Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15573/89

by Torgny GUSTAFSSON

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 Torgny GUSTAFSSON against Sweden and registered on 4 October

1989 under file No. 15573/89;

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 and 30 August 1993 and the

observations in reply submitted by the applicant on 28 June

1993;

- the parties' oral submissions at the hearing on

8 April 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a nurse, was born in 1947. He resides at

Tingstäde and is a Swedish citizen. Before the Commission he is

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 applicant owned the summer restaurant "Ihrebaden" at

Ihreviken, Tingstäde on the island of Gotland. He further owned

the youth hostel "Lummelunda" at Nyhamn, Visby, also on Gotland.

Only the restaurant had hired employees. These amounted to less

than ten. (Part of those employees have lodged Application No.

15533/89.) They were hired on a seasonal basis, but had the

option of being re-employed.

The applicant 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

applicant was worded as follows:

(translation)

"Parties: [The applicant] and [HRF]

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

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

unless notice is given two months prior to the expiry

of the [agreement].

...

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

between [the employers' association] and [HRF] shall

be applied between [the applicant and HRF]. Should

[the employers' association] and [HRF] subsequently

reach a new agreement or agree to amend or supplement

the [present] agreement, [the new agreement,

amendments or supplements] shall automatically apply

as from the day on which [it or they] [has or have]

been [agreed upon].

...

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

subscribe to and maintain [five different] insurances

in "Labour Market Insurances"

("Arbetsmarknadsförsäkring"),... as well as other

possible insurances which [the employers' association

and HRF] might later agree upon.

2. [The employer shall] issue employment

certificates on a special form... A copy shall be sent

to [HRF].

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

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

In case of re-employment the 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 applicant met a representative of HRF.

Following the negotiations HRF proposed the following agreement

which was, however, not signed by the applicant:

(translation)

"Subject: The signing of a collective agreement

regarding [the restaurant] Ihrebaden ... and the

Lummelunda youth hostel.

1. Having regard to the forthcoming end of the

[season of 1987] the parties agree on the following

procedure replacing the signing of a collective

agreement.

The enterprise agrees to comply, during this

season..., with the collective labour agreement ('the

green national agreement') between 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 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 deliveries to the

restaurant 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 applicant, invoking the Convention,

requested that the Government prohibit HRF from continuing the

blockade and the other trade unions from continuing their

sympathy measures. He further requested that the Government

order the unions to pay damages, alternatively that damages be

paid by the State.

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 applicant asked for judicial review of the decision in

accordance with the 1988 Act on Judicial Review of Certain

Administrative Decisions (lag 1988:205 om rättsprövning av vissa

förvaltningsbeslut, hereinafter "the 1988 Act").

On 29 June 1989 the Supreme Administrative Court

(Regeringsrätten) dismissed the request, finding that the

Government's dismissal and rejection of the claims was not a

decision in an administrative matter involving the exercise of

public power.

In 1989 HRF demanded that the Swedish Touring Club (Svenska

turistföreningen) discontinue its cooperation with the applicant

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 applicant was excluded from the Touring Club.

Subsequently the applicant 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 applicant unsuccessfully contested his exclusion in

civil proceedings.

In the beginning of 1991 the applicant sold the restaurant

due to his difficulties in running the business despite the

industrial actions.

On 9 November 1991 the applicant requested the Government

to support his 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 applicant complains that the lack of State protection

against the industrial actions taken against his establishment

violated his negative freedom of association. He submits that the

actions were unjustified, since all his employees were paid more

than they would have been entitled to under the relevant

collective agreement and since they themselves did not wish him

to be bound by such an agreement. The applicant invokes Article

11 of the Convention in conjunction with Article 17.

2. The applicant further complains that the lack of State

protection against the industrial actions also violated his right

to the peaceful enjoyment of his possessions. He alleges that the

industrial actions have caused him major economic damage and

forced him to sell his restaurant. He invokes Article 1 of

Protocol No. 1 in conjunction with Article 17 of the Convention.

3. The applicant further complains that the court remedies

which he could resort to in order to challenge the industrial

actions would have been ineffective, the industrial actions of

HRF being lawful under Swedish law. He invokes 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 4 October 1989.

On 14 October 1992 the Commission (Second Chamber) decided

to bring the application to the notice of the Government and to

request written observations on its admissibility and merits.

Following three extensions of their time-limit the

Government submitted their observations on 1 April and 30 August

1993. The applicant's observations in reply were submitted on 23

June 1993.

On 5 July 1993 the applicant was granted legal aid.

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 applicant:

Mr. Göran RAVNSBORG Assistant Professor of Law at

the University of Lund,

counsel

The applicant also attended the hearing.

THE LAW

1. The applicant complains that the lack of State protection

against the industrial actions taken against his establishment

violated his negative freedom of association. He invokes Article

11 of the Convention in conjunction with Article 17 (Art. 11+17).

Article 11 reads (Art. 11), 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. They underline that the applicant was

in no way compelled by the employees' union HRF to join the

employers' association HRAF, as he could have chosen to sign the

substitute agreement. Had he done so, HRF's interests would have

been met and no industrial actions would have been called for.

The Government admit, however, that signing the substitute

agreement instead of joining the employers' association would,

in any case, have bound the applicant to the collective agreement

between HRF and that association. In that case the effects of the

substitute agreement might have been less favourable to the

applicant than an actual membership of HRAF, given that he would

have had no influence over the contents of future collective

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

such agreements.

The Government further submit that the right of a union to

take industrial actions whenever the employer is not bound by a

collective agreement is protected by Swedish law regardless of

whether any action has been called for by any of his employees.

The unions' right to take industrial actions may further be

considered inherent in their right to freedom of association

under Article 11 (Art. 11). Also a number of other international

treaties to which Sweden is a party protect the right of trade

unions to promote their interests through industrial actions. The

Government further emphasise that in Sweden a great

responsibility is placed on unions to ensure that industrial

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

for unjustified purposes and that such actions are not contrary

to the general sense of justice.

The Government concede that the applicant's freedom to reach

employment contracts with his employees without having to comply

with the relevant collective agreement might have been infringed.

This freedom is, however, not guaranteed by the Convention.

Moreover, although the industrial actions must have seriously

affected the possibility for the applicant to run his business,

the State cannot be held responsible for acts of private subjects

in relation to other such subjects.

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

Government accept that the State was responsible for the lack of

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

Government do not argue that such an interference with the

applicant's rights was justified under para. 2 (Art. 11-2) of

that provision.

The applicant maintains that his right not to join the

employers' association HRAF, as recognised by the present case-

law of the Convention organs, must also be considered to entail

a right for him to negotiate with his employees without any

influence by a trade union. The applicant does not question HRF's

right to defend its members, but underlines that his employees

in no way suffered from their lack of affiliation with HRF or his

lack of affiliation with an employers' association. He recalls

that all employees, including the only employee who was a member

of HRF, objected to the industrial actions.

The applicant further submits that the choice proposed to

him in order to avoid membership in the employers' association

HRAF, namely the signing of a substitute agreement, was a

fictitious one, as both alternatives would have struck at the

very essence of his negative freedom of association. Moreover,

the State cannot absolve itself from its responsibility under

Article 11 (Art. 11) 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 him

from the industrial actions.

The Commission has proceeded to a preliminary examination

of this complaint in the light of the parties' submissions. It

considers that the complaint raises questions of fact and law

which are of such a complex nature that their determination

requires an examination of the merits. The complaint cannot

therefore be declared inadmissible as being manifestly ill-

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

the Convention. No other ground for declaring it inadmissible has

been established.

2. The applicant further complains that the lack of State

protection against the industrial actions also violated his right

to the peaceful enjoyment of his possessions. He invokes Article

1 of Protocol No. 1 to the Convention, read together with Article

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

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

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

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

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Government submit that Article 1 of Protocol No. 1 (P1-

1) is not applicable. They concede that the industrial actions

must have seriously affected the possibility for the applicant

to run his business, but emphasise that the State has in no way

prevented the applicant from running his business or in any other

way interfered with his activities. By not prohibiting the

industrial actions the State has tolerated them, as it tolerates

many other activities in the open market. The fact that the

applicant's suppliers did not deliver their goods and that the

goodwill of his business might have been affected negatively as

a result of the industrial actions could also have occurred as

a result of other events falling within the scope of, for

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

held responsible for the damage caused to the business. A similar

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

make States responsible for the non-fulfilment of private

contracts.

Should the Commission consider Article 1 of Protocol No. 1

(P1-1) to be applicable, the Government submit that the

interference was justified in view of the wide margin of

appreciation afforded to the Contracting States in this field.

They refer, in particular, to the particular features of the

Swedish system for collective bargaining which for many years has

kept industrial actions at a tolerable level, given that such

actions are prohibited as long as a collective agreement is in

force. The Government admit, however, that this system clearly

favours the various associations of employees and employers and

disregards the interests of those who do not wish to be a member

of any of those.

The applicant contends that there has been an unjustified

interference with his right to the peaceful enjoyment of his

possessions. No fair balance was struck between the conflicting

interests at stake, as he had to bear the whole burden of the

industrial actions. The interference was furthermore not carried

out in the public interest.

The Commission has proceeded to a preliminary examination

of this complaint in the light of the parties' submissions. It

considers that this complaint also raises questions of fact and

law which are of such a complex nature that their determination

requires an examination of the merits. The complaint cannot

therefore be declared inadmissible as being manifestly ill-

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

the Convention. No other ground for declaring it inadmissible has

been established.

3. The applicant finally complains that the court remedies

which he could resort to in order to obtain protection against

the industrial actions would not have been effective. He invokes

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 exclude that Article 6 para. 1 (Art.

6-1) is applicable and have no objections to the complaint under

this provision being declared admissible. They consider that the

dispute concerning the justification of the industrial actions

concerned the applicant's civil rights and obligations, in

particular as the actions must have seriously harmed the

possibility for him to run his business, thereby affecting his

property rights. The applicant had certain court remedies at his

disposal, namely a claim for damages against the State, the

unions and his suppliers. He could also have requested an

injunction in order to have the industrial actions stopped. All

these remedies would have enabled the courts to examine the

merits of the matter. There would, however, have been no legal

basis for a ruling in favour of the applicant. The Government

therefore doubt whether such a court examination could be

regarded as effective for the purposes of

Article 6 (Art. 6).

As regards the complaint under Article 13 (Art. 13), the

Government admit that the applicant had no effective remedy at

his disposal, should the Commission conclude that there has been

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

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

conclude that Article 6 (Art. 6) has been violated, the

Government submit that no separate issue arises under Article 13

(Art. 13).

The Commission has proceeded to a preliminary examination

of this complaint in the light of the parties' submissions. It

considers that this complaint also raises questions of fact and

law which are of such a complex nature that their determination

requires an examination of the merits. The complaint cannot

therefore be declared inadmissible as being manifestly ill-

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

the Convention. No other ground for declaring it inadmissible has

been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the

Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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GUSTAFSSON v. SWEDEN

GUSTAFSSON v. SWEDEN

LEXI