JOINT DISSENTING OPINION OF JUDGES GARLICKI AND BORREGO BORREGO

(Provisional translation)

We regret that we are unable to agree with the reasoning of the majority of the Chamber in the instant case. In our opinion, under the Court ' s case-law in this sphere there should have been a finding of a violation of the Convention for the following reasons:

1. As regards the objective test of impartiality within the meaning of Article 6 § 1, the Court has held that the test must enable it to be ascertained whether the judge concerned offered guarantees sufficient to exclude any legitimate doubt as to his or her impartiality. In this respect, even appearances may be of some importance. Accordingly, the decisive factor for determining in a given case whether there is a legitimate reason to fear that a particular judge lacks impartiality is whether this fear can be held to be objectively justified (see, among other authorities, Saraiva de Carvalho v. Portugal , judgment of 22 April 1994, Series A no. 286-B, § 35).

2. In the instant case, we consider that such fears could be held to be objectively justified for three fundamental reasons:

(a) The nature of the dispute

The litigation which the Labour Court was called upon to adjudicate was between an applicant company unaffiliated to any employers ' association and a trade union with only a small minority of the company ' s workforce (approximately 10%) on its books.

At the origin of the dispute was an attempt by the trade union to get the applicant company to sign up to a collective bargaining agreement between the employers associations and the trade unions active in that sector. The applicant company considered that it paid its workers higher wages than those payable under the collective bargaining agreement and refused to sign.

In our opinion, these factors clearly show that the dispute was between, on the one hand, an independent employer and, on the other, the employers associations and trade unions which had entered into the collective bargaining agreement (see paragraph 17 of the judgment).

(b) Procedural issues

Faced with the threat of a blockade, the applicant company suggested that the dispute be referred to the Stockholm District Court. The trade union argued that it was the Labour Court which had jurisdiction, as the first and only judicial instance. The District Court accepted the union ' s argument and relinquished jurisdiction in favour of the Labour Court .

Subsequently, the applicant company requested that the bench that would examine the case should be composed solely of professional judges, in accordance with domestic law, without the assistance of lay assessors representing employers ' and employees ' interests. The Labour Court turned down that request.

(c) The composition of the Labour Court

In our view, the fact that the Labour Court included four lay assessors, two of whom were appointed by the employers associations and two by the trade unions, who together formed a majority, raised objectively justified fears as to its impartiality.

This is because the balance which the usual composition of the Labour Court seeks to achieve between conflicting interest groups (employers and unions) proved totally unfair in the instant case, since the aim of the organisations represented in it was to secure the applicant company ' s signature to the collective bargaining agreement.

3. We agree with the Court ' s observation in paragraph 68 of the judgment that “to consider ... that, in cases where lay assessors have been nominated by any labour market organisation, the Labour Court would fail to meet the requirement of being an ' impartial tribunal ' in all disputes where one of the parties is not affiliated to such an organisation ... would be contrary to the considerations underlying the statement in § 34 of the Langborger judgment”. However, in our view, the present case is not representative, as what the applicant company objects to is the very principle of becoming a party to the collective bargaining agreement. One cannot rule out the possibility (since we are dealing with “appearances”) that all the organisations which have appointed lay assessors may be perceived as being in favour of affiliation. Consequently, it becomes difficult to distinguish the present application from the case of Langborger v. Sweden (judgment of 22 June 1989 , Series A no. 155, § 35). In that case, the Court noted that the lay assessors: “had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause”. In the instant case, there were both links with the system of collective bargaining agreements and an interest in it, as even the Government acknowledged: “the two lay assessors nominated by the LO and the SAF, respectively, could be said to have been linked to associations which were interested, generally speaking, in the system of collective agreements established by them on the labour market”.

This factor, combined with the question of the origin of the dispute and the trade union ' s insistence on referring it to a Labour Court largely composed of lay assessors, shows that the applicant company ' s fears were objectively justified.