Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12733/87

by Stallarholmens Plåtslageri o Ventilation

Handelsbolag and others

against Sweden

The European Commission of Human Rights sitting in private

on 7 September 1990, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. DANELIUS

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 4 January 1987

by Stallarholmens Plåtslageri o Ventilation Handelsbolag and others

against Sweden and registered on 5 February 1987 under file No.

12733/87.

Having regard to the written observations submitted by the

Government on 19 December 1989 and the applicants' observations of

21 March 1990.

Having deliberated;

Decides as follows:

THE FACTS

The facts, as submitted by the parties, may be summarised

as follows.

Particular circumstances of the case

The applicants are Stallarholmens Plåtslageri o Ventilation

Handelsbolag, a company with its seat at Stallarholmen, and the owners

of the company: Lars-Fredrik Forsbäck, born in 1949, and his wife

Barbro Forsbäck, born in 1949, both resident at Stallarholmen. The

applicants are represented by Mr. Bertil Grennberg, a patent attorney

practising in Stockholm.

The applicant company is a member of FFSO (Fria Företagares

SamOrganisation, Association of Independent Businessmen), an organisation

of small employers.

On 30 March 1982 the applicant company (hereinafter referred to

as "the company") signed an accessory agreement (hängavtal) with the

Swedish Sheet Metal Workers' Union (Svenska Bleck- och Plåtslagare-

förbundet). The agreement contains, inter alia, a section according to

which the company was bound, unless otherwise provided in the

accessory agreement, to apply the collective agreement applicable at

any time between the Employers' Association of the Swedish Plateworks

(Plåtslageriernas Riksförbund) and the Swedish Sheet Metal Workers'

Union.

The Swedish Sheet Metal Workers' Union instituted proceedings

against the applicant company before the Labour Court (arbetsdomstolen)

and claimed that the company had violated the agreements. The Union

claimed that the company was obliged to pay holiday salary

(semesterlön) to their employees and that the company had violated

its duty to negotiate. The Union claimed that the company should pay

holiday salary in the amount of 41,252 SEK and general damages for

violation of the collective agreement in the amount of 20,000 SEK.

Before the Labour Court the applicants objected to the

participation of a lay assessor from the Swedish Employers'

Confederation (Svenska Arbetsgivareföreningen, SAF). They submitted

that the claimant (the Union) had wrongly stressed that the company

belonged to FFSO; it was well-known that the relations between FFSO

and SAF were not good. The applicants invoked Article 6 para. 1 of the

Convention. By decision of 22 May 1986 the Labour Court rejected this

challenge on the ground that there were no circumstances which would

appear to upset the impartiality of the lay assessors.

By a judgment of 20 August 1986 the Labour Court found that

the company had violated the collective agreement by refusing to

negotiate and by failing to pay holiday salaries and certain fees

under the collective agreement. The Labour Court ordered that the

company pay to the Union 18,729 SEK as regards holiday salaries and

collective agreement fees and general damages in the amount of 20,000

SEK. The company was also ordered to pay legal costs in the amount of

14,662 SEK.

The Labour Court was composed of one professional judge and

two lay assessors. The latter were Sten Wassberg, who was employed by

SAF, and Bert Lundin, who is the former president of the Swedish

Metal Workers' Union (Svenska Metallindustriarbetareförbundet), which,

like the Swedish Sheet Metal Workers' Union, is an organisation

affiliated to the Swedish Trade Union Confederation

(Landsorganisationen, LO) of which Bert Lundin was a Bureau member.

The lay assessors had been appointed by the Government after

nomination by SAF and LO respectively.

Relevant domestic law

The provisions which regulate proceedings in the Labour Curt

and the composition of the Labour Court are laid down in the 1974

Litigation in Labour Disputes Act ("the 1974 Act"; lagen om rättegången

i arbetstvister).

Labour Court procedures are based on the procedural rules

which apply in the ordinary courts to actions amenable to out of court

settlements. The relevant provisions are to be found in the Code of

Judicial Procedure (rättegångsbalken). In view of the type of cases

involved and the special conditions under which the Labour Court

operates, certain regulations which deviate from the provisions of the

Code of Judicial Procedure are included in the 1974 Act. Thus, the

procedural rules under the Code of Judicial Procedure apply, unless the

1974 Act provides otherwise.

The Labour Court is composed of professional judges and of

members representing the employers and the employees with individual

and equal voting rights for each participating member. When more than

one member of the Court is to examine a case, an equal number of

employer representatives and employee representatives participate.

Organisations considered to best represent conditions in the

Swedish labour market have the right to propose employer and employee

members of the Court. The decisive factor in this context is not

merely the size of the organisation, that is the number of its

members, but also its influence on legal developments on the labour

market through the negotiation of collective agreements or in other

ways.

Employer and employee members of the Court participate in the

examination of cases, not as representatives of the parties appearing

before the Court, but to provide the Labour Court with expert knowledge

of the legal opinions and views which are formed on the labour market

at large.

Members of the Labour Court are appointed by the Government

for a period of three years. They have equal status in every respect.

Also the members representing special interest groups on the labour

market thus swear the judicial oath, in accordance with the Code of

Judicial Procedure Chapter 4 Section 11, in the same way as

professional judges and lay assessors in the ordinary courts. Under

this oath, they are obliged to render judgment in accordance with

existing law, to be independent and impartial and to resist influence

by external pressures of any kind.

According to Chapter 11 Section 5 of the Instrument of

Government (regeringsformen), permanently appointed judges cannot, in

principle, be dismissed. This rule does not apply to judges in the

Labour Court, but they cannot be dismissed during the period for which

they are appointed.

The general regulations in Chapter 4 Section 13 of the Code of

Judicial Procedure regarding disqualification or challenge due to

conflict of interests are applicable also in the Labour Court. These

rules state, for example, that anyone (personally or as a

representative of a company, union etc.) who is a party in the dispute,

or otherwise concerned in the dispute, or who can expect significant

advantage or damage from the outcome of the dispute, must not

participate in the examination of a case. The same applies to anyone

who is opposed to or on unfriendly terms with a party in the dispute,

to anyone who has been connected with the dispute in another capacity

and to anyone who has represented one of the parties. In addition,

there is a general provision regarding conflict of interests, where

special circumstances exist which may impair confidence in the

member's impartiality.

As applied to the Labour Court, the disqualification or

challenge rules mean that a member of the board of an employer or

employee association may not participate in a case where the

association is one of the parties involved or has intervened in the

case. The rules regarding persons who can expect significant

advantage or damage from the outcome of the case or the regulation

regarding other special circumstances which may impair confidence in

the impartiality of the member, have, in view of the Court's

structure, only had a very restrictive application. For example, in

practice, members representing the head organisations or

associations/unions of either the employers or the employees

participate in cases concerning the interpretation of central

agreements which are the results of negotiations where the members

themselves have formed part of the central negotiating delegations on

either side.

COMPLAINTS

1. The applicants allege that the Labour Court was not

"independent and impartial" as required by Article 6 para. 1 of the

Convention.

They also allege a violation of Article 6 on the ground

that the judgment was not pronounced publicly.

2. The applicants allege that they are persecuted because they

are affiliated to FFSO. The Labour Court which settles the disputes is

composed of members hostile to FFSO. SAF tries to stop FFSO. The

applicants allege a violation of Article 11 in conjunction with

Article 17 of the Convention.

3. The applicants submit that the facts also constitute a

violation of Articles 13 and 14 of the Convention.

4. Finally, the applicants allege that the judgment of the Labour

Court involves a violation of the right to peaceful enjoyment of

possessions protected by Article 1 of Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 January 1987 and

registered on 5 February 1987.

On 4 September 1989 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application limited to Article 6 of the Convention.

The Government's observations were received by letter dated

19 December 1989 and the applicants' observations were dated

21 March 1990.

THE LAW

1. In their written observations, the applicants state that they

do not pursue their complaint under Article 6 para. 1 (Art. 6-1) of

the Convention that the judgment was not pronounced publicly. In

these circumstances and having regard to its decision on

admissibility in the Helmers case (No. 11826/85, Dec. 9.5. 89, to be

published in D.R.) the Commission finds no reason to examine this

complaint.

2. The applicants allege violations of Articles 6 (Art. 6)

and 11 (Art. 11) of the Convention on the ground that the Labour Court

was not an independent and impartial tribunal and the choice of lay

assessors from a limited number of employers' and employees' unions

involved discrimination against the applicants. The applicants also

invoke Articles 13 (Art. 13), 14 (Art. 14) and 17 (Art. 17) of the

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

Convention.

The Government make no objection against the admissibility of

the application under Article 26 (Art. 26) of the Convention. They

submit, however, that the application is manifestly ill-founded

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

Convention.

3. Article 6 para. 1 (Art. 6-1) first sentence of the Convention,

insofar as relevant, reads:

"In the determination of his civil rights and

obligations..., everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law."

As to the complaint that the Labour Court was not an

"independent and impartial tribunal", the Commission recalls the

following case-law.

When examining whether a specific body can be considered

"independent", regard must be had, inter alia, to the manner of

appointment of its members and their term of office, to the existence

of guarantees against outside pressure and to the question whether

the body presents an appearance of independence. As to the question

of impartiality, two tests must be made: a subjective test under which

it is sought to establish the personal conviction of a given judge in

a given case, and an objective test, aimed at ascertaining whether the

judge offered guarantees sufficient to exclude any legitimate doubt in

this respect (cf. Eur. Court H.R., Langborger judgment of

22 June 1989, Series A no. 155, p. 16, para. 32).

In the Langborger case (loc. cit.), the Commission and the Court

were seized with an issue of a similar nature regarding the Swedish

Housing and Tenancy Court (bostadsdomstolen) where the lay assessors

had been nominated by the dominating unions on the housing and rent

market and where the dispute before the Housing and Tenancy Court

concerned the question whether a negotiation clause in the applicant's

lease should be retained. The European Court of Human Rights stated,

inter alia, as follows (above-mentioned Langborger judgment, p. 16,

paras. 34-35):

"34. Because of their specialised experience, the lay

assessors, who sit on the Housing and Tenancy Court with

professional judges, appear in principle to be extremely

well qualified to participate in the adjudication of

disputes between landlords and tenants and the specific

questions which may arise in such disputes. This does not,

however, exclude the possibility that their independence and

impartiality may be open to doubt in a particular case.

35. In the present case there is no reason to doubt the

personal impartiality of the lay assessors in the absence of

any proof.

As regards their objective impartiality and the question

whether they presented an appearance of independence,

however, the Court notes that they had been nominated by,

and had close links with, two associations which both had an

interest in the continued existence of the negotiation

clause. As the applicant sought the deletion from the lease

of this clause, he could legitimately fear that the lay

assessors had a common interest contrary to his own and

therefore that the balance of interests, inherent in the

Housing and Tenancy Court's composition in other cases, was

liable to be upset when the court came to decide his own

claim.

The fact that the Housing and Tenancy Court also included

two professional judges, whose independence and impartiality

are not in question, makes no difference in this respect."

In the present case, the applicants do not question the

personal impartiality of the lay assessors. In the absence of proof,

the Commission finds no reason to doubt the personal impartiality of

the lay assessors.

As regards the objective impartiality, the Government submit that

the present case is different from the Langborger case. They consider

that there is no reason for the applicants to fear that the lay

assessors had a common interest opposed to the applicants' interest.

The Government point out that here the dispute concerned the question

whether or not the applicant company had violated the rules of the

accessory agreement by not paying holiday salary and certain fees

according to the collective agreement and also whether the company had

violated its duty to negotiate with the trade union. When examining

this issue the Labour Court had to determine a question which

primarily was one of evaluating evidence. This question did not

directly involve the lay assessors. Neither did the two organisations

SAF and LO have any specific interest in the outcome of the case.

There was no interpretation of a principal character to be made of the

collective agreement in question, the outcome of which was of any

importance to the organisations represented by the lay assessors. For

these reasons, the Government submit that the balance of interests,

inherent in the Labour Court's composition, was not upset when the

Court came to decide the claim against the company. The mere fact that

the lay assessors are or have been active in SAF or LO is not

sufficient to consider them to lack impartiality and independence.

As to the applicants' argument that they had no representative

on the Court, whereas the opposing party had, the Government state

that the lay assessors are not to be seen as representatives of the

parties in the case but as independent judges in their own capacity.

A system where each party in every case would have its own

representative on the Court would have an effect, which would be

contrary to the one that is aimed at, i.e. the establishment of an

impartial tribunal with an inherent balance of different interests.

For the same reasons, the fact that there has been a press libel case

between Bengt Zachrisson on the one hand and the publisher of the SAF

newspaper on the other, is irrelevant for the question of the

impartiality of the lay assessors in the case between the Swedish

Sheet Metal Workers' Union and the company before the Labour Court.

The applicants submit in reply that the Court was not

independent and impartial for the following reasons. On the basis of

the reasoning of the European Court in the Langborger case, it is

sufficient for the applicants to show that they had doubts as to the

independence and impartiality of the Court and that these doubts were

reasonable. The existence of doubt is already clearly shown by the

applicants' challenge of the lay assessors before the Labour Court.

The applicants do not contest in general the composition of

the Labour Court in cases where an employer belonging to SAF is

involved in a dispute with an employee belonging to LO. However, in

the present case the applicants could legitimately fear that their

affiliation to FFSO and FAF (Fria Arbetsgivares Förening, Association

of Independent Employers) would be to their detriment. The dispute

before the Labour Court was brought by the Swedish Sheet Metal

Workers' Union which had its interests represented on the Court but

the applicants had no corresponding representatives. In regard to the

animosity between FFSO and FAF, on the one hand, and SAF, on the

other, the applicants recall that in October 1985 the SAF weekly

magazine published an article against FAF. There was thus not a

proper balance of interests on the Court and the applicants could

therefore reasonably fear that the Court was not impartial. In the

present case, SAF and LO had a common interest of getting rid of the

newcomer on the labour market and LO had an interest of obtaining the

damages claimed whereas SAF had an interest of maintaining its

monopoly and of showing to employers that they had no choice but to

join SAF. These common interests make the case similar to the

Langborger case.

The Commission considers that, in accordance with the principles

developed in the Langborger case, the decisive issue is whether the

balance of interests in the composition of the Labour Court was upset

and, if so, whether any such lack of balance could make the Court lack

the requirements of impartiality and independence in the determination

of the particular dispute before the Court. This could be so either

if the lay assessors had a common interest contrary to those of the

applicants or if their interests, although not common, were such that

they were nevertheless opposed to those of the applicants.

In this respect the Commission recalls that in the Langborger

case the applicant had sought the deletion of a clause from his

lease, a clause which had previously been agreed upon between

organisations which had close links with the organisations which had

nominated the lay assessors sitting in that applicant's case. The

dispute in that case had accordingly a clear link with the interests of

the organisations. Consequently, both sides represented by the

lay assessors could be said to have a common interest opposed to the

applicant's claim.

In the present case, the dispute before the Labour Court was

of a different nature. It was whether the company had violated the

collective agreement by failing to pay holiday salaries and certain

fees under the agreement and by failing to negotiate, and on

that ground was liable to pay damages. The nature of this dispute is

such that none of the organisations, LO or SAF, could objectively have

any other interest than to see to it that the agreements which had

been concluded were respected and correctly interpreted. This

interest cannot be contrary to that of the applicants.

The applicants argue that they could fear that the lay

assessors nominated by LO would be favourable to the claims made by

the Workers' Union whereas the applicants could not be said to have

correspondingly favourable lay assessors on the Court because they were

not affiliated to SAF but to FFSO and FAF, which were in conflict with

SAF.

The Commission notes the applicants' argument that they could

fear that the lay assessors nominated by LO would be favourable to the

claims made by the Workers' Union whereas the applicants could not be

said to have a correspondingly favourable lay assessor on the Court

because they were not affiliated to SAF but to FFSO and FAF which were

in conflict with SAF.

The Commission is, however, not persuaded by the argument that

the conflict between SAF, on the one hand, and FFSO and FAF, on the

other hand, would as such imply that the lay assessor nominated by SAF

had a common interest with the lay assessor nominated by LO or an

interest contrary to those of the applicants in the determination of

the particular dispute before the Labour Court.

To accept the applicants' remaining argument would, in the

Commission's opinion, be tantamount to considering that, in cases

where the lay assessors have been nominated by LO and SAF, the Labour

Court would fail to meet the condition "independent and impartial

tribunal" in all disputes where only one of the parties is affiliated

to LO or SAF. Although this issue was not addressed in the Langborger

judgment, the Commission considers that it would be contrary to the

considerations underlying the statement by the Europan Court in para.

34 (see quotation above) of the Langborger judgment to accept such a

proposition.

In sum, the Commission considers that, contrary to the

situation in the Langborger case, there cannot be said to have existed

any common interest between the lay assessors in the present case. The

applicants invoke elements which in their view cast some doubt on the

independence and impartiality of the lay assessors. The Commission is

nevertheless of the opinion that it cannot be held that the applicants

could legitimately fear that the lay assessors had interests contrary

to those of the applicants or that the balance of interests was upset

to such an extent that they did not satisfy the conditions of

independence and impartiality.

The Commission finds no other indication of a violation of

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

It follows that this part of the application is manifestly

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

Convention.

4. The applicants' allegation of a violation of Articles 11

(Art. 11), 14 (Art. 14) and 17 (Art. 17) of the Convention is largely

based on the same grounds as those examined above under Article 6

para. 1 (Art. 6-1) of the Convention.

The Commission finds no indication of a violation of these

provisions. It follows that in this respect the application is also

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

(Art. 27-2) of the Convention.

5. The Commission finds that the complaint based on Article 1 of

Protocol No. 1 (P1-1) of the Convention is also manifestly ill-founded

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

6. Finally, the applicants allege a violation of Article 13

(Art. 13) of the Convention.

Article 13 (Art. 13) requires a remedy in domestic law only in

respect of a claim of a violation which can be regarded as "arguable"

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

Series A no. 131, p. 23, para. 52). Having found above that the

applicants' claims of violations of the Convention are manifestly

ill-founded, the Commission similarly considers that the these claims

cannot be regarded as "arguable" for the purpose of Article 13

(Art. 13) of the Convention. Consequently, Article 13 (Art. 13) of the

Convention does not entitle the applicants to a remedy in domestic

law.

It follows that this part of the application is also 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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STALLARHOLMENS PLÅTSLAGERI O VENTILATION HANDELSBOLAG v. SWEDEN

STALLARHOLMENS PLÅTSLAGERI O VENTILATION HANDELSBOLAG v. SWEDEN