13 January 2010

THIRD SECTION

Application no. 27921/07 by SOLECTRON TRADE UNION against Romania lodged on 13 June 2007

STATEMENT OF FACTS

THE FACTS

The applicant is a trade union from Timi ş oara which was registered in the Register of Legal Entities kept by the Timi ş oara Court of First Instance . Its name in Romanian is Sindicatul Liber “Solectron” . The application was lodged on its behalf by Mr Lucian- Ioan Malea , the leader of the trade union .

A. The circumstances of the case

The facts of the case, as submitted by the applicant trade union , may be summarised as follows.

The applicant is an independent trade union set up within the SC Solectron S.R.L. company (“the company”) and affiliated to a branch-representative trade union organisation.

On 10 April 2006 the applicant trade union lodged an application with the Timi ÅŸ oara Court of First Instance seeking recognition of its right of representati on at company level.

On 26 April 2006 the Timi ş oara Court of First Instance dismissed that request. The court then gave a grammatical interpretation of the relevant legal provisions and concluded that Article 18 § 3 of Law no. 143/1997 had introduced an additional criterion for representation to those provided for in Article 17 § 1 (c) of Law no. 130/1996 (see Relevant domestic law, below), not an alternative one. That interpretation was in keeping with a decision of 19 January 2000 of the High Court of Cassation and Justice. The court acknowledged that the applicant trade union had legal status and was affiliated to a branch-representative trade union organisation. However, since it only had eighty members out of 2,234 company employees, the court ruled that the applicant trade union had not satisfied all three cumulative criteria required for representation.

The applicant trade union appealed, arguing that Article 18 § 3 had laid down two alternative requirements for representation.

On 22 January 2007 the Sibiu County Court , by a final decision, dismissed that appeal, considering the interpretation given by the lower court as being logical and grammatically correct. Had it been the legislator ’ s intention to consider affiliation to a branch-representative trade union organisation as being an alternative condition, it would have employed a disjunctive conjunction such as “or”, and not used the wording “and also if” ( precum şi ).

B. R elevant domestic law

Article 17 § 1 (c) of Law no. 130 of 16 October 1996 on collective labour agreement s provides that, in negotiations regarding collective labour agreements, at company level, shall be attended by a trade union organisation which meets cumulatively the following two conditions: has legal status as a trade union organisation and its membership represents at least one third of the total number of employees.

Law no. 143 of 24 July 1997 supplemented Law no. 130/1996. Among others, it introduced Article 18 § 3, which reads as follows:

“Trade union organisations within a company are representative if they comply with the conditions laid down in Article 17 § 1 (c) , and also if are affiliated to a branch- representative trade union organisation .”

On 21 January 2008 the plenary of the High Court of Cassation and Justice delivered a judgment expressing a unitary interpretation and application of the law ( recurs î n interesul legii ). The General Prosecutor requested the High Court to rule on the interpretation and application of Article s 17 § 1 (c) and 18 § 3 of Law no. 130/1996 republished, in respect of the criteria required by a trade union to gain representation at company level. The High Court acknowledged that courts had no unitary approach as regards the application of those legal provisions, since some of them had considered that the conditions set out in Articles 17 § 1 (c) and 18 § 3 were cumulative, whereas others had deemed them to be alternative. The High Court ruled that only the latter had rightly interpreted and applied the law, since the very meaning of the wording “and also if” ( precum şi ) was an alternative condition. It further considered that the legislator ’ s intention was to grant representation at company level to a trade union despite the fact that it did not have the number of employees required under Article 17 § 1 (c) , and thus to allow the trade union to participate in collective bargaining with the employer. The Constitutional Court adopted the same view in a decision of 18 April 2000.

COMPLAINTS

The applicant trade union complained under Article 6 § 1 of the Convention that the proceedings had been unfair and had lasted too long .

The applicant trade union complained under Article 11 of the Convention that , in spite of the fact that it was affiliated to a branch-representative trade union organisation, the domestic courts had denied it the right to represent its members at company level and thus to defend their rights and interests .

QUESTION S TO THE PARTIES

Has there been an interference with the applicant ’ s freedom of association, within the meaning of Article 11 § 1 of the Convention (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 154 , 12 November 2008 ) ?

If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?

The Governm ent are invited to submit a copy of judgment no. 151 of 19 January 2000 of the High Court of Cassation and Justice, referred to in the judgment of 26 April 2006 of the TimiÅŸoara Court of First Instance .