Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13537/88

by Jerry JOHANSSON

against Sweden

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 5 November 1987

by Jerry JOHANSSON against Sweden and registered on 15 January 1988

under file No. 13537/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen born in 1930 and resident

at Valbo. He is represented by Göran Ravnsborg, a lecturer at the

University of Lund.

The applicant is by profession an electrician and has been for

many years a member of the Swedish Electricians Trade Union (Svenska

Elektrikerförbundet). In 1981, the Trade Union Congress

(förbundskongressen) of the Electricians Trade Union recommended the

Board of the Union (förbundsstyrelsen) to start negotiations with the

Folksam Insurance company in order to organise a collective home

insurance for all the members of the Union.

On 20 September 1982, the Board of the Union recommended the

Council of the Union (förbundsrådet) to enter into an agreement with

Folksam for a collective home insurance.

On 23 November 1982, the Council of the Union decided to

accept the agreement not only on behalf of the Union but on behalf of

all the Union's individual members.

The agreement between the Union and Folksam came into effect

on 1 January 1983 and imposed a compulsory collective home insurance

on the members of the Union. There were no provisions for a member to

opt out. The Union was to pay 160 SEK per annum for each member.

The cost for the collective home insurance is funded partly

from Union funds and partly from an increase in membership fees.

It appears that of the 30 branches of the Union, 5 decided to

increase members' fees from 1,2 per cent to 1,3 per cent of the

member's salary.

The collective insurance scheme had met strong opposition from

a number of Union members, who considered the scheme interfered with

an individual's sphere of private life and deprived him of the power

to decide for himself. The applicant, with other Union members, took

proceedings against the Union before the Stockholm District Court

(tingsrätt) in order to obtain a declaration that the collective

insurance scheme, and the decisions on which it was based, were

invalid. The applicant argued that the Union's decision to agree to a

compulsory collective home insurance fell outside the objects of the

Union as provided for in the Union's regulations.

The District Court found in favour of the applicant in its

judgment of 17 January 1985. The Court found inter alia:

"... However, the opinion of the District Court is that

the home insurance cannot be considered to have such a

link to the Union members in their capacity as employees

that it falls within the scope of the objects of the Union

as those are defined in the private regulations of the Union.

For those reasons the Board of the Union and the Council of

the Union, which organs must be considered to have acted

in accordance with mandate from the Trade Union Congress in

this connection, have not had the power to decide on the

home insurance. Those Union decisions shall for that

reason ... be declared void."

The Union appealed to the Svea Court of Appeal (Svea hovrätt)

on 5 February 1985. In its judgment of 6 December 1985, the Court of

Appeal rejected the Union's appeal.

The Union appealed to the Supreme Court (högsta domstolen),

which delivered judgment on 6 May 1987. The Supreme Court found inter

alia that it was clear that the home insurance fell within the general

objects of the Trade Union Movement to promote the increase of its

members' financial standard. But it was doubtful whether it fell

within the scope of Section 1 of the Union's regulations which

provided that its task was to secure its members' interests in the

labour market and in the general economy and in that context and

otherwise contribute to a development of society on the basis of

democratic socialism. The Supreme Court nevertheless concluded that

the Union decisions as to home insurance could not be regarded as

concerning aims obviously alien to the objects of the Union and

therefore void. There was also no other ground on which the decisions

could be considered to be void.

COMPLAINTS

The applicant complains of the decision of the Supreme Court

empowering the Union to bind individual members in a collective

insurance scheme. He submits that the Court erred in its

interpretation of the membership agreement between the Union and its

members, in particular in not applying the principle of objective

interpretation and the principle that a party to an agreement is not

bound by anything which does not directly appear from the wording of

the agreement. He submits that the decision constitutes a serious

violation of his freedom of association, in both the negative and

positive sense, contrary to Article 11 of the Convention. He

considers that the insurance has no connection with his status as

employee or trade union member and is an entirely private matter with

which no other party should interfere. He argues that he has thereby

been deprived of his right to manage his own affairs. He has also

been compelled to become a policy holder in Folksam. He invokes

Articles 3, 8 and 17 of the Convention and Article 1 of Protocol No. 1

to the Convention.

The applicant also submits that the decision of the Supreme

Court cannot be accepted as the outcome of a fair hearing by an

impartial tribunal. He accordingly complains of a violation of

Article 6 para. 1 of the Convention.

The applicant also submits that there is no effective remedy

against the Supreme Court's alleged violations of the applicant's

rights. He invokes Article 13 of the Convention in this respect.

THE LAW

1. The applicant has complained that the Supreme Court has upheld

the decision of his Union to impose a scheme of collective insurance

on its members. He complains that this constitutes a violation of

Article 11 (Art. 11) of the Convention, which provides:

"1. Everyone has the right to freedom of peaceful assembly

and to freedom of association with others, including

the right to form and 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. This Article

shall not prevent the imposition of lawful

restrictions on the exercise of these rights by

members of the armed forces, of the police or of the

administration of State."

The Commission recalls that right to freedom of association

protects primarily against State interference. The question which

arises in the present case concerns the extent to which Article 11

(Art. 11) obliges the State to protect a trade union member against

measures taken by his union.

In the Commission's view the right to form trade unions

involves, for example, the right of trade unions to draw up their own

rules and to administer their own affairs. Such trade union rights

are explicitly recognised in Articles 3 and 5 of I.L.O. Convention

No. 87 which have been taken into account by the Commission in

previous cases (see e.g. No. 10550/83, Dec. 13.5.85, D.R. 42,

p. 178).

Nonetheless for the right to join a union to be effective the

State must protect the individual against any abuse of a dominant

position by trade unions (see Eur. Court H.R., Young, James and Webster

judgment of 13 August 1981, Series A. No. 44, p. 25, para. 63).

Such abuse might occur, for example, where exclusion or expulsion from

a trade union was not in accordance with union rules or where the

rules were wholly unreasonable or arbitrary or where the consequences

of exclusion or expulsion resulted in exceptional hardship.

The Commission recalls that the present case concerns the

applicant's dispute as to the validity of the collective home

insurance scheme entered into by his Union. The Commission notes that

the Supreme Court found that the Union's decision to affiliate its

members to the collective insurance scheme fell within the scope of

the Union's legal competence under its regulations and that it was

accordingly valid. The Commission finds no indication that the

decision of the Supreme Court was unreasonable or arbitrary or that

the applicant's affiliation to the collective insurance scheme

resulted in such an abuse of a dominant position that his right to

freedom of association under Article 11 (Art. 11) of the Convention

can be said to have been violated by the respondent Government.

It follows that this complaint is manifestly ill-founded

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

2. The applicant has also complained that the decision

constitutes a violation of Articles 3, 8 and 17 (Art. 3, 8, 17) of the

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

The Commission has examined these complaints as they have been

submitted by the applicant. The Commission observes that when the

applicant became a member of the trade union, he thereby entered into

a private agreement with the trade union, which, inter alia, implied

that he accepted the regulations of the trade union. The applicant was

able to challenge the validity of the insurance scheme before the

courts, which at the final instance found that the scheme was valid

and within the competence of the Union. The Commission also notes

that the resulting increase, if any, in the applicant's membership

fees was in the order of 0,1 per cent of his salary. The Commission

finds, in these circumstances, that the applicant's complaints do not

disclose any appearance of a violation of the rights and freedoms

invoked by him.

It follows that these complaints are manifestly ill-founded

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

3. The applicant has also complained that he did not have a fair

hearing before the Supreme Court contrary to Article 6 (Art. 6) of the

Convention.

The Commission considers that the fact that the Supreme Court

reached a decision, with which the applicant strongly disagreed, is

not sufficient to substantiate a complaint of not receiving a fair

hearing contrary to Article 6 para. 1 (Art. 6-1) of the Convention. The

applicant has put forward no other complaint or mentioned any

procedural irregularity which could have impinged on the fairness of

the hearing.

In these circumstances, the Commission finds that the

complaint is manifestly ill-founded within the meaning of Article 27

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

4. The applicant has lastly complained that he has no effective

remedy against the Supreme Court's decision contrary to Article 13

(Art. 13) of the Convention.

The Commission notes that the applicant complains of the

Supreme Court which is the highest judicial authority in the Swedish

legal system. In such circumstances, the application of Article 13

(Art. 13) is subject to an implied limitation (see e.g. No. 8603/79

and others, Dec. 18.12.80, D.R. 22 p. 147 at p. 224) and cannot be

interpreted as guaranteeing a further remedy. Consequently, this

complaint must also be declared manifestly ill-founded within the

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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JOHANSSON v. SWEDEN

JOHANSSON v. SWEDEN