Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15533/89

by Annika ENGLUND and Others

against Sweden

The European Commission of Human Rights sitting in private

on 8 April 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs. G.H. THUNE

Mr. C.L. ROZAKIS

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

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 July 1989

by Annika ENGLUND and others against Sweden and registered on 20

September 1989 under file No. 15533/89;

Having regard to :

- reports provided for in Rule 47 of the Rules of

Procedure of the Commission;

- the observations submitted by the respondent Government

on 1 April 1993 and the observations in reply submitted

by the applicants on 28 June 1993;

- the parties' oral submissions at the hearing on 8 April

1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Ms. Annika Englund, a hairdresser, born

in 1967 and residing at Tingstäde, Ms. Åsa Englund, a veterinary

assistant, born in 1964 and residing at Umeå, Ms. Nina Gynning,

born in 1971 and residing at Lärbro, Ms. Karin Mårs, a tailor,

born in 1966 and residing at Slite. They are all Swedish

citizens. Before the Commission they are represented by Mr.

Göran Ravnsborg, Assistant Professor of Law at the University of

Lund.

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

summarised as follows.

Particular circumstances of the case

As from the summer of 1987 up to and including the summer

of 1990 the applicants were unorganised employees at an

establishment comprising the summer restaurant "Ihrebaden" at

Ihreviken, Tingstäde, and the youth hostel "Lummelunda" at

Nyhamn, Visby, both on the island of Gotland. The establishment

was owned by an unorganised employer (the applicant in

Application No. 15573/89) and had less than ten employees all of

whom were employed in the restaurant. The employees were hired

on a seasonal basis, but they had the option of being re-

employed.

The applicants' employer was not a member of any association

of restaurant employers and was therefore not bound by any

collective labour agreement (kollektivavtal) which such an

association had signed with the Hotel and Restaurant Workers'

Union (Hotell- och Restaurang-anställdas Förbund; hereinafter

"HRF"). He also refused to sign a separate, so-called substitute

agreement (hängavtal) with HRF. He referred to his objections

against the system of collective bargaining and 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 any agreement on their behalf.

The substitute agreement which had been proposed to the

applicants' employer was worded as follows:

(translation)

"Parties: [The applicants' employer] 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 applicants' employer 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 rules in 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].

..."

On 16 July 1987 the applicants' employer met a

representative of HRF. Following the negotiations HRF proposed

the following agreement which was, however, not signed by the

applicants' employer:

(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 the Association of

Hotel and Restaurant Employers and Others (Hotell- och

Restaurangarbetsgivare-föreningen m.fl.; hereinafter

"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..."

Following the applicant's employer'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).

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 delivery of

groceries to the restaurant and the collection of refuse from it

were stopped.

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.

In August 1988 the applicants, invoking the Convention,

requested that the Government prohibit HRF from continuing the

blockade and the other unions from continuing their sympathy

measures. They further requested that the Government order the

unions to pay damages, alternatively that damages be paid by the

State.

In its decision of 12 January 1989 the Government (Ministry

of Justice) stated the following:

(translation)

"The requests for a prohibition against the blockade

and the sympathy measures as well as damage liability

for the trade unions, concern a legal dispute between

private subjects. According to Chapter 11, Article 3

of the Instrument of Government, 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."

The applicants 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

förvaltnings-beslut, hereinafter "the 1988 Act").

On 29 June 1989 the Supreme Administrative Court (Regerings-

rätten) dismissed the request, finding that the Government's

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

administrative matter involving the exercise of public power.

In 1989 HRF demanded that the Swedish Touring Club (Svenska

turistföreningen) discontinue its cooperation with the youth

hostel owned by the applicants' employer due to his refusal to

comply with the relevant collective agreement. HRF apparently

threatened to institute industrial actions against all other

youth hostels employing members of HRF unless the applicants'

employer was excluded from the Touring Club.

Subsequently the applicants' employer was excluded from the

Touring Club. This entailed, inter alia, that his youth hostel

was no longer mentioned in the Club's catalogue of youth hostels

in Sweden. The applicants' employer unsuccessfully contested his

exclusion in civil proceedings.

In the beginning of 1991 the applicants' employer sold the

restaurant due to his difficulties in running the business

despite the industrial actions.

On 9 November 1991 the applicants requested the Government

to support their application before the Commission.

On 12 December 1991 the Government decided not to take any

measures in respect of the request.

Relevant domestic law

a. Freedom of association and right of association

aa. Constitutional protection

According to Chapter 2, Section 1, para. 5 of the Instrument

of Government (Regeringsformen), the freedom of association

(föreningsfrihet) of every citizen is protected from infringement

by "the State or public authorities" (det allmänna). This

freedom entails the right to unite with others for public or

private purposes, but may be restricted in accordance with

Chapter 2, Section 12, subsection 1 and Chapter 2, Section 14,

subsection 2.

Under Chapter 2, Section 2 every citizen is protected from

any compulsion on the part of the State or public authorities to

belong to a political association, a religious community or any

other association for political, religious, cultural or other

opinions. No restrictions shall be placed on this right.

According to Chapter 2, Section 17 industrial actions may

be taken by a union of employees, an employer or an association

of employers, if the legislation or an agreement does not provide

otherwise.

Chapter 11, Section 3 provides that legal disputes between

private subjects shall only be settled by a court of law, unless

otherwise provided by law. There is no legal basis authorising

the Government to settle such a dispute.

bb. Other provisions

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

1976:580 om medbestämmande i arbetslivet; hereinafter "the 1976

Act") defines the right of association (föreningsrätt) as 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.

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 (Section 8, subsection 1).

Section 8 further stipulates that 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, the provisions

in Section 8 shall apply for the central organisation (Section

8, subsection 2).

If the right of association is violated by the termination

of an agreement or by a provision in a collective agreement or

other contract, that act or provision shall be void (Section 8,

subsection 3).

It is the duty of an organisation of employers or an

organisation of employees to seek to prevent a member taking any

action which violates the freedom of association. Where a member

has taken such action, the organisation shall try to persuade him

to cease the action (Section 9).

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 (Section 10, subsection 1).

An organisation of employees shall also enjoy the right to

negotiate in relation to any organisation to which an employer

belongs. The same right shall be enjoyed by the employer's

organisation in relation to the organisation of employees

(Section 10, subsection 2).

An employer, an employee or a union infringing the 1976 Act

or a collective labour contract is liable to compensate the

damage hereby caused (Section 54).

The right of negotiation applies regardless of whether there

is a collective agreement in force between the parties. However,

the 1976 Act prohibits parties at the labour market who are bound

by a collective agreement from instituting industrial actions

while that agreement is in force (Section 41).

Employers who do not have any employees affiliated with a

trade union are not obliged to negotiate with that union about

the conditions of work of their employees. However, Swedish law

does not prohibit a union from mounting pressure on an employer

by instituting industrial actions so as to make him sign or apply

a collective agreement.

b. Access to court

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.

c. Judicial review

According to the 1988 Act 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.

Judicial review may be granted only in respect of decisions

which involve the exercise of public power and which may

otherwise be brought before the courts only after application for

a reopening of proceedings (resning) and in regard to which no

other means of appeal would have been available.

d. Protection of the right of re-employment

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.

COMPLAINTS

1. The applicants complain that the lack of State protection

against the allegedly unjustified industrial actions instituted

against their employer's restaurant violated their negative

freedom of association. They allege that the aim of the actions

was to deprive them of any possibility of influencing the terms

of their contractual relationship with their employer. In any

case, as a result of the sale of their employer's restaurant they

eventually lost their seasonal employments. They invoke Article

11 in conjunction with Article 17 of the Convention.

2. The applicants further allege that they had no effective

possibility to challenge the industrial actions before Swedish

courts. They invoke Article 6 para. 1 and Article 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 July 1989 and registered

on 20 September 1989.

On 14 October 1992 the Commission (Second Chamber) decided

to bring the application to the notice of the respondent

Government and to invite them to submit written observations on

its admissibility and merits.

Following three extensions of the time-limit the

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

applicants' observations in reply were submitted on 28 June 1993.

On 11 January 1994 the plenary Commission ordered, pursuant

to Article 20 para. 4 of the Convention, the transfer of the

application from the Second Chamber to itself.

On 17 January 1994 the Commission decided to hold a hearing

on the admissibility and merits of the application.

At the hearing, which was held on 8 April 1994, the parties

were represented as follows:

The Government:

Mr. Carl Henrik EHRENKRONA Assistant Under-

Secretary for Legal

Affairs, Ministry for

Foreign Affairs, agent

Mrs. Catharina STAAF Legal Adviser, Ministry

of Justice

Mrs. Inga ÅKERLUND Legal Adviser, Ministry of

Labour

The applicants:

Mr. Göran RAVNSBORG Assistant Professor of Law at

the University of Lund,

counsel

The first applicant also attended the hearing.

On 8 April 1994 the first applicant was granted legal aid.

THE LAW

1. The applicants complain that the lack of State protection

against the industrial actions taken against their employer's

restaurant violated their negative freedom of association. They

invoke Article 11 of the Convention, read in conjunction with

Article 17 (Art. 11+17).

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

"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.

..."

Article 17 (Art. 17) reads:

"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."

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

Convention is inapplicable in the case. They underline that the

industrial actions were not aimed at compelling the applicants

to join the employees' union HRF. The actual effects of the

industrial actions against the applicants' employer were, thus,

not such as to constitute an interference with their rights under

Article 11 (Art. 11). The aim of the actions was to make the

employer apply the terms of a certain collective agreement in his

contractual relationship with the applicants. Had their employer

agreed to comply with that agreement, the only right of the

applicants to have been infringed would have been their right

freely to conclude an agreement with their employer which they

considered best served their interests. However, no such right

is guaranteed by Article 11 (Art. 11).

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

Government do not argue that the State was not responsible for

the lack of protection of the applicants' rights under that

provision, nor do they argue that this interference was justified

under para. 2

(Art. 11-2) of that provision.

The applicants contend that Article 11 (Art. 11) has been

violated. They consider that there has been an unjustified

interference with the very essence of their freedom of

association, namely their right to conclude employment contracts

on terms agreed upon by themselves and their employer. They do

not question HRF's right to defend its members, but underline

that they had all explicitly objected to being represented by

that union. Allegedly, HRF never consulted the applicants prior

to instituting its actions.

The applicants further submit that their position in

relation to HRF was even weaker than that of their employer,

given that he had the choice of refusing to be bound by the

collective agreement. Had he, however, not persisted in his

refusal, the applicants would also have been compelled to comply

with that agreement, although none of them was a member of HRF.

Already this threat against their negative freedom of association

struck at the very essence of that freedom. At any rate, the

applicants eventually lost a significant part of their livelihood

following the sale of the restaurant.

The applicants finally submit that the State cannot absolve

itself from responsibility by delegating measures related to

collective bargaining to private bodies. Reference is made to

Article 27 (Art. 27) of the Vienna Convention on the Law of

Treaties, according to which a party may not invoke the

provisions of its internal law as justification for its failure

to perform a treaty. Thus, having regard to the requirement in

Article 17 (Art. 17) of the Convention, the State had an

obligation to protect them from the industrial actions against

their employer's restaurant.

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

viewed as encompassing a negative freedom of association, bearing

in mind that the Convention must be interpreted in the light of

present-day conditions (Eur. Court H.R., Sigurjónsson judgment

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

Permitting every kind of compulsion in the field of trade union

membership would strike at the very substance of the freedom

Article 11 (Art. 11) is intended to guarantee (Eur. Court H.R.,

Young, James and Webster judgment of 13 August 1981, Series A no.

44, pp. 21-22, para. 52). For the rights under Article 11 (Art.

11) to be effective the State must protect the individual against

any abuse of a dominant position by trade unions (ibid., p. 23,

para. 55).

Assuming that Article 11 (Art. 11) is applicable in the

present case, the Commission observes that the industrial actions

against the applicants' employer resulted in the stopping of

deliveries to his restaurant and the collection of refuse from

it. However, as a result of their employer's refusal to be bound

by the relevant collective agreement, the industrial actions did

not have the effect of preventing the applicants from remaining

unorganised employees, nor did the actions affect the conditions

of their employment.

In these particular circumstances the Commission concludes

that there has been no failure on the part of the respondent

State to actively provide protection to the applicants against

interference with their negative freedom of association (cf. Eur.

Court H.R., Sibson judgment of 20 April 1993, Series A no. 258-A,

p. 14, para. 29).

It follows that this complaint must be rejected as being

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

(Art. 27-2) of the Convention.

2. The applicants further allege that they had no effective

possibility to challenge the industrial actions before Swedish

courts. They invoke Article 6 para. 1 (Art. 6-1) and Article 13

(Art. 13) of the Convention.

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 ..."

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."

The Government do not object to the complaint being declared

admissible. They consider that the industrial actions against the

applicants' employer interfered with the applicants' freedom to

conclude employment contracts and that there was a dispute

regarding the justification of those actions. The applicants had

certain court remedies at their disposal, since they could have

requested an injunction stopping the actions, or claimed damages

from the unions or the State. All these remedies would have

enabled the courts to examine the merits of the matter. There

would, however, have been no legal basis for a ruling in the

applicants' favour, given that such court actions would have had

to be based on the argument that the industrial actions were

unlawful or in violation of an existing collective agreement

between the applicants and their employer. In these

circumstances, the Government doubt whether such a court

examination would have been effective for the purposes of Article

6 (Art. 6).

(a) Assuming that Article 6 para. 1 (Art. 6-1) of the Convention

is applicable, the Commission notes that it is not in dispute

that the applicants had access to a court in order to challenge

the industrial actions. Whether or not any of the actions

referred to by the Government would have been successful is not

decisive for the question whether Article 6 (Art. 6) has been

violated. The Commission therefore concludes that there has been

no violation of Article 6 (Art. 6).

It follows that this complaint must also be rejected as

being manifestly ill-founded within the meaning of Article 27

para. 2

(Art. 27-2) of the Convention.

(b) In so far as Article 13 (Art. 13) of the Convention has been

invoked, the Commission considers that the applicants have no

"arguable claim" of a breach of the Convention which would

warrant a remedy in accordance with Article 13 (Art. 13) (cf.

Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series

A no. 131, pp. 23-24, paras. 52-54).

It follows that this complaint must also be rejected as

being manifestly ill-founded within the meaning of Article 27

para. 2

(Art. 27-2) of the Convention.

3. The Commission finally considers that no separate issue

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the

Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ENGLUND AND OTHERS v. SWEDEN

ENGLUND AND OTHERS v. SWEDEN

LEXI