4 December 2008

FIFTH SECTION

Application no. 5044/04 by S voboden z h eleznicharski s indikat “ P romyana ” against Bulgaria lodged on 30 January 2004

STATEMENT OF FACTS

THE FACTS

The applicant, Svoboden z h eleznicharski s indikat “ Promyana ” , is a trade union having its head office in Plovdiv , Bulgaria . It is represented before the Court by Mr V. Kaludin , a lawyer practising in Sofia .

A. The circumstances of the case

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

The applicant union is open to employees of the State ‑ owned National Company “Railway Infrastructure” EAD. At the material time it was one of the seven unions operating in this company.

At a meeting held on 26 September 2002 between the company ’ s management and representatives of the seven unions it was agreed that one sole collective agreement would be negotiated and entered into. Four of the unions had already prepared a draft. The management therefore invited all unions to declare in writing that they wished to enter into one sole collective agreement, with a view to deciding whether or not to call a general meeting of staff to approve a common collective agreement.

It seems that despite its insistence the applicant union, as well as two other unions, were subsequently not allowed to take part in the negotiations. The draft put forward by four other unions was approved by a general meeting of staff held on 20 November 2002.

On 28 May 2003 the company entered into a collective agreement with four unions. According to the agreement, employees who were not members of these unions could adhere to it by making a request in writing and agreeing to pay a monthly fee of 0.7 per cent of their salary (the proceeds to be collected by the company and used for social payments to employees in need).

On 6 December 2002 the applicant union issued proceedings against the company, seeking a declaration that the collective agreement adopted at the general meeting of staff was contrary to the Labour Code and that the resolution for its adoption was unlawful. In a decision of 12 December 2002 the Sofia District Court discontinued the proceedings. Upon an appeal by the applicant union, on 17 April 2003 the Sofia City Court upheld this decision. In a final decision of 7 August 2003 the Supreme Court of Cassation also upheld the discontinuation. It ruled that a trade union which had not taken part in a meeting for the adoption of a collective agreement could not ask for the invalidation of the resolution approving such agreement. The Labour Code allowed solely the parties to an agreement to request its annulment or seek its performance.

B. Relevant domestic law

Collective agreements are governed by Articles 50 ‑ 60 of the 1986 Labour Code.

Article 51 § 2 provides that only one collective agreement may exist between the employer and the employees of a particular undertaking. The proposal for such an agreement must emanate from the staff ’ s trade union. If there are several unions, they must present a common draft (Article 51a § 2). If they are unable to agree on one, the employer enters into an agreement with the union whose draft has been approved by a majority of the general meeting of staff (Article 51a § 3).

By Article 52 § 1 (1), employers are under a duty to negotiate with the representatives of the staff with a view to entering into a collective agreement. Their failure to do so may attract liability in damages (Article 52 § 2).

A collective agreement is binding only upon employees who are members of a union which is party to it (Article 57 § 1). Those who are not members of such a union may adhere to the agreement by making a request in writing, under conditions set by the parties to the agreement, provided that these conditions do not run counter to the law or good morals (Article 57 § 2).

The parties to the agreement or any employee to whom it applies may issue proceedings to seek its performance or its annulment (Articles 59 and 60).

COMPLAINTS

1. The applicant union complains under Article 11 of the Convention that the National Company “Railway Infrastructure” EAD refused to enter into a collective agreement with it and that under Bulgarian law, as construed by the courts, it is not possible to compel it to do so.

2. The applicant union complains under Article 14 of the Convention that the refusal was discriminatory.

QUESTIONS TO THE PARTIES

1. Did the company ’ s refusal to enter into a collective agreement with the applicant union amount to an interferenc e with its rights under Article 11 of the Convention (see, mutatis mutandis , Demir and Baykara v. Turkey [GC], no. 34503/97 , §§ 154 and 155, 12 November 2008 )? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?

2. Did the applicant union suffer discrimination in the enjoyment of its rights under Article 11, contrary to Article 14 of the Convention? In particular, were the grounds on which the company refused to enter into a collective agreement with it discriminatory?