Information Note on the Court’s case-law 68

October 2004

AB Kurt Kellermann v. Sweden - 41579/98

Judgment 26.10.2004 [Section IV]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Composition of a Labour Court including lay judges appointed by labour market organisations: no violation

Facts : The applicant company was not a member of any employers’ association. A trade union requested the company to ent er negotiations with a view to concluding a collective agreement. As the company refused, the trade union took industrial action and all work at the company was stopped during one day. In subsequent proceedings in the Labour Court, the applicant company ma intained that the industrial action had been aimed at forcing it to join an employers’ association, in violation of Article 11 of the Convention, which also guaranteed its right not to join an association. The union argued that the action had served the le gitimate aim of improving the employment situation for the union members employed by the company. In a judgment of February 1998, the Labour Court found in favour of the union, concluding that the industrial action had not violated the applicant company’s rights under Article 11. Despite the judgment, the company again refused to conclude a collective agreement, in view of which the union applied for a declaratory judgment to take allow it to further immediate industrial action against the company. In a new judgment of March 2003 the Labour Court granted the request. The Labour Court which delivered both the judgments in February and March 2003 was composed of seven judges, of whom four were lay assessors, two appointed by employers’ associations and two by employees’ associations. Following an unsuccessful appeal by the applicant company to the Supreme Court, the union proceeded with the industrial action. The company ended up joining the association and being bound by a collective agreement. Some months lat er, due to declining profitability, the company went into voluntary liquidation.

Law : Article 6 (impartial tribunal) – The lay assessors who were sitting in the Labour Court appeared in principle to be experts in the field and thus qualified to adjudicate on the labour dispute in question. The decisive question was whether the balance of interests in the composition of the Labour Court had been upset to an extent which could affect the impartiality of this court. The dispute in the Labour Court had focused on whether the applicant’s negative freedom of association had been violated and on whether the terms of employment in the collective agreement proposed by the trade union were more favourable to the employees. Given the nature of the dispute, the role of the lay assessors could not objectively have been other than to examine these questions from the viewpoint of the principles in Article 11 of the Convention (which forms part of Swedish law). It was not conceivable that the lay assessors could have had in terests which were contrary to those of the applicant company. Moreover, the labour market organisations which had appointed the two lay assessors had no links with or direct interest in the dispute between the applicant company and the trade union, which differentiated this case from Langborger v. Sweden (judgment of 22 June 1989), in which the Court had found that the lay assessors did have such an interest. It could not be held that in all cases where lay assessors had been nominated by a labour market o rganisation and one of the parties in the dispute was not affiliated to any such organisation this would always imply that the composition of the Labour Court would fail to meet the “impartial tribunal” requirement. In conclusion, the applicant company cou ld not fear that the lay assessors had interests contrary to its own, and hence the balance of interest had not been upset to such an extent that the Labour Court fell short of meeting the impartiality requirement.

Conclusion : no violation (five votes to two).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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