AB Kurt Kellermann v. Sweden (dec.)

Information Note on the Court’s case-law 55

July 2003

AB Kurt Kellermann v. Sweden (dec.) - 41579/98

Decision 1.7.2003 [Section IV]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Composition of a Labour Court by a majority of lay judges – alleged lack of impartiality: admissible

The applicant is a company which was not a member of any employers’ association and thus not bound by any collective labour agreement. A trade union, to which two of its employees were affiliated, requested negotiations to conclude a collective agreement. The company refused, arguing that the terms of employment applied at the company were more favourable than those in the proposed collective agreement. The union gave the applicant formal notice that it would take industrial action and order the cessation of all work at the company unless an agreement was reached, as a result of which the applicant started proceedings in the District Court seeking to have the industrial action stopped and requested an interim order. The case was forwarded to the Labour Court. The applicant challenged the objective impartiality of the Labour Court as the lay judges composing it were representing employers’ and employees’ interests:  the claim was rejected on the grounds that the court was composed in accordance with the relevant legislation. The applicant also claimed that the industrial action violated its right to negative freedom of association under Article 11, but the Labour Court considered that the rationale behind the union’s action was not to force the applicant to join the employers’ association but to conclude a collective agreement. Despite the judgment, the applicant continued to refuse to conclude an agreement, and the union obtained a declaratory judgment establishing its right to take immediate industrial action. Following an unsuccessful appeal by the applicant to the Supreme Court, action against the company was taken and the latter ended up joining an association and being bound by a collective agreement. Following the friendly settlement between the applicant and the union, the industrial action was immediately withdrawn and the case struck out of the Labour Court’s list. Some months later, due to declining profitability, the company filed for bankruptcy.

Inadmissible under Article 11: It could not be maintained that the industrial action taken by the trade union against the applicant limited the latter’s negative freedom of association, since the applicant could have avoided joining an association by agreeing to sign the collective agreement. The industrial action pursued a legitimate aim and given the wide margin of appreciation in this area the lack of intervention by the Swedish authorities against the industrial action did not affect the applicant’s negative freedom of association. The circumstances of the case did not give rise to a positive obligation for the State: manifestly ill-founded.

Admissible under Article 6 § 1.

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This summary by the Registry does not bind the Court.

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