administration of

Justice Act which contains provisions concerning the possibility, in

exceptional circumstances, to re-open a case already decided upon.

As indicated above the Commission considers that the applicants'

complaints under Article 11 (Art. 11) of the Convention were introduced

on 22 November 1991 and the complaints under Articles 13 and 14

(Art. 13, 14) of the Convention and Article 1 of Protocol No. 1

(P1-1) on 10 February 1992.

It follows that the Commission can only deal with these

complaints if the petition for the re-opening of the case can be

considered a remedy within the meaning of Article 26 (Art. 6) of the

Convention, in which case the six months period provided for in that

Article should be calculated from the date of the decision of the

Labour Court to reject it.

The Commission recalls that it has the competence in every case

to appreciate in the light of the particular facts whether a remedy

appears to offer the possibility of effective and sufficient redress

within the meaning of the generally recognised rules of international

law in regard to the exhaustion of domestic remedies and, if not, to

exclude it from consideration in applying the six months time-limit.

It refers, however, to its extensive jurisprudence according to

which an application for re-trial or similar extraordinary remedies

cannot, as a general rule, be taken into account in the application of

Article 26 (Art. 26) of the Convention (cf. No. 10326/83, Dec. 6.10.83,

D.R. 35 p. 218 with further references).

In the present case the Commission finds it justified to base its

decision on an interpretation of Article 26 (Art. 26) consistent with

its extensive jurisprudence regarding such applications for re-trial

and from which it follows that such remedies should not normally be

taken into consideration as a remedy under Article 26 (Art. 26) of the

Convention. The Commission has found no special circumstances in the

present case which would permit a different conclusion as to the

relevance of a request for the re-opening of the Labour Court

proceedings.

Consequently this remedy did not constitute a domestic remedy

under the generally recognised rules of international law and the

rejection of the applicants' request cannot be taken into consideration

in determining the final decision for the purpose of applying the six

months time-limit laid down in Article 26 (Art. 26). Accordingly, the

complaints submitted under Articles 11, 13 and 14 (Art. 11, 13, 14) of

the Convention and Article 1 of Protocol No. 1 (P1-1) submitted to the

Commission on 22 November 1991 and 10 February 1992 have been

introduced out of time. Furthermore, an examination of the case does

not disclose the existence of any other special circumstances which

might have interrupted or suspended the running of the six months

period.

It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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PROSA, SJØGREN, AUGSBURG AND LIEDECKE v. DENMARK

PROSA, SJØGREN, AUGSBURG AND LIEDECKE v. DENMARK

LEXI