SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32955/96 by Michael ROEPSTORFF against Denmark

The European Court of Human Rights (Second Section) , sitting on 6 July 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr E. Levits,

Mr A. Kovler, judges , and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 9 July 1996 and registered on 12 September 1996,

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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Danish national, born in 1969.  He resides in Herlev , Denmark. Before the Court he is represented by Mr Christian Harlang , a lawyer practising in Copenhagen.

A. The circumstances of the case

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

At the material time the applicant was employed as a baker by FDB ( fællesforeningen af Danmarks Brugsforeninger ).  He was also a member of the trade union NNF ( Nærings - og Nydelsesmiddelarbejderforbundet ) and his employment was governed by a collective labour agreement between the NNF and the FDB.

On 11 September 1994 the applicant left his place of work in circumstances which remain in dispute.  The following day he received a letter from his employer by which his employment was terminated.  The applicant protested against the dismissal and contacted his trade union.  Following a discussion with the applicant the NNF sent a letter to the FDB on 23 September 1994 protesting against the applicant’s dismissal.

On 27 September 1994 a meeting was held between representatives of the NNF and the FDB during which the applicant’s situation was discussed.  The applicant did not participate in the meeting as, apparently, he could not be reached at such short notice.  From the minutes of the meeting it appears that the parties agreed that the FDB would withdraw the dismissal, that the applicant would resign as from 12 September 1994, that the FDB would consider positively a reemployment of the applicant in a similar position once he was capable of taking up his duties and that the FDB would pay 11,000 DKK to the applicant due to the particular circumstances of the case.  It was also agreed that the above settlement was subject to approval by the parties.

Subsequently the NNF discussed the settlement with the applicant who, following consultations with his lawyer, could not approve the text but requested certain additional guarantees as to employment, wages and seniority.

On 1 November 1994 another meeting was held between the representatives of the NNF and the FDB.  The applicant was aware of the date of this meeting but did not participate this time either.  According to the minutes of this meeting the above settlement was upheld with two additional guarantees in respect of the applicant’s salary and seniority.  The settlement was approved and signed by the representatives of the NNF and the FDB on 7 November 1994.

On the same date the City Court of Glostrup ( Civilretten i Glostrup ) received a writ by which the applicant instituted proceedings against the FDB claiming 35,426.89 DKK representing his salary from 11 September until 31 October 1994.  It appears that at this moment in time the applicant still considered himself employed by the FDB.  However, subsequently he refused the FDB’s offer of reemployment in accordance with the above settlement since he had found other employment.

In the proceedings before the City Court the FDB maintained, in particular, that the applicant could not submit further claims as he was bound by the settlement reached between the NNF and the FDB.  The applicant maintained, however, that this argument would, if upheld by the court, amount to a violation of his rights as secured to him by Article 6 § 1 of the Convention.

The City Court held an oral hearing in the case where the applicant, assisted by counsel, was heard.  The court furthermore heard three witnesses.  On the basis of an evaluation of the available evidence the City Court pronounced judgment in favour of the FDB on 3 May 1995.  The judgment reads, in its relevant part as follows:

(Translation)

“The settlement between the NNF and the FDB is final and it has been approved by [the representative of the NNF] on behalf of [the applicant].  It is noted in this connection that the NNF by virtue of the [collective labour] agreements has a standing and irrevocable authorisation to reach such settlements on behalf of its members.

On the basis of the evidence submitted the terms of the settlement must be considered fulfilled.

Accordingly, the court finds in favour of the defendant.

It is noted in this respect that [the applicant] will not be precluded from claiming damages from the NNF during a possible lawsuit, if [he] finds that during the settlement negotiations the NNF did not take proper care of [his] interests.  Thus, the settlement ought not to be set aside with reference to Article 6 § 1 of [the Convention]. ...”

The applicant appealed against the judgment to the High Court of Eastern Denmark ( Østre landsret ) which also held a hearing during which the applicant and the witnesses were heard again.  On 15 January 1996 the High Court upheld the City Court’s judgment.  The judgment reads, in its relevant parts, as follows:

(Translation)

Two judges ... opine as follows:

We find it established that [the applicant] himself requested his union NNF to secure that the dispute concerning his dismissal should be solved by negotiations between the NNF and the FDB. It must have been clear to [the applicant] that a solution in the case would hereafter be found in accordance with the rules governing labour disputes. Furthermore, we find it established that between the parties in question agreement was reached on the disputed settlement.

We find hereafter that, also without [the applicant’s] acceptance of the settlement, the NNF has had authorisation to reach it with binding effect for [the applicant]. With this reasoning we vote for [upholding the judgment].

Judge ... opines as follows:

First, I do not find that the NNF by virtue of the collective labour agreements has a standing and irrevocable authorisation to enter into an agreement as the one in question which does not concern a labour market dispute.

Second, I find it established that the reservation in the draft settlement referred to the NNF's approval as well as that of [the applicant]. ... I do not find it established that, when he received confirmation of [the NNF's ] approval of the settlement, [the representative of the FDB] believed or had any reason to believe that the agreement had not been approved by [the applicant] ... . Thus, the agreement is binding on [the applicant]. With this reasoning I vote as the majority. ...”

On 14 May 1996 the Board of Leave to Appeal ( Procesbevillingsnævnet ) rejected the applicant's request for leave to appeal to the Supreme Court ( Højesteret ).

B. Relevant domestic law and practice

The Danish labour market is to a high extent governed by collective agreements concluded between the labour market parties.  About 80 per cent of all employees are organised and nearly 90 per cent of all employees are covered by collective agreements.

As a consequence of the high rate of organisation, pay and working conditions in Denmark are mainly regulated by collective agreements between labour market partners.

Pay and working conditions may further be agreed individually between the individual employee and the employer.

There is an interaction among the three elements - collective agreements, individual agreements and legislation - when it comes to identifying the rights of an employee in relation to the employer.

A collective agreement has effect within the occupation field covered by the agreement.  An employer who has concluded or adhered to a collective agreement has a duty in relation to the trade union to pay the employees the wage and salary fixed in the collective agreement whether the employee is or is not a member of the organisation concerned.  However, a non-organised employee may not invoke rights under the collective agreement, but only under his or her individual agreement.  On the other hand employees have no independent and direct rights which can be invoked under the collective agreement.  Through the membership of a trade union, the union is considered empowered to act on behalf of its members.

As regards cases settled within the machinery set up for settlement of labour disputes, i.e. by arbitration or by the Labour Court, the right to take legal action is vested in the organisation which is a party to the agreement.  It is also the organisation which decides about the subject-matter of the case.  Before the ordinary courts of law it is the individual employee who has the right to sue.

As regards rights based on legislation the rule is that such rights may always be enforced by the ordinary courts of law.  The courts will hear the case whether or not the employee is a member of a trade union or other organisation.  In such cases it is always the individual employee who is entitled to bring the action and who may dispose of the subject ‑ matter of the case.

If the rights of the employee are based on a collective agreement , the legal situation may be summarised as follows:

If the employee is not organised and thus not attached to any organisation, but his or her rights are, nevertheless, based on a collective agreement, the practice is that the ordinary courts of law will hear the case.  Reference is made to U [1] 85/800 V and U 1983/730H.

If the employee is organised, the starting point is that the matter should be settled by the special machinery for settlement of labour disputes, i.e. by arbitration or by the Labour Court.  In such cases the general rule is that the organisations have the full disposal of the subject-matter and the right to take legal action.  An exception from this general rule follows from section 11, subsection 2, of the Labour Court Act which reads as follows:

(Translation)

“An employee shall, however, be entitled to bring an action for award of outstanding wages in the ordinary courts of law unless the organisation, in proceedings before the Labour Court, has waived this right on behalf of the employee or when the failure to pay wages is related to a labour market dispute.”

The ordinary courts of law have, inter alia on the basis of this provision, heard cases involving collective agreements, even if the organisation has failed to proceed with the case within the framework of the machinery set up for the settlement of labour disputes, cf. U85/997Ø, U54/935H and U94/953H in which express reference was made to the right of access to court under Article 6 of the Convention.

Any decision (judgment) of the Labour Court is final.  The Labour Court is the first and only level of jurisdiction, since no appeal lies against its decisions.  Consequently, the judgments of the Labour Court are directly enforceable in accordance with the rules of the Administration of Justice Act relating to enforcement of judicial awards, cf. Section 20 of the Act.

COMPLAINTS

1. The applicant complains that he has not had a fair hearing as the national courts have relied on the settlement reached between the NNF and the FDB thus depriving him of his right to bring before the courts claims under his individual employment contract.  The applicant invokes in this respect Article 6 § 1 of the Convention.

2. He complains further that his rights under Article 11 of the Convention have been violated in that the national courts granted the NNF a right to dispose of his individual rights irrespective of his interests and explicit wishes.

THE LAW

1. The applicant invokes Article 6 § 1 of the Convention maintaining that he did not have a fair hearing in the dispute concerning his employment.  Article 6 § 1 reads, as far as relevant, as follows:

“In the determination of his civil rights ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... .”

He argues, which is disputed by the Government, that by relying on the settlement reached between the NNF and the FDB the national courts deprived him of his right to bring before the courts claims under his individual employment contract.

The Court recalls that according to Article 19 of the Convention its duty is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention.  In particular, it is not its function to deal with errors of fact and of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.  Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for the regulation by national law and the national courts (cf. e.g. the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45 and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the present case the Court recalls that despite the settlement reached between the NNF and the FDB concerning the applicant he instituted proceedings against the latter claiming compensation for allegedly outstanding wages.  The Court notes that there was no statutory ground prohibiting the applicant from instituting proceedings against the FDB, nor did the national courts dismiss his action on the ground that the applicant lacked capacity to sue.  His claims, however, were rejected as the courts found it established on the basis of the available evidence that the settlement involving his dispute with his employer was valid and binding on him.  The Court also notes that the applicant had the benefit of adversarial proceedings.  At the various stages of these proceedings he was able to submit his arguments and the factual and legal reasons for rejecting his claims were set out in the national courts’ judgments .  The conclusions drawn from the available evidence can in no way be considered arbitrary and the Court finds no other elements which would indicate that the applicant in any other respect did not enjoy the guarantees secured by Article 6 of the Convention.  His allegations do not therefore disclose any appearance of a violation of this provision.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant complains furthermore of a violation of Article 11 of the Convention, the first paragraph of which reads as follows:

“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.”

He maintains that by the judgments of the national courts his trade union was granted a right to dispose of his individual rights irrespective of his interests and explicit wishes.

The Government maintain that the applicant did not exhaust domestic remedies in this respect in that he failed to raise in substance this particular complaint in the domestic proceedings.

The Court finds that it can leave open the question of exhaustion of domestic remedies because even assuming that this requirement has been fulfilled the complaint is inadmissible for the following reasons.

The Court does not find it established that the case concerns the applicant’s right to join or to withdraw from a trade union, but the issue raised by the applicant is rather a question of the legal relationship between the union and the applicant as a member.  The Court notes furthermore that under national law it is open to the applicant to institute proceedings against his trade union should he be of the opinion that it has acted contrary to rules governing their relationship.

The judgments of the national courts referred to in the present case do not, however, disclose any appearance of an infringement of the applicant’s rights as secured to him under Article 11 of the Convention.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President

[1] .  Danish weekly law report.