SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29529/95 by Francesco SCHETTINI and Others against Italy

The European Court of Human Rights (Second Section), sitting on 9 November 2000 as a Chamber composed of

Mr A.B. Baka , President , Mr B. Conforti , Mrs V. Strážnická , Mr M. Fischbach , Mr P. Lorenzen , Mrs M. Tsatsa - Nikolovska ,

Mr E. Levits , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 October 1995 and registered on 12 October 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Italian nationals; their names, year of birth and places of residence are set out in the annex. The first applicant is a secondary school teacher and also a member of the directive board of an independent trade union open to employees of public schools, called “School basic committees” ( Comitati Base della Scuola - hereinafter referred to as “ Cobas ”).The other applicants are secondary school teachers who are also members of the said trade union.

The applicants are all represented by Mr. Ascanio Amenduni , a lawyer practising in Bari . The respondent Government are represented by Mr Vitaliano Esposito , Co-Agent.

The facts of the present case, as submitted by the parties, may be summarised as follows.

A . The circumstances of the case

On 1 December 1994 a decree was issued by the Ministry for Civil Service which set out, pursuant to Article 47 paragraph 2 of Law Decree no. 29 of 3 February 1993, the trade unions which were considered under Article 8 of Presidential Decree no. 395 of 23 August 1988, to be the “most representative” ( sindacati maggiormente rappresentativi ) of the school compartment and were accordingly admitted to take part in the collective bargaining. Cobas was not amongst these trade unions.

On 11 May 1995 the three most representative trade unions and ARAN - the Agency for the representation of public administrations in negotiations (see below) entered into a collective labour agreement ( contratto collettivo ) on terms of employment and work conditions of public school teachers.

Cobas , which, as well as other excluded trade unions, disagreed with the content of the collective agreement, embarked on a number of protest actions such as demonstration, strikes and occupations of schools. They also organised an informal referendum, whereby the majority expressed its discontent with the adopted agreement.

Subsequent to these events, on 23 June 1995 a new collective agreement was concluded, which included certain amendments urged by the dissenting trade unions.

On 4 August 1995 the Court of Audit endorsed the collective agreement, which thus acquired legal force erga omnes , i.e. in respect of all employees of the compartment, including those whose trade unions were not admitted to the collective bargaining.

B. Relevant domestic law

Framework Law on Civil Servants no. 93 of 29 March 1983 ( legge quadro sul pubblico impiego n. 93/83), hereinafter referred to as “the Law”, divided civil servants into eight categories called “compartments”. Each compartment was regulated by its own “compartment collective agreement” ( contratto collettivo compartimentale ).

Section 6 of the Law regulated the system of collective bargaining. The procedure can be summarised as follows.

At least eight months prior to the expiry of the collective agreement, negotiations were opened between, on the Government’s side, a governmental delegation set up for each compartment and, on the employees’ side, the most representative trade unions on the national level. Certain other trade unions (the most representative on the compartment level) could be allowed to participate, whereas single employees were excluded from the negotiations.

Once an agreement was reached, within thirty days the Council of Ministers would have, after verifying whether the agreement is in accordance with the relevant legislation and with the estimated budget for the following years, to endorse the agreement, which would then be signed by the parties. Within sixty days from the date of the signature, the collective agreement would have to be enacted in the form of a Decree issued by the President of the Republic, after approval by the Council of Ministers. The Presidential Decree was to be endorsed by the Court of Audit (however, in practice, the Court of Audit carried out this task prior to the verification by the Council of Ministers). At this stage the agreement would be valid erga omnes . The collective agreement, in the form of a Presidential Decree, would be published in the Official Gazette and enter into force on the day after its publication. It would be valid for a period of three years from its entry into force.

Article 8 of Presidential Decree no. 395 of 23 August 1988 set out the criteria for determining the degree of representation of the trade unions in each compartment. These criteria were: a) the percentage of proxies for paying contributions which the trade union is given by the workers ( consistenza associativa ); b) the percentage of votes obtained in the elections of different administrative organs; c) the presence and importance of the trade union’s bodies in the compartment.

Law Decree no. 29 of 3 February 1993 assimilated civil servants (including employees in public schools) to private employees, thus making ordinary labour law applicable to their employment contracts. Framework collective compartment agreements are to be entered into; an Agency for the representation of public administrations in negotiations ( Agenzia per la rappresentanza negoziale delle pubbliche amministrazioni - ARAN) was created and placed under the supervision of the Presidency of the Council of Ministers.

Under Article 47, the degree of representation of trade unions was to be determined in an agreement between the President of the Council of Ministers and the trade unions. The relevant Presidential Decree could be appealed to the administrative courts by those trade unions which were considered not to be representative enough, through an expedited procedure. Article 47 was abrogated by Presidential decree No. 316 of 28 July 1995.

Decree 396/97 introduced new criteria for determining the real degree of representation of workers in trade unions with a view to selecting the trade unions to be admitted to the collective bargaining. Pursuant to the new Article 47bis of Decree 29/93, workers must be represented by trade unions whose degree of representation in the relevant compartment is at least 5%, which percentage is calculated on the basis of the average between the percentage of proxies for paying contributions the trade union was given by the workers ( dato associativo ) and the percentage of votes it obtained in the personnel elections ( dato elettorale ).

The new procedure for negotiating collective agreements is as follows. Before commencing the collective bargaining, instructions ( atti d’indirizzo ) are issued by the Department Sections ( comitati di settore ) of the Public Administrations. Negotiations are then carried out by the trade unions and the ARAN. Once a draft agreement has been reached, the ARAN submits it to the Department Section of the relevant compartment, which, within five days, has to express its opinion thereon. Upon the Section’s favourable opinion, the following day ARAN submits the calculation of the prospective costs to the Court of Audits which, within fifteen days, must certify its compatibility with the budget. In case the Court of Audits does not issue its decision within the said time-limit, its approval is considered as given.

Upon the Court of Audit’s explicit or implicit approval, the President of ARAN signs the agreement, which acquires legal force erga omnes , i.e. in respect of all employees of the compartment, including those whose trade unions were not admitted to the collective bargaining.

Upon the Court of Audit’s negative decision, ARAN must try, if possible, to reduce the prospective costs, otherwise the negotiations are reopened.

The collective agreement can be challenged before the administrative courts by the trade unions which participated in the negotiations to the extent that it does not correspond to what had been agreed upon. It can also be challenged by the dissenting trade unions insofar as their dissenting opinions have not been taken into consideration.

Each employee can appeal to the regional administrative courts against any decision directly affecting him/her, which is taken in the enforcement of the collective agreement.

COMPLAINTS

1. The applicants complain in the first place under Article 13 in conjunction with Article 1 of Protocol No. 1 about the lack of an effective remedy whereby they can challenge the content of the collective agreement at issue, in particular the insufficient wage raise they benefited from under the new agreement.

2. They further complain under Article 13 in conjunction with Article 11 of the Convention that their trade union is prevented from protecting its members’ interests through the negotiations at issue.

3. They finally invoke Article 13 in conjunction with Article 14 of the Convention that it is not possible for them to complain about the exclusion of their trade-union from collective bargaining. They allege in particular that the most representative trade unions at the national level - which were admitted to the bargaining - do not represent the majority of the employees in public schools, whereas Cobas does.

THE LAW

The applicants allege that they have no effective remedy at the national level within the meaning of Article 13 of the Convention, whereby they may complain about the unsatisfactory financial content of the agreement, about the exclusion of Cobas from the collective bargaining, and about the discriminatory treatment experienced by reason of their exclusion as compared to the admitted trade unions.

Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in the 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 Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Ilhan v. Turkey [GC], N° 22277/93, § 97, ECHR 2000-VII, and Messina v. Italy (n° 2), No. 25498/94, § 89, to be published).

It must therefore be ascertained in the first place whether the applicants’ allegations as to a violation of Article 1 of Protocol no. 1, Article 11 and Article 11 in conjunction with Article 14 respectively can be considered as “arguable”.

1. As regards the financial content of the collective agreement

Article 1 of Protocol No. 1 to the Convention provides:

“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 applicants invoke Article 1 of Protocol no. 1 in respect of the financial impact of the collective agreement on their future income. They complain in particular about the insufficient salary rises. The Court recalls however that future income constitutes a “possession” within the meaning of  Article 1 of Protocol No. 1 only if the income has been earned or where an enforceable claim to it exists (see Eur. Comm. H.R., no. 19819/92, dec. 5/7/94, D.R. 78, p. 88). Furthermore, Article 1 of Protocol No. 1 does not guarantee, as such, the right to a certain rise in salary (see, mutatis mutandis , Eur. Comm. H.R., No. 24581/94, Dec. 6.4.95, D.R. 81, p. 123 and No. 19819/92, Dec. 5.7.94, D.R. 78, p. 88).

In these circumstances, the Court considers that the applicants’ allegation of a violation of Article 1 of Protocol No. 1 is not “arguable”, so that their complaint under Article 13 in conjunction with Article 1 of Protocol No. 1 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under § 4 of the same provision.

2. As regards the alleged impossibility for Cobas to protect the interests of its members as a result of its exclusion from the collective bargaining

Article 11 of the Convention provides as follows:

“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. 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 the State.”

The Court recalls that, according to its case-law, although Article 11 does not secure any particular treatment of the trade unions, or their members, by the State, such as a right to conclude any given collective agreement, the words “for the protection of [their] interests” in Article 11 § 1 show that the Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action. In this respect the State enjoys a wide margin of appreciation as to the means to be used and the Court has recognised that the concluding of collective agreements may be one of these (see Gustafsson v. Sweden judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, p. 653, § 45 and Swedish Engine Driver's Union v. Sweden judgment of 6 February 1976, Series A no. 20, p. 15, § 39). So, if members of a trade union have a right, in order to protect their interests, that the trade union should be heard, Article 11 leaves each State a free choice of the means to be used towards this end. While the concluding of collective agreements is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests.

In the present case, the Court notes that the applicants were able to engage in various kinds of activity vis-à-vis the Government. They organised demonstrations and a strike at the end of the school-year; they occupied schools and organised an informal referendum. The applicants’ trade-union admittedly managed to impose a reconsideration of the collective agreement signed on 11 May 1995, which led to the conclusion of an amended collective agreement on 23 June 1995.

In these circumstances, the Court considers that it cannot be said that the applicants’ trade union has been deprived of the possibility of protecting its members’ interests (see the Swedish Engine Drivers’ Union v. Sweden judgment already cited, p. 16, § 41).

It follows that the applicants’ allegation of a violation of Article 11 is not “arguable”, so that the complaint under Article 13 in conjunction with Article 11 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under § 4 of the same provision.

3. As regards the allegedly discriminatory exclusion from the collective bargaining

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicants consider that they should be admitted to the bargaining irrespective of whether they meet the applicable criteria for assessing their degree of representation. They consider that they should be given access to an effective remedy in order to challenge the very same criteria for assessing the degree of representation of trade unions. In their opinion, their exclusion from the bargaining is discriminatory in that the trade unions which are admitted thereto do not represent the majority of public school teachers.

The Government argue in the first place that the applicants failed to exhaust the domestic remedies which were available to them under Italian law, in that they did not apply to the administrative courts against the ministerial decree of 1 December 1994 whereby Cobas was excluded from the collective bargaining.

The applicants underline that their complaint is precisely the lack of effectiveness of the remedy indicated by the Government. They do not question that Cobas could not, pursuant to the applicable criteria, be considered as one of the most representative trade unions, so that, even if they had applied to the administrative courts, they would have had no prospects of success. They consider instead that Cobas should have been admitted to the bargaining irrespective of whether it met the legal requirements.

The Court observes that the remedy which the Government have indicated affords the opportunity of challenging the assessment of the degree of representation of a trade union according to the criteria set out in the applicable legislation. The applicants, however, admit that their trade union does not meet the requirements of the said legislation: in these circumstances, the Court agrees with their view that an application to the administrative court against the ministerial decree excluding their trade union from the bargaining could not remedy directly the situation complained of. The remedy indicated by the Government cannot therefore be considered as an “effective” one to be exhausted prior to applying to the Court. The Government’s preliminary objection must accordingly be rejected.

The applicants consider that even those trade unions which do not meet the criteria listed in the applicable legislation should be admitted to the collective bargaining, because in a pluralist society all trade unions should enjoy the same rights and freedoms and the same possibilities of influencing the public choices in the fields of interest. In their opinion, neither the legislation which was applicable at the time of the facts of the present case, nor the new legislation allow the assessment of the actual degree of representation of trade unions: the exclusion from the bargaining of Cobas , which is representative of a minority and yet is proactive and determined to defend the interests of its members, is not founded on reasonable grounds.

The Government point out that Article 11 of the Convention does not guarantee the right for trade unions to be admitted to collective bargaining: the exclusion of minor trade union therefrom has been accepted as reasonable by the Court provided that this exclusion cannot be found to be discriminatory (they refer to the Swedish Engine Drivers’ Union judgment, cited above). The exclusion of Cobas is based on its weak degree of representation, and is therefore in conformity with and proportionate to the legitimate aim of rendering the collective bargaining viable and effective. The Government point out that Cobas did not qualify for the following collective bargaining (relating to the years 1998-2001) either, despite the new criteria introduced by the 1997 law.

The Court recalls in the first place, insofar as the applicants complain about their impossibility to challenge the criteria of representation set out in the applicable legislation, that Article 13 of the Convention does not stretch to guarantee a remedy allowing a Contracting State’s law as such to be challenged before a national authority on the ground of being contrary to the Convention or equivalent domestic norms ( Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 30, § 77 in fine; Ambruosi v. Italy ( dec ), no. 31227/96, unreported).

The Court must examine whether the difference in treatment between Cobas and the trade unions admitted to the collective bargaining is compatible with Article 14. It reiterates that a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences between otherwise similar situations justify a different treatment (see, most recently, Chassagnou and Others v. France [GC], n° 5088/94, 28331/95 and 28443/95, ECHR 1999-III, § 91).

In the present case, the Court observes that the exclusion from collective bargaining of those trade unions which are not the most representative ones is justified by the necessity of securing the viability and effectiveness of the bargaining, which, in the Court’s opinion, is a legitimate aim (see the Swedish Engine Drivers’ Union judgment, cited above, p. 17, § 46).

It remains to be seen whether the justification for the exclusion is “reasonable and objective”. The Court observes that the criteria set out in the legislation which was applicable at the time of the collective bargaining of 1995 have been developed with a view to selecting those trade unions which have the largest degree of representation and it sees no reason to doubt that these criteria genuinely reflect the Government’s concern to achieve a reasonable compromise between the viability of the process of collective bargaining and the democratic representation of public employees. The Court further notes that these criteria have been later amended and improved and yet, according to the applicants, they are still inadequate. The Court considers however that it is not its task to say what criteria would best reflect the degree of representation of the trade unions in each compartment. Furthermore, the applicants concede that Cobas is only representative of a minority of school teachers.

In these circumstances, the Court considers, also in the light of the power of appreciation which is left to the Italian State, that the justification for the difference in treatment to the detriment of the applicants’ trade union as compared to the trade unions admitted to the collective bargaining can be said to be “reasonable and objective” for the purpose of Article 14.

It follows that the applicants’ allegation of a violation of Article 14 in conjunction with Article 11 is not “arguable”, so that the applicants’ complaint under Article 13 in conjunction with Articles 11 and 14 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under § 4 of the same provision.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Erik Fribergh Andrá Baka Registrar President

ANNEX

Name Domicile Year of birth

1. Francesco SCHETTINI Bari 1931

2. Margherita COLASUONNO Bari 1945

3. Giuseppe INCADORIA Bari 1941

4. Emmanuele DI CANDIA Bari 1940

5. Anna SODERO Foggia 1939

6. Angela Maria BASILE Bari 1950

7. Marco MARCHIONETTI Pesaro 1938

8. Luciano CAPASSO Bari 1949

9. Nicola MORETTI Bari 1944

10. Isidora MARCONI Bari 1948

11. M. Brigida CALISI Bari 1949

12. Rosa PERTA Bari 1935

13. Pietro MEZZO Bari 1945

14. Albe ARMENTANO Bari 1943

15. Paola LOPEZ Bari 1945

16. Maria Antonietta NITTA Bari 1938

17. Giuseppina PAPPALEPORE Bari 1950

18. Maria Grazia VILLANI Bari 1943

19. Maria AQUARO Bari 1961

Name Domicile Year of birth

20. Rosario PROCACCI Bari 1935

21. Loredana VOX Bari 1955

22. Maria D'ANDILLI Bari 1942

23. Irene FERRI Bari 1949

24. Silvana GRILLI Bari 1950

25. Angela Maria MELE Bari 1945

26. Lucia SBRIZZAI Bari 1956

27. Maria MASI Bari 1940

28. Addolorata PALMITESSE Bari 1938

29. Giuseppe MICUNCO Bari 1945

30. Marcello TENDI Bari 1954

31. Maria Rosaria PASQUALI Bari 1946

32. Anna BARBONE Bari 1941

33. Pasquale MARTINO Bari 1948

34. Lea BORRELLI Bari 1962

35. Laura CRISPINO Bari 1946

36. Raffaella INDELICATI Bari 1949

37. Giuseppina SALERNO Bari 1947

38. Anna DE GIGLIO Bari 1936

39. Rosalba MICELLI Bari 1947

40. Massimo CARUSI Bari 1952

Name Domicile Year of birth

41. Andrea GRADINI Bari 1946

42. Maria GRATTELLI Bari 1953

43. Rosa GARDALETA Bari 1942

44. Rachele IATEO Bari 1930

45. Delia PELLERANO Bari 1945