SECOND SECTION
CASE OF HOPPEN AND TRADE UNION OF AB AMBER GRID EMPLOYEES v. LITHUANIA
(Application no. 976/20)
JUDGMENT
Art 14 (+ Art 11) • Legal framework and judicial review providing adequate safeguards against discriminatory dismissal of trade union leader on grounds of character, behaviour or working relationships • Dismissal on such grounds not inherently contravening the rights of trade unions and their members • Art 11 not prohibiting dismissal of a member or leader of a trade union without the union’s consent • Applicants’ failure to establish a prima facie case of discrimination on grounds of trade-union membership • Shortcomings of the proceedings before the State Labour Inspectorate remedied by thorough review before administrative and civil courts • Applicants given adequate opportunity to present their case
STRASBOURG
17 January 2023
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Hoppen and trade union of AB Amber Grid employees v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Arnfinn Bårdsen, President,
Jovan Ilievski,
Egidijus Kūris,
Pauliine Koskelo,
Lorraine Schembri Orland,
Diana Sârcu,
Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 976/20) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Haroldas Hoppen (“the first applicant”), and the trade union of the employees of the company AB Amber Grid (“the second applicant” or “the applicant union”) on 24 December 2019;
the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning Article 6 § 1, Article 11 and Article 14 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 13 December 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicants’ complaint that the first applicant had been dismissed from his job at the company AB Amber Grid because of his role in the activities of the second applicant – the trade union of that company’s employees. Both applicants complained that the first applicant’s dismissal had violated their right to freedom of association, that it had been discriminatory and that their complaints had not been duly considered at the domestic level.
THE FACTS
2. The first applicant was born in 1968 and lives in Kaunas. The second applicant was established in 2017 and registered in Vilnius. The applicants were represented by Ms A. Paškevičiūtė, a lawyer practising in Kaunas.
3. The Government were represented by their Agent, Ms K. Bubnytė-Širmenė.
Background4. In 1993 the first applicant started working as an electrical engineer at the Kaunas National Gas Enterprise. In 1998 the latter was reorganised into a new concern, named AB Lietuvos dujos (Lithuanian gas), and the first applicant signed a new employment contract, which was amended on various later dates. In 2013 the company was reorganised again and AB Amber Grid (hereinafter also “the company”) was established as a spin-off to continue its activities. In August 2013 the first applicant was appointed the head of the department that was in charge of protecting gas pipelines from corrosion.
5. On an unspecified date AB Amber Grid and its employees concluded a collective agreement, which was set to expire on 1 January 2018.
6. In October 2016 the general assembly of the company’s employees established a work council, a body for collectively representing the employees in their relations with the employer. In November 2016 the first applicant was elected one of the fifteen members of the work council and one of four representatives of the employees to take part in collective bargaining, with the aim of reaching a new collective agreement. The collective bargaining process began later that same month and continued into the year 2017.
7. On 14 September 2016 the new Labour Code was adopted; it was scheduled to enter into force on 1 July 2017. It provided that the right to take part in collective bargaining was the exclusive right of trade unions (see paragraphs 108 and 109 below).
8. On 23 June 2017, in a meeting in which 113 employees of the company participated, it was decided to establish a trade union – the second applicant. The first applicant was one of fifteen persons elected to its board. The company’s management was notified of the establishment of the applicant union and the composition of its board.
9. In July and August 2017, the company and the applicant union each delegated four persons to represent them in the collective bargaining. The first applicant was among those delegated to represent the applicant union. The first meeting between the representatives of the two sides took place on 21 August 2017.
10. According to the applicants, on 24 August 2017 a representative of the company orally suggested to the first applicant that he should leave his job, without giving any reasons for that suggestion. The first applicant asked that the proposal be presented to him in writing.
11. On 28 August 2017 the first applicant received a written proposal from the company that he leave his job by mutual consent of the parties (see paragraph 102 below), with severance pay amounting to nine times his monthly salary. He rejected the proposal.
12. On 3 October 2017, at a meeting of the applicant union’s board, the first applicant was elected the deputy head of the union.
13. On 14 November 2017 the company notified the first applicant that, in accordance with Article 168 § 3 of the Labour Code (see paragraph 111 below), it would seek the consent of the State Labour Inspectorate (hereinafter “the SLI”) to dismiss him “at the employer’s will” (darbdavio valia), with severance pay amounting to six times his monthly salary, as provided in Article 59 of the Labour Code (see paragraph 107 below).
14. While the collective bargaining was ongoing, the applicant union asked the company to extend the validity of certain provisions of the previous collective agreement (see paragraph 5 above), and the company agreed to do so. On 10 August 2018 the company and the applicant union signed a new collective agreement.
15. The first applicant was dismissed on 26 June 2019 (see paragraph 59 below).
Administrative proceedingsProcedure before the SLIThe company’s request16. On 14 November 2017 AB Amber Grid lodged a request with the SLI, asking for its consent to the dismissal of the first applicant. It emphasised that the first applicant occupied a managerial position, which involved, inter alia, responsibilities relating to the distribution and use of the company’s financial resources, continuous cooperation with other departments, the supervision of employees in subordinate positions and the oversight of various projects that were planned or were being carried out. However, the first applicant was failing to properly fulfil his duties.
17. Firstly, AB Amber Grid submitted that the first applicant did not work well within a team and that he unilaterally made decisions that required coordination with other departments. Secondly, he failed to follow orders given by his supervisors, ignored their feedback and did not attempt to improve the quality of his work. Thirdly, he often failed to complete his tasks on time and did not implement the planned strategic plans or implemented them improperly, which led to the risk that the company might sustain losses.
18. The company provided several examples of situations in which the first applicant had delayed carrying out certain tasks, disregarded recommendations given by his supervisors and failed to appear in inter-departmental meetings, or where complaints about his attitude and behaviour had been received from the company’s contractors. In support of its assertions, the company provided copies of email correspondence between the first applicant and his supervisor dating from March 2015 and July-September 2017.
19. Accordingly, AB Amber Grid submitted that the first applicant was not suitable for the position that he held and that it would be against the company’s interests to keep him in his job. Although he was a recognised professional in his field, the aforementioned factors justified dismissing him. The company emphasised that, as demonstrated by the information provided in its request, its wish to dismiss the first applicant was based on objective reasons and was not related to his role in representing the company’s employees or to his membership in the applicant union.
The applicants’ responses to the company’s request20. On 20 November 2017 the SLI notified both applicants of the request lodged by the company and asked them to provide their opinions within five working days (see paragraph 111 below). The applicants asked the SLI to extend the time-limit but their request was refused. Both applicants submitted their opinions, in which they asked the SLI not to grant the company’s request.
21. The first applicant contended that the real reason why the company wished to dismiss him was his role in representing employees. He had been active in collective bargaining since November 2016, first as a member of the work council and later as a member of the applicant union, and had participated in numerous meetings with the company’s representatives. The collective bargaining had been difficult and there had been several points of contention between the representatives of employees and those of the company. The first applicant argued that official notice of the intention to dismiss him had been given in the midst of the collective bargaining in an effort to put pressure on the other members of the applicant union.
22. Furthermore, the first applicant stated that he had worked at the company for twenty-four years, during which time he had not been subjected to any disciplinary penalties but had rather been constantly commended and had undergone training to continue improving his qualifications. In 2015 and 2016 an external audit had assessed the performance of the managers within the company, including their skills of strategic thinking, leadership, efficiency, responsibility, team spirit, cooperation and communication. Of a maximum possible score of 7, the first applicant had been awarded 5.96 in 2015 and 6.15 in 2016. Moreover, an internal audit conducted in 2015 and 2016 had not found any important shortcomings in his and his department’s work. Therefore, the fact that after becoming a representative of the employees he had suddenly become unsuitable for his job and had to be dismissed indicated that the real reason for the intended dismissal was his role in the collective bargaining process.
23. The first applicant also submitted that, under the Law on Trade Unions, an employer could not dismiss an employee who was a member of a trade union’s governing body without that trade union’s consent (see paragraph 115 below); however, in his case, the company had not requested such consent.
24. Moreover, the first applicant argued that he could not be dismissed under Article 59 of the Labour Code because that provision did not apply to companies that were owned by the State (see paragraph 107 below). He submitted that AB Amber Grid fell within the latter category, since the State held over 96% of its shares.
25. Lastly, he disputed the company’s allegations regarding the quality of his work (see paragraph 17 above). He commented on the examples provided by AB Amber Grid of situations in which he had allegedly failed to properly carry out certain tasks (see paragraph 18 above), challenging the company’s version of the facts, giving additional explanations for his actions and pointing out that the company had in fact awarded bonuses to employees for the completion of some of the tasks which had allegedly been carried out improperly.
26. The second applicant also disputed the company’s allegations about the quality of the first applicant’s work. It provided various additional facts which, in its view, testified to the fact that, in respect of the above-mentioned examples given by the company, the first applicant had in fact carried out those tasks within the respective time-limits and that his decisions had been based on sound reasons. The second applicant submitted written statements given by several employees of the company (the first applicant’s subordinates and the heads of several other departments) in which those employees described their positive experience of working with the first applicant.
27. The second applicant further stated that during his entire time of working in the company, the first applicant had never been disciplined or asked to explain the allegedly inadequate quality of his work. On the contrary, in 2013 AB Amber Grid had officially thanked him for his good work, and he had received regular bonuses for the good results achieved by the department that he had headed. The criticism of his work had started only during the process of collective bargaining, in which he had actively participated; that fact clearly indicated that the reason for the intended dismissal was his role in the representation of employees.
Decision of the SLI28. On 11 December 2017 the SLI granted the company’s request and consented to the dismissal of the first applicant. It stated that, according to the case-law of the Supreme Court, the role of the SLI was limited to assessing whether the employer’s intention to dismiss the employee was related to the latter’s activity and membership in the trade union, but that it was not for the SLI to assess whether the grounds for dismissal provided by the employer were in accordance with the law or whether they were well founded (see paragraphs 126 and 127 below).
29. The SLI stated that, having analysed the company’s request and the applicants’ responses, it found no grounds to believe that the wish of AB Amber Grid to dismiss the first applicant was in any way related to his trade union activities. Statements of a general nature, pointing to an employee’s role in the trade union, were not sufficient to find that the employee’s dismissal was related to such activities. The SLI stated that the first applicant’s arguments had been based solely on his own subjective perceptions and that neither of the applicants had presented any evidence that would lead the SLI to believe that the first applicant had been discriminated against on the grounds of his membership in the applicant union.
30. The decision of the SLI was sent to AB Amber Grid but not to the applicants; the latter stated that the first applicant had obtained it on his own initiative, after contacting the SLI.
First set of proceedings before the administrative courtsThe parties’ submissions31. The first applicant lodged a complaint with the Vilnius Regional Administrative Court against the SLI, asking that the latter’s decision be quashed.
32. He firstly submitted that the SLI was not authorised by law to consent to the dismissal of an employee who was a member of a trade union’s governing body. He referred to Article 50 of the Constitution (see paragraph 95 below) and the case-law of the Constitutional Court, which emphasised the importance of trade unions’ autonomy and independence from the State (see paragraph 123 below). He also pointed out that Article 21§ 1 of the Law on Trade Unions explicitly provided that the consent of a trade union was necessary in order for an employer to dismiss an employee who was a member of a trade union’s governing body (see paragraph 115 below). He contended that the Labour Code, which had entered into force on 1 July 2017, had not repealed the Law on Trade Unions. As a result, there was a conflict between Article 21 § 1 of that Law and Article 168 § 3 of the Labour Code, which obliged an employer to obtain the consent of the SLI before dismissing a member of a trade union. The first applicant argued that the Law on Trade Unions should be applied, as it was lex specialis. Accordingly, both AB Amber Grid and the SLI had acted contrary to the law – the former by failing to seek the consent of the applicant union and the latter by granting consent to the company.
33. Secondly, the first applicant disputed the conclusion reached by the SLI that there had been no evidence demonstrating that the wish of AB Amber Grid to dismiss him had been related to his trade union activities. He submitted that, in accordance with the Constitutional Court’s case-law, an unfounded dismissal of a member of a trade union in and of itself amounted to discrimination (see paragraph 122 below). He argued that he had refuted all the arguments that the company had provided to justify his dismissal but that the SLI had not assessed any of the relevant facts and evidence that he had submitted (see paragraphs 21, 22 and 25 above).
34. Thirdly, he submitted that the burden was on the employer to prove that keeping the employee in his job would violate the very essence of the employer’s interests (see paragraph 127 below), but that AB Amber Grid had failed to do so. He submitted that without examining, at least to some extent, the reasons provided by the employer for the dismissal, it could not be determined whether the dismissal was related to the employee’s trade union activities (see paragraph 127 below). He also provided detailed submissions addressing the company’s allegations that he had improperly fulfilled his duties (see paragraphs 17 and 18 above) and submitted various supporting documents, including those that had been submitted to the SLI by the second applicant (see paragraph 26 above).
35. Lastly, the first applicant argued that AB Amber Grid could not dismiss employees under Article 59 of the Labour Code because the majority of its shares were held by the State (see paragraph 24 above). He also submitted that, under the law, he was considered to be the equivalent of a civil servant and had an obligation to declare any potential conflicts of interest, which further testified to the fact that AB Amber Grid was a State-owned company.
36. During the hearing before the Vilnius Regional Administrative Court, the first applicant also submitted that AB Amber Grid had recently decided to change its corporate structure and to eliminate his department, as well as the department of the head of the applicant union (see paragraph 93 below). He considered that that constituted further proof of discrimination against the trade union and its members.
37. The SLI disputed the first applicant’s complaint. It submitted that it had assessed all the information that had been provided to it and had found no grounds to believe that the company’s intention to dismiss the first applicant was related to his trade union activities.
38. AB Amber Grid participated in the proceedings as a third party and disputed the first applicant’s complaint. It submitted that the legal basis for the dismissal was Article 59 of the Labour Code, namely – it was sought to dismiss the first applicant at the employer’s will, in view of his character, his behaviour at work, his attitude towards the company’s culture and his relations with his colleagues. It was therefore immaterial whether he had committed any disciplinary violations. The company also submitted that it was not an enterprise established from the State budget but rather a joint-stock company, the majority of whose shares were owned by the State. Thus, it argued that it had the right to dismiss employees under Article 59 of the Labour Code.
39. The second applicant, which also participated in the proceedings as a third party, supported the first applicant’s complaint. It submitted, in particular, that the dismissal of a trade union’s board member was sufficient to establish a prima facie case of discrimination; therefore, in accordance with the Law on Equal Opportunities, the burden was on the employer to refute the alleged discrimination (see paragraph 117 below).
40. The second applicant further submitted that by seeking to dismiss the first applicant AB Amber Grid had likely sought to put pressure on other members of the applicant union. Two members had since quit their jobs and one had resigned from his position as the deputy head of the applicant union and had withdrawn from the collective bargaining process. The applicant union contended that such staff turnover was unusual in the company and that it reflected the company’s discriminatory attitude towards the applicant union and its members.
Decision of the Vilnius Regional Administrative Court41. On 11 June 2018 the Vilnius Regional Administrative Court allowed the first applicant’s complaint and quashed the decision of the SLI. The court held that the SLI’s decision had been insufficiently reasoned because it had not addressed any of the factual circumstances or supporting documents provided by the first applicant. Moreover, the court upheld the arguments raised by the first applicant to the effect that AB Amber Grid had had to obtain the consent of the applicant union in order to be able to dismiss him (see paragraph 32 above) and that it was a State-owned company, which meant that it could not dismiss employees under Article 59 of the Labour Code (see paragraph 35 above).
Decision of the Supreme Administrative Court42. AB Amber Grid and the SLI lodged appeals against the decision of the Vilnius Regional Administrative Court in which they submitted essentially the same arguments as those that they had raised in their previous submissions (see paragraphs 37 and 38 above).
43. On 19 December 2018 the Supreme Administrative Court allowed the appeals in part, quashed the lower court’s decision and remitted the case for fresh examination. It held that, in accordance with Article 168 § 3 of the Labour Code and the relevant case-law (see paragraphs 111 and 126-131 below), the role of the SLI was limited to examining whether the employee’s trade union activity had been the decisive factor in the employer’s decision to dismiss him or her. What the SLI had to assess was whether the employer’s request had contained relevant reasons that were unrelated to the employee’s trade union activities, whereas the question of whether the dismissal had been lawful and justified could only be assessed after the employee had actually been dismissed and had lodged a complaint against the dismissal with the courts of general jurisdiction. Therefore, the SLI had not been required to carry out an in-depth examination of the arguments contained in the company’s request relating to the quality of the first applicant’s work.
44. The Supreme Administrative Court further held that the subject matter of the case was limited to determining whether the SLI’s decision to consent to the first applicant’s dismissal had been justified. It was not within the remit of the SLI to examine compliance with the Law on Trade Unions or to assess the applicability of Article 59 of the Labour Code to AB Amber Grid. Therefore, those questions fell outside the scope of the administrative proceedings.
Second set of proceedings before the administrative courtsDecision of the Vilnius Regional Administrative Court45. On 18 April 2019 the Vilnius Regional Administrative Court, after fresh examination, dismissed the first applicant’s complaint.
46. The court observed that the first applicant had not been the only employee of the company to have been active in the collective bargaining process. Decisions made by the applicant union were adopted collectively; therefore, his dismissal would not affect collective bargaining. The court considered that neither the fact that the first applicant had participated in trade union activities nor the fact that the notice of dismissal had been presented to him while the collective bargaining had been ongoing sufficed to conclude that the company’s wish to dismiss him had been related to those activities. The court also rejected the first applicant’s argument that criticism of his work had begun only after he had become active in the applicant union – the case-file material showed that his allegedly inappropriate communication style had been criticised by certain contractors in 2015 and 2016. In the court’s view, the positive opinion that some of the first applicant’s colleagues had of him (see paragraph 26 above) did not serve to refute the company’s allegations concerning his lack of cooperation and his unilateral decision-making style. Lastly, the fact that two other members of the applicant union had left their jobs in 2017 (see paragraph 40 above) did not, in and of itself, constitute proof of discrimination, as people could leave their jobs for many different reasons, and the first applicant had failed to present any evidence that the decisions taken by those employees had been somehow related to their membership in the applicant union.
47. Accordingly, the Vilnius Regional Administrative Court concluded that the SLI had properly assessed the relevant evidence and had reached a well-founded conclusion that the wish of AB Amber Grid to dismiss the first applicant had not been related to his trade union activities. It agreed with the assessment of the SLI that general statements regarding the first applicant’s active role in trade union activities did not suffice to demonstrate that the intention to dismiss him was related to those activities and that his allegations were based on his subjective perceptions, rather than any objective evidence.
The parties’ submissions in the appellate proceedings48. The first applicant lodged an appeal against the above-noted decision. He submitted that, according to the annual report of the SLI, which was publicly available, between July 2017 and June 2018 it had received thirty requests from employers seeking to dismiss employees who were members of trade unions and had granted all of them. This indicated that the SLI was biased in favour of employers. Moreover, the first applicant argued that the SLI was unable to properly assess whether an intention to dismiss an employee was based on discriminatory grounds; he noted that during the hearing before the first-instance court, its representative had acknowledged that the SLI did not have any methodology for assessing what the real reasons were for an intended dismissal and had been unable to indicate what the first applicant should have provided in order to prove that his employer’s request had been based on discriminatory motives.
49. He further submitted that, in accordance with the relevant law, once the claimant provided prima facie evidence that he or she had been discriminated against, the burden shifted onto the defendant to prove that there had been no discrimination (see paragraph 117 below). Moreover, he contended that Article 168 § 3 of the Labour Code (see paragraph 111 below) enshrined the presumption that in the event that an employee, elected by other employees to represent them, was dismissed during the period of such representation, the dismissal constituted discrimination. That presumption was in line with the Constitutional Court’s case-law (see paragraph 122 below). Thus, the burden was on the employer to show that the employee’s involvement in the representation of employees was merely formal or passive, or that the dismissal was unrelated to such involvement. The law did not require either the employee or the trade union to present indisputable evidence proving discrimination. Accordingly, the first applicant argued that the Vilnius Regional Administrative Court had breached the rules on the distribution of the burden of proof because it had required him to provide evidence demonstrating that the wish of AB Amber Grid to dismiss him had been related to his trade union activities.
50. He also pointed out that, during the hearing before the first-instance court, the head of the applicant union had testified that six members of the union had left their jobs by mutual consent of the parties because the conditions of their work had gradually worsened and they had not wished to institute court proceedings against the company. The first applicant argued that AB Amber Grid sought to create an atmosphere of fear, thus discouraging employees from getting involved in trade union activities. He submitted that, following the above-mentioned structural changes in the company (see paragraph 36 above), two other members of the applicant union had been demoted.
51. He once again disputed the company’s allegations regarding his work performance (see paragraphs 17, 18 and 25 above). He stated that he was not aware of any instance when AB Amber Grid had dismissed another person holding a similar position as him for reasons such as those for which his dismissal was sought. He contended that the company’s discriminatory attitude towards him was evident from a variety of actions – namely, in contrast to other employees holding similar positions, the first applicant had not been given a pay rise, had not been invited to participate in professional training and had not been provided with a suitable computer. Moreover, AB Amber Grid had started implementing structural changes within the company without waiting for the decision of the SLI to become final. As a result of those structural changes, the department that the first applicant had previously headed had been eliminated (see paragraph 93 below). He had been removed from any decision-making responsibilities, had ceased to be required to supervise employees and he no longer had his own office or a service car. Although he had asked the company to appoint him to a position that would be equivalent to that which he had held previously, his request had been refused.
52. Lastly, the first applicant asked the Supreme Administrative Court to apply to the Constitutional Court and ask it to examine whether Article 168 § 3 of the Labour Code was in line with Article 50 of the Constitution (see paragraph 95 below), inasmuch as it enabled the SLI – a State institution – to interfere with the activities of a trade union.
53. The SLI contested the first applicant’s appeal. In particular, it submitted that, according to the case-law of the Supreme Court, the Law on Equal Opportunities was not applicable in cases of alleged discrimination on the grounds of trade union activities (see paragraphs 128-130 below).
54. AB Amber Grid also disputed the first applicant’s appeal. While it accepted that it had to prove that its wish to dismiss the first applicant was not related to his trade union activities, it argued that it had satisfied that burden of proof. The fact that the first applicant had a different view of the factual circumstances indicated by the company did not suffice to demonstrate that he was being dismissed because of his role in the trade union. AB Amber Grid also submitted that decisions taken by the SLI in other cases (see paragraph 48 above) were irrelevant because each case was decided on the basis of its specific circumstances. Furthermore, the company acknowledged that there was a conflict between Article 168 § 3 of the Labour Code and Article 21 § 1 of the Law on Trade Unions; however, that did not mean that either of those provisions was contrary to the Constitution.
55. The second applicant supported the first applicant’s appeal and argued that the company’s various actions (see paragraphs 50 and 51 above) had demonstrated its discriminatory attitude towards the first applicant, the applicant union and its members. It also contended that, when regulating matters relating to trade unions, the Labour Code gave primacy to legal instruments that were specifically designed to regulate such matters (see paragraph 112 below), which meant that Article 21 § 1 of the Law on Trade Unions had to be applied and that the first applicant could not be dismissed without the applicant union’s consent.
Decision of the Supreme Administrative Court56. On 26 June 2019 the Supreme Administrative Court upheld the decision of the lower court.
57. It refused the first applicant’s request that it ask the Constitutional Court to examine whether Article 168 § 3 of the Labour Code was in line with Article 50 of the Constitution. It observed that labour relations were generally governed by private law and that the involvement of a public authority in questions relating to such matters might appear excessive. However, in the court’s view, the involvement of the SLI was justified by the need to ensure that employees’ representatives be protected from hostile actions on the part of their employers. Accordingly, the court stated that it had no reasons to doubt that Article 168 § 3 of the Labour Code complied with the Constitution.
58. The Supreme Administrative Court endorsed the findings of the lower court that there were no grounds to believe that the wish of AB Amber Grid to dismiss the first applicant was related to his trade union activities (see paragraph 46 above). It stated that it would not address the first applicant’s arguments regarding the justification for his dismissal because that question fell outside the scope of the administrative proceedings. Lastly, the court held that it had not been demonstrated that the SLI had been biased when adopting the impugned decision and that the data provided by the first applicant regarding its decisions in other cases (see paragraph 48 above) was irrelevant.
Civil proceedingsProceedings before the Vilnius District CourtThe first applicant’s claim59. On 26 June 2019 the first applicant was dismissed from his job at the employer’s will, in line with Article 59 of the Labour Code (see paragraph 107 below). He lodged a complaint about the dismissal with the State Labour Disputes Commission, but the latter rejected his complaint on 26 September 2019.
60. The first applicant then lodged a claim with the Vilnius District Court, arguing that the dismissal had been unlawful and unjustified and asking to be reinstated in his previous position or installed in a similar position. Similarly to his previous complaints, he argued that AB Amber Grid had been obliged to obtain the consent of the applicant union before dismissing him, since the Law on Trade Unions was lex specialis in relation to the Labour Code (see paragraph 32 above).
61. The first applicant further submitted that he had been dismissed on discriminatory grounds. He contended that all the circumstances that the company had cited when dismissing him (see paragraphs 17 and 18 above) had arisen within the short period of August-October 2017, except for one which had arisen in 2015; regardless, he had worked at the company for twenty-five years and had never been the subject of any negative remarks. He addressed in detail each of the company’s allegations regarding his decision-making style, his behaviour at work and his interactions with colleagues and contractors. He also pointed out that his performance had been appraised in a positive manner on several occasions (see paragraph 22 above). He further argued that the company’s discriminatory attitude towards him had also been demonstrated by several other sets of circumstances (see paragraph 51 above), including the fact that, following the changes to its corporate structure, his department had been eliminated and he had not been provided with a new position equivalent to that which he had held previously (see paragraph 93 below).
62. Lastly, the first applicant again contended that he could not have been dismissed on the grounds provided in Article 59 of the Labour Code because the majority of AB Amber Grid’s shares were held by the State (see paragraph 24 above).
The company’s response to the claim63. AB Amber Grid firstly submitted that it had the right to dismiss employees under Article 59 of the Labour Code. The applicability of that provision was determined by the legal status of a company – Article 59 provided that it was not applicable to State and municipal institutions, entities and enterprises, and public entities (see paragraph 107 below), but AB Amber Grid was a joint-stock company; therefore, it was not covered by that list, irrespective of who held the majority of its shares.
64. Secondly, AB Amber Grid submitted that it had not been required to obtain the applicant union’s consent in order to be able dismiss the first applicant. It stated that the first applicant’s arguments concerning the lawfulness of the SLI’s involvement in his dismissal had already been addressed in the administrative proceedings (see paragraph 57 above). Be that as it may, the company contended that, after the Labour Code had entered into force, other legal instruments could be applied only if they did not contradict the provisions of the Labour Code (see paragraph 113 below). Accordingly, Article 168 § 3 of the Labour Code had primacy over Article 21 § 1 of the Law on Trade Unions.
65. Thirdly, the company disputed the presence of any discriminatory motives in its decision to dismiss the first applicant. It contended that Article 59 of the Labour Code gave it certain discretion to dismiss an employee for reasons related to that employee’s personal characteristics and to his or her negative effect on the working environment, and that in such instances the employer was not required to demonstrate that the employee had failed to carry out his or her direct functions or had breached work regulations. AB Amber Grid submitted that it had provided detailed reasons for its considering that the first applicant was no longer able to continue working at the company (see paragraphs 17 and 18 above). Those reasons were not related to his trade union activities – that had been examined by the SLI and by the administrative courts, which had found no discrimination, and their decisions had become final.
66. In any event, AB Amber Grid submitted that the first applicant had not been the only active participant in the collective bargaining process, so it was unreasonable to claim that by dismissing him the company had sought to put pressure on the applicant union. Even though six other members of the applicant union’s board had since left their jobs, three of them had resigned on their own initiative and the other three had left by mutual consent of the parties, upon the proposal of the employee in question (see paragraphs 102 and 103 below). Thus, there was no proof that AB Amber Grid had taken any action to weaken the trade union. Irrespective of the first applicant’s dismissal and the resignation of other employees, the collective bargaining had continued and the collective agreement had eventually been signed. The company also disputed the first applicant’s allegations that he had not been invited to take part in professional training, had not been given a pay rise and had not been provided with the working equipment necessary for him to do his job properly (see paragraph 51 above). Accordingly, AB Amber Grid submitted that the first applicant had failed to establish a prima facie case of discrimination and that there was no reason to shift onto the employer the burden of proof in respect of refuting the alleged discrimination.
The second applicant’s submissions67. The second applicant provided written submissions in which it essentially raised the same arguments as those raised by the first applicant. It also contended that an unjustified dismissal of its board member amounted to discrimination against it and interference with its activities.
Decision of the Vilnius District Court68. On 6 January 2021 the Vilnius District Court dismissed the first applicant’s complaint.
69. It firstly noted that the dispute concerning the lawfulness of the SLI’s decision had already been resolved in the administrative proceedings. The decision taken by the Supreme Administrative Court in those proceedings had a res judicata effect and its findings could no longer be challenged.
70. The court also held that AB Amber Grid had not been required to obtain the applicant union’s consent in order to dismiss the first applicant. Article 168 § 3 of the Labour Code was applicable in all cases where an employer sought to dismiss an employee who was involved in the representation of employees, and it provided no exceptions for members of trade unions. In the administrative proceedings instituted by the first applicant, the Supreme Administrative Court had held that there were no grounds to doubt that Article 168 § 3 complied with the Constitution (see paragraph 57 above). The Vilnius District Court further observed that the first applicant had been dismissed at the employer’s will (Article 59 of the Labour Code) and not at the employer’s initiative, through no fault of the employee (darbdavio iniciatyva be darbuotojo kaltės) (Article 57 of the Labour Code), whereas Article 21 § 1 of the Law on Trade Unions provided that it was applicable in the latter instances (see paragraph 115 below), so there were no grounds to apply it in any event. The court also observed that the applicant union had been given an opportunity to provide its opinion to the SLI (see paragraph 20 above). Accordingly, it held that AB Amber Grid had complied with the relevant procedural rules when dismissing the first applicant.
71. Turning to Article 59 of the Labour Code, the court noted that, under that provision, an employee could be dismissed for reasons relating to his or her personality, behaviour at work, professional qualifications or the employer’s situation, among other things. The employer had certain discretion when deciding to dismiss an employee on such grounds; however, the reason for such a dismissal had to be real and not fictitious or invented, and it had to be lawful, sufficient to justify the dismissal, and not fall within the grounds listed in Article 57 § 1 or 59 § 2 of the Labour Code (see paragraphs 105 and 107 below). The court further stated:
“The employer’s right [to dismiss an employee] under Article 59 § 1 of the Labour Code does not mean that an employment contract may be terminated for any reason whatsoever. Under [that provision], an employee may be dismissed when some of his or her personal characteristics or inadequate behaviour at work lead the employer to conclude that, as a result, the employee is unable to properly fulfil his or her work functions. When dismissing an employee under Article 59 § 1 of the Labour Code, an employer must demonstrate that it has reason to dismiss the employee and that that reason is not of a discriminatory nature. The importance of the reason in such a case has no legal significance because such grounds for dismissal essentially relate to reasons of a subjective nature for the employer deciding that the employee in question is no longer suitable to work at the company.”
72. The court observed that AB Amber Grid had indicated the reasons for which it sought to dismiss the first applicant in the warning given to him on 14 November 2017 and in the request lodged with the SLI (see paragraphs 13-19 above). According to the case-law of the Supreme Court, an employee’s suitability for work had to be assessed not only in the light of the employee’s ability to carry out his or her work, but also the employee’s behaviour and his or her effect on the work environment or on the company’s image (see paragraph 124 below). The court considered that the available evidence, including testimony given by the first applicant’s supervisors, demonstrated that AB Amber Grid had had important reasons for dismissing him, relating to the first applicant’s inability to work in a team, his improper communication style, failure to follow his supervisors’ orders and reluctance to accept criticism of his work. The company had provided relevant examples of situations in which the first applicant had not properly carried out certain tasks, thus demonstrating that his behaviour had been inadequate and had not contributed to the successful functioning of the company. While AB Amber Grid had not disputed the first applicant’s professional expertise, it appeared that he lacked management and leadership skills. The mere fact that the first applicant disagreed with his employer’s interpretation of facts and gave his own version did not suffice to demonstrate that the dismissal had been unfounded. The court emphasised that it was within the company’s discretion to decide which employees were the most suitable to occupy managerial positions.
73. The court considered that the first applicant’s argument that he had worked at the company for a long time and had not received any disciplinary penalties or written reprimands had no legal significance. As demonstrated by the email correspondence provided by AB Amber Grid, the first applicant had been the subject of some criticism and negative remarks from his supervisors. In any event, dismissal under Article 59 of the Labour Code did not have to be based on disciplinary violations or lack of professional skills. The court also observed that the subsequent structural changes within the company (see paragraph 93 below) fell outside of the scope of the case because the first applicant had not been dismissed as a result of them. Nonetheless, the court observed that, even after his department had been eliminated, the first applicant had remained employed and had received a salary while the court proceedings had been pending.
74. The court further held that it had not been demonstrated that the dismissal had been based on discriminatory motives. The alleged discrimination against the first applicant on the grounds of his trade union activities had been addressed in the administrative proceedings, and the court would not examine that issue anew.
75. Lastly, the Vilnius District Court rejected the first applicant’s argument that AB Amber Grid – owing to the fact that it was owned by the State – could not rely on Article 59 of the Labour Code. It observed that AB Amber Grid was a joint-stock company and a for-profit entity. Its activities were not funded from the State budget but from its own revenues. Even accepting that the company was partly controlled by the State, given that over 96% of its shares were held by UAB EPSO-G, which was a State enterprise, that did not mean that AB Amber Grid was also a State enterprise. The court observed that the law distinguished between a State enterprise (valstybės įmonė) and a State-owned company (valstybės valdoma bendrovė – see paragraphs 118 and 119 below). Only the former category was excluded from the application of Article 59 of the Labour Code, and there were no grounds to interpret that legal provision in an expansive manner.
Proceedings before the Vilnius Regional CourtThe parties’ submissions in the appellate proceedings76. The first applicant lodged an appeal against the above-noted decision. In the appellate proceedings, the parties advanced essentially the same arguments as those that they had raised in their previous submissions.
77. In addition, the first applicant submitted that, at the time when he had been warned about the dismissal (see paragraph 13 above), the company’s collective agreement had provided that employees who had been elected as members of a body representing employees could not be dismissed under Article 129 of the Labour Code (see paragraph 98 below) without that body’s consent. He argued that even though the collective agreement referred to the old Labour Code, that agreement had to be read in accordance with its spirit and a trade union’s board member could not be dismissed without the board’s consent.
78. Moreover, the second applicant submitted that, from the day of its establishment until the present, the number of its members had fallen from 234 to 185, and six board members had left their jobs, which demonstrated that AB Amber Grid was seeking to put an end to the applicant union.
Decision of the Vilnius Regional Court79. On 22 April 2021 the Vilnius Regional Court dismissed the appeal lodged by the first applicant and upheld the lower court’s decision.
80. It referred to the relevant case-law of the Supreme Court (see paragraph 125 below) and held that AB Amber Grid had provided concrete reasons why it considered that the first applicant was not suitable for his job. The first-instance court had thoroughly assessed the reasons given by the company, it had heard many witnesses called by both parties and had given the first applicant adequate opportunities to question them. Several witnesses had testified that the first applicant’s character and communication style had created tension at work and had interfered with the company’s activity. Accordingly, the first-instance court had correctly concluded that AB Amber Grid had demonstrated that it had had sufficient reasons to dismiss the first applicant in accordance with Article 59 of the Labour Code.
81. As to the first applicant’s arguments regarding his alleged discrimination on the grounds of his trade union activities, the court referred to the Vilnius Regional Administrative Court’s decision of 18 April 2019 in which those same arguments had been addressed and dismissed (see paragraph 46 above). That decision had become final; therefore, there was no reason to assess the same circumstances anew.
82. The Vilnius Regional Court further held that AB Amber Grid had not been required to obtain the applicant union’s consent in order to dismiss the first applicant. It observed that Article 21 § 1 of the Law on Trade Unions and Article 168 § 3 of the Labour Code both sought essentially the same purpose, which was to protect employees’ representatives from being discriminated against by their employer. After the company had obtained the consent of the SLI, which had been examined by courts at two levels of jurisdiction, it would have been excessive to require that it also seek the consent of the applicant union. Accordingly, the court held that the company had not breached any procedural requirements.
83. Lastly, the Vilnius Regional Court upheld the lower court’s reasoning regarding the applicability of Article 59 of the Labour Code to AB Amber Grid (see paragraph 75 above).
Proceedings before the Supreme Court84. The first applicant lodged an appeal on points of law in which he submitted essentially the same arguments as those that he had raised in his previous submissions. However, on 28 July 2021 the Supreme Court refused to accept the appeal on points of law for examination on the grounds that it did not raise any important legal issues.
Proceedings before the Constitutional CourtFirst set of proceedingsThe applicants’ constitutional complaint85. On 11 October 2019 the applicants lodged a complaint with the Constitutional Court. They submitted that their rights had been breached by the decision of the SLI, which had been based on Articles 59 and 168 § 3 of the Labour Code. Accordingly, the applicants asked the Constitutional Court to examine whether those legal provisions complied with Article 50 of the Constitution (see paragraphs 95, 107 and 111 below).
86. With regard to Article 168 § 3, the applicants submitted that the legal regulation providing that, in the event of the dismissal of a member of a trade union, consent had to be given by the SLI but not by the trade union constituted a breach of the trade union’s autonomy and independence from the State, as guaranteed by the Constitution. They contended that the Law on Trade Unions, which required employers to seek the consent of the trade union before dismissing one of its members, was more in line with those principles. They also submitted that, in the event of a conflict between the Labour Code and the Law on Trade Unions, the latter should be considered to have primacy.
87. With regard to Article 59, the applicants submitted, inter alia, that that provision de facto enabled an employer to dismiss on any subjective grounds an employee who was a member of the trade union. They emphasised that no employer would ever explicitly admit that the real reason for dismissal was the trade union activity of the employee in question, as in such a case the SLI would not grant its consent. The law entitled employees’ representatives to additional protection from discriminatory treatment, in view of the fact that the relationship between them and their employers was inherently hostile. However, the applicants contended that Article 59 essentially gave the employer the right to dismiss members of the trade union without any objective grounds for doing so and thereby interfere with the activities of the trade union, which was contrary to the principles enshrined in Article 50 of the Constitution.
Decision of the Constitutional Court88. On 22 January 2020 the Constitutional Court declined to accept the applicants’ complaint for examination.
89. The Constitutional Court considered that the part of the complaint concerning Article 168 § 3 of the Labour Code essentially concerned the alleged conflict between that provision and Article 21 § 1 of the Law on Trade Unions, but not the compatibility of Article 168 § 3 of the Labour Code with the Constitution. However, questions relating to conflicts between different laws fell outside of the remit of the Constitutional Court.
90. As to the complaint concerning Article 59 of the Labour Code, the Constitutional Court stated that the decision of the SLI – which, according to the applicants, had breached their rights (see paragraph 85 above) – had not applied that legal provision and that the applicability of Article 59 had fallen outside the scope of the administrative proceedings (see paragraph 44 above). In such circumstances, the applicants did not have the right to challenge the compliance of Article 59 of the Labour Code with the Constitution (see paragraph 95 below).
Second set of proceedingsThe applicants’ constitutional complaint91. On 29 November 2021 the applicants lodged a new complaint with the Constitutional Court in which they again asked it to examine whether Articles 59 and 168 § 3 of the Labour Code complied with Article 50 of the Constitution (see paragraphs 95, 107 and 111 below). The applicants submitted that their rights had been violated by the company’s decision to dismiss the first applicant (see paragraph 59 above) and the court decisions in the ensuing civil proceedings, in which the aforementioned provisions of the Labour Code had been applied. They presented essentially the same arguments as those which they had raised in their previous constitutional complaint (see paragraphs 86 and 87 above).
Decision of the Constitutional Court92. On 26 January 2022 the Constitutional Court declined to accept the applicants’ complaint for examination. It reiterated its previous conclusion regarding the part of the complaint concerning Article 168 § 3 of the Labour Code (see paragraph 89 above). As to the complaint concerning Article 59 of the Labour Code, the Constitutional Court observed that the grounds which justified dismissing an employee under that legal provision had been elucidated in the case-law of the Supreme Court (see paragraph 125 below). It considered that the applicants were essentially disputing the courts’ interpretation of the facts of the case and their conclusion that the first applicant’s dismissal had not been related to his trade union activities. That is to say, their complaint concerned the correctness of the application of Article 59 of the Labour Code in their case, but not its compatibility with the Constitution. However, questions relating to the application of the law fell outside of the remit of the Constitutional Court.
Other relevant facts93. In April 2018 AB Amber Grid decided to implement certain changes to its corporate structure. As part of those changes, the department that, at that time, was led by the first applicant, was to be eliminated on 31 July 2018. While the administrative proceedings were ongoing, the first applicant asked the Supreme Administrative Court to apply interim measures and to suspend the restructuring. However, the court refused his request on the grounds that the administrative case concerned his complaint against the decision of the SLI and it was not related to any structural changes within the company. Thus, the measures requested by the first applicant were not directly related to the subject matter of the case, and allowing his request would be contrary to the purpose of such measures. In July 2018 the first applicant asked AB Amber Grid to provide him with a position equivalent to that which he had held previously, but the company refused his request.
94. In September 2018 the second applicant lodged a complaint against AB Amber Grid, arguing that the latter had failed to comply with the obligation, provided by law, to inform and consult the applicant union when implementing changes in its corporate structure and that those changes were therefore unlawful. However, the courts dismissed the complaint, holding that the company had fulfilled its relevant obligations – the fact that it had not adopted the proposals made by the applicant union did not mean that the information and consultation process had been carried out improperly.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
DOMESTIC LAW AND PRACTICEConstitutional and statutory provisionsConstitution95. The relevant provisions of the Constitution read as follows:
Article 29
“All persons shall be equal before the law, courts, and other State institutions and officials.
Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.”
Article 35
“Citizens shall be guaranteed the right to freely form societies, political parties, and associations, provided that the aims and activities thereof are not contrary to the Constitution and laws.
No one may be compelled to belong to any society, political party, or association.
The founding and activities of political parties and other political and public organisations shall be regulated by law.”
Article 50
“Trade unions shall be established freely and shall function independently. They shall defend the professional, economic, and social rights and interests of employees.
All trade unions shall have equal rights.”
Article 105
“The Constitutional Court shall consider and adopt decisions on whether the laws of the Republic of Lithuania or other [legal instruments] adopted by the Seimas are in conflict with the Constitution of the Republic of Lithuania ...”
Article 106
“The Government, no less than 1/5 of all the members of the Seimas, and the courts shall have the right to lodge an application with the Constitutional Court [asking it to examine whether the legal instruments indicated in the first paragraph of Article 105 comply with the Constitution].
...
Every person shall have the right to apply to the Constitutional Court concerning the [legal instruments] specified in the first and second paragraphs of Article 105 if a decision adopted on the basis of these [legal instruments] has violated the constitutional rights or freedoms of the person and the person has exhausted all legal remedies. The procedure for implementing this right shall be established by the Law on the Constitutional Court ...”
Labour Code of 200296. The old Labour Code was adopted on 4 June 2002. It entered into force on 1 January 2003 and remained in force until 30 June 2017, with multiple amendments.
97. Under the Code, an employment contract could be terminated on the following grounds: by mutual consent of the parties concerned (Article 125); upon the expiration of a fixed-term employment contract (Article 126); at the decision of the employee (Article 127); for reasons not depending on the employee, such as the employer’s failure to provide the employee with work or to pay his or her salary for prolonged periods of time (Article 128); at the employer’s initiative, through no fault of the employee (Article 129).
98. Article 129 § 1 provided that an employment contract could be terminated at the employer’s initiative, through no fault of the employee, for important reasons. Under Article 129 § 2, reasons which were considered important could relate to the employee’s qualification, professional capabilities or behaviour at work. An employment contract could also be terminated for economic or technological reasons, structural changes within the company or similar important reasons, as well as other grounds provided in the Code and other legal instruments. Under Article 129 § 3, an employment contract could not be terminated for reasons related to, inter alia, the employee’s membership in a trade union or his or her activity in representing employees.
99. Article 134 § 1 provided that employees who had been elected as employees’ representatives could not, during the period for which they had been elected, be dismissed under Article 129 without the consent of the body to which they had been elected. Under Article 134 § 3, in the event that such consent was refused, the employer could challenge it before the courts. A court could quash the refusal if the employer proved that it had violated the very essence of its interests.
Labour Code of 2016100. The new Labour Code was adopted on 14 September 2016 and entered into force on 1 July 2017.
(a) Explanatory report
101. According to the explanatory report of the new Labour Code (8 June 2015, no. 15-5469(3)), the Lithuanian labour law was characterised by relatively strict regulation of labour relations. Moreover, the role of collective regulation of labour relations was rather small. Although the law provided the possibility of establishing trade unions on the national or industry level, as well as establishing work councils as an additional body representing employees, that had not resulted in encouraging collective bargaining and conclusion of collective agreements. As a consequence, labour relations were mainly regulated by law, which often lacked flexibility. For example, the existing Labour Code provided an exhaustive and detailed list of grounds on which an employee could be dismissed, whereas in many other countries the regulation of dismissal was more liberal and employers could dismiss an employee for reasons related to his or her behaviour or skills, or for economic reasons. Such inflexible regulation did not correspond to the present-day needs of the labour market, did not encourage the creation of workplaces and of foreign investment, and contributed to the persistence of illicit labour practices. Therefore, the new Labour Code sought to, inter alia, liberalise the dismissal of employees. It also sought to encourage employees to join trade unions – for example, by providing that collective agreements would only be applicable to trade union members.
(b) Provisions concerning the termination of employment contracts
102. Under Article 54 of the Labour Code, an employment contract can be terminated by mutual consent of the parties, at the suggestion of either party. When terminating an employment contract on this basis, the parties concerned have to agree on, inter alia, the date of its termination and the amount of severance pay.
103. Under Article 55, an employment contract may be terminated at the employee’s initiative, without important reasons. The employee must give at least twenty days’ notice to the employer.
104. Under Article 56, an employment contract may be terminated at the employee’s initiative for important reasons – inter alia, the employee’s health or retirement or the employer’s failure to pay the employee or to ensure proper working conditions. In such circumstances, the employee is entitled to severance pay amounting to two months’ salary (one month’s salary if he or she was employed for less than a year).
105. Under Article 57, an employment contract may be terminated at the employer’s initiative, through no fault of the employee concerned, for one of the following reasons: (1) the employee’s position is redundant for reasons related to reorganisation or changes in the employer’s activities; (2) the employee fails to achieve the agreed work results; (3) the employee refuses to work under altered working conditions; (4) the employee refuses to continue in the employment relationship after the business or its part has been transferred to a different owner; (5) the employer, being a legal entity, is terminated by a decision of its governing body or a court. In such circumstances, the employee is entitled to severance pay amounting to two months’ salary (one month’s salary if he or she was employed for less than a year).
106. Under Article 58, an employment contract may be terminated at the employer’s initiative and through fault of the employee when the employee deliberately commits a serious disciplinary violation or repeats a disciplinary violation within a year of committing the first such violation. In such circumstances, the employee is not entitled to severance pay.
107. Under Article 59, an employment contract may be terminated at the employer’s will for reasons that are not provided in Article 57, after giving the employee a notice of at least three days. The employee is entitled to severance pay amounting to six months’ salary. Article 59 § 1 states that this provision is not applicable to the following: (1) State or municipal institutions or entities that are financed from the State or municipal budget, the budget of the State Social Insurance Fund or from other funds created by the State; (2) State or municipal enterprises (valstybės ar savivaldybės įmonės); (3) public entities that are owned by the State or a municipality; and (4) the central bank. Article 59 § 2 provides, inter alia, that an employment contract cannot be terminated under that ground for discriminatory motives.
(c) Provisions concerning trade unions
108. Under Article 165 § 2, in their collective relations with the employer, employees may be represented by a trade union, a work council or a trusted representative.
109. Under Article 165 § 3, trade unions represent their members in the cases indicated in the Labour Code and other legal instruments. Participation in collective bargaining, signing collective agreements and instituting collective labour disputes is the exclusive right of trade unions.
110. Article 166 § 1 provides that employees’ representatives act freely and independently of the employer, who must not attempt to influence their decisions or to interfere with their activities. The employer cannot hire an employee or keep him or her employed on the condition that the employee will not join or will leave a trade union.
111. Article 168 § 3 provides, inter alia, that employees’ representatives cannot be dismissed at the employer’s initiative or will without the consent of the SLI during the period for which they have been elected to represent employees and for six months after the end of their term. The employer must lodge a reasoned request with the SLI, and the latter must examine it within twenty days. Employees and their representatives have the right to submit their opinion to the SLI and they must be given at least five working days to do so. The consent of the SLI shall be granted if the employer demonstrates that its wish to dismiss the employee is not related to his or her activities in the representation of employees and that the employee is not being discriminated against on the grounds of his or her role in the representation of employees or membership in the trade union.
112. Article 179 § 1 provides that trade unions, when defending employees’ labour, professional, economic and social rights and interests, act in accordance with the laws regulating trade union activities, the provisions of the Labour Code and their internal regulations.
(d) Other relevant provisions
113. Article 3 § 2 provides that, in the event of a contradiction between a provision of the Labour Code and another legal instrument, the former applies, unless the Code itself provides otherwise.
114. Article 26 § 1 prohibits direct and indirect discrimination of employees on the grounds of, inter alia, their convictions or views.
Law on Trade Unions115. The Law on Trade Unions was adopted and entered into force on 21 November 1991 and has been amended on numerous occasions. At the material time, Article 21 § 1 provided that an employee who had been elected a member of the governing body of a trade union could not, during the period for which he or she had been elected, be dismissed at the employer’s initiative, through no fault of the employee, unless the trade union consented to the dismissal. Under Article 22 § 2, disputes between the trade union and the employer had to be settled by a court.
Law on Equal Opportunities116. Article 2 § 1 of the Law on Equal Opportunities states that discrimination may be direct or indirect; it may also take the form of harassment or an order to discriminate against someone on the grounds of his or her sex, race, nationality, citizenship, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin or religion.
117. Under Article 4, when allegations of discrimination are examined by the courts or other authorities, once the claimant indicates the circumstances that give grounds to believe that direct or indirect discrimination has occurred, that fact is presumed and the burden is shifted onto the defendant in order to demonstrate that there has been no discrimination.
Other relevant legal instruments118. Article 2 § 1 of the Law on State and Municipal Enterprises defines a State enterprise (valstybės įmonė) as an enterprise established using State assets or transferred to the State in accordance with a procedure provided by law; such an enterprise is owned by the State and empowered to use and manage the assets that have been transferred to it or that it has acquired.
119. Article 2 § 15 of the Law on the Use and Management of State and Municipal Assets defines a State-owned company (valstybės valdoma bendrovė) as a joint-stock company and/or a private limited liability company in which the State holds a sufficient number of shares as to give it more than half of the votes in a shareholders’ general meeting. Article 2 § 16 defines a State-owned enterprise (valstybės valdoma įmonė) as (i) a State enterprise operating in accordance with the Law on State and Municipal Enterprises (see paragraph 118 above), or (ii) a State-owned company.
120. The Law on Joint-Stock Companies lays out the rules on the establishment, management, activities, reorganisation, restructuring and liquidation of entities whose legal form is that of a joint-stock company (akcinė bendrovė) or a private limited liability company (uždaroji akcinė bendrovė), and the rights and duties of such companies’ shareholders.
121. The Articles of Association of AB Amber Grid, registered in the Register of Legal Entities on 17 June 2020, provide, in their relevant parts:
“1. AB Amber Grid (the Company) is a limited civil liability private legal entity with its authorised capital divided into shares.
2. The Company shall be liable for its obligations to the extent of its own assets. The Company shall not be liable for the shareholders’ obligations, whereas the shareholders shall not be liable for the Company’s obligations. The shareholders do not have any other property obligations towards the Company except for the obligation to pay the emission price for all the subscribed shares following the established procedure.
3. The legal form of the Company shall be a [joint-stock] company
...
7. In its activities the Company shall follow the [domestic] laws, European Union and international legislation, as applicable, other legislation effective in the Republic of Lithuania (the LR), the Guidelines on Corporate Governance of the State-Owned Energy Sector Enterprise Group, with all subsequent amendments and supplements thereto adopted by the Ministry of Energy of the LR, resolutions of the Government of the LR regarding the governance of State-owned or -controlled companies, the Governance Code for Companies Listed on the NASDAQ Vilnius ... unless provided otherwise by these Articles of Association, as well as these Articles of Association and any internal corporate documents of the Company Group and the Company that are approved following the established procedure.
8. The main purposes of the Company’s business are to engage in activities relating to the transmission of natural gas, further to its responsibility for ensuring the stability and reliability of the gas system within the territory of the LR and to create objective and non-discriminatory conditions for the use of gas networks, as well as conditions for development of a competitive gas market, to operate safely and efficiently the gas transmission system, to ensure reliable gas transmission (transportation through high-pressure pipelines) to the users of the natural gas transmission system, [to ensure] the consistent capacity of the system to satisfy reasonable gas-transportation demands, to control the assets of the gas transmission system and their appurtenances, and to guarantee the expansion of the gas transmission system and its connection with other systems, and the rational use of the Company’s assets and other resources.
...
18. The Company’s bodies shall be the following:
i. the general shareholders’ meeting ... ;
ii. the board ... ;
iii. the head of the Company – the Director General of the Company ...
...
20. Bodies of the Company shall adopt decisions independently and within the scope of the authority granted to them by legislation effective in the LR and by these Articles of Association. The bodies of the Company shall be fully liable for decisions adopted. In adopting decisions, the Company’s bodies shall act in the interests of the Company and the Company’s shareholders ...”
Domestic courts’ practiceConstitutional Court122. In a ruling of 14 January 1999, the Constitutional Court held:
“According to Article 21 § 1 of the Law on Trade Unions ... a trade union member may avail himself or herself of the [defence services] of the trade union when the issue of his or her dismissal is being decided. Thus, such a person, [in comparison to] other employees, enjoys additional guarantees owing to his or her trade union membership.
The provisions of ... Article 21 of the Law on Trade Unions regulate the labour and social guarantees that apply to those trade union members who are elected to elective bodies of the trade union. These guarantees are provided to such trade union members in order that they will not be discriminated against because of their work for the elective bodies of the trade union – i.e. in order that they will not be dispensed with because of their activities within the said bodies (for instance, by means of the groundless imposition of disciplinary penalties, dismissal, being moved to a worse job, etc. – and in order that during their work for the said bodies their equal rights with other employees will be preserved ...”
123. In a ruling of 30 September 2003, the Constitutional Court held:
“The status and principles of the activities of trade unions established in the Constitution – together with the striving for an open, just and harmonious civil society and State under the rule of law and the democratic character of the State of Lithuania, as established in the Constitution – imply the principle of the autonomy of trade unions with regard to the State and its institutions.
Within this context it should be noted that the provision of Article 50 § 1 of the Constitution that trade unions shall be freely established and shall function independently means, inter alia, that trade unions are independent of State authority and other State institutions, of employers and their organisations, and of other organisations. Only freely united trade unions that are functioning independently of State authority and of other State institutions, of employers and their organisations, and of other organisations can protect the professional, economic and social rights and interests of employees. Under the Constitution, there may be no legal regulation that would restrict or deny the constitutional right of trade unions to establish themselves freely and to function independently while defending the professional, economic and social rights and interests of employees.”
Supreme Court(a) Concerning grounds which justify dismissing an employee
124. In a decision of 13 September 2011 in case no. 3K-3-346/2011 and a decision of 23 February 2015 in case no. 3K-3-48-969/2015, the Supreme Court examined what grounds would justify dismissing an employee under Article 129 of the Labour Code of 2002 (see paragraph 98 above). It held that, for the purposes of that provision, circumstances that could justify an employer dismissing an employee had to be understood as certain subjective characteristics of the employee’s personality or character which did not warrant imposing disciplinary liability but which nonetheless objectively manifested themselves in the form of improper behaviour at work. Examples of such circumstances included unfounded conflicts with one’s colleagues, behaviour that created stress or psychological discomfort among staff, expressing views that were incompatible with the job or with public morals, or ignoring the norms of professional ethics. Circumstances relating to an employee’s behaviour at work or his or her personality could justify dismissing him or her only when they rendered that employee unsuitable for the job. Suitability for one’s job had to be understood not only as the ability to properly carry out one’s direct work functions but also as the effect of the employee’s behaviour on the working environment, the productivity and efficiency of other employees, or the image of the company. Where the employee challenged his or her dismissal before the courts, the burden was on the employer to justify the dismissal, and the courts had to verify whether those reasons were sufficiently important.
125. In a decision of 25 June 2020 in case no. e3K-3-199-701/2020, the Supreme Court examined what grounds would justify dismissing an employee under Article 59 of the Labour Code of 2016 (see paragraph 107 above). It held that that provision, by contrast with the previous legal regulation, provided more flexibility and discretion for employers to dismiss employees, except as regards those categories of employers that were explicitly excluded from the scope of its application. Grounds for dismissing an employee could be related to, inter alia, his or her personality, behaviour at work, professional qualifications, or the situation of the employer. While the employer had certain discretion, the reasons for dismissing an employee had to actually exist and not be hypothetical or fictitious – they had to be lawful, sufficient to justify the dismissal and not fall within the grounds provided in Articles 57 § 1 and 59 § 2 of the Labour Code. Where the dismissed employee challenged the dismissal before the courts, the burden was on the employer to prove that it had been lawful. When examining such disputes, the courts had to examine and identify whether the grounds on which the dismissal had been based were real, lawful and sufficient to justify it. They had to assess whether, given the circumstances at hand, the employer had acted as a diligent, thorough, responsible, rational and intelligent person (bonus pater familias).
(b) Concerning dismissal of trade union members
126. In a decision of 25 January 2011 in case no. 3K-3-13/2011, the Supreme Court examined a complaint lodged by an employer against a trade union after the latter had refused to consent to the dismissal of an employee who was one of its members. The Supreme Court stated that the purpose of Article 21 § 1 of the Law on Trade Unions (see paragraph 115 above) was to ensure that trade union members were independent of their employer and to avoid any possible abuse by the employer of its right to dismiss employees, thereby getting rid of “inconvenient” trade union leaders. Thus, that legal provision accorded trade union members additional protection of their rights, in exchange for the additional risk which they had undertaken by becoming employees’ representatives. However, such protection was not absolute. The law entitled an employer to challenge before the courts a trade union’s refusal to grant it leave to dismiss an employee; the courts could overturn that refusal if the employer demonstrated that it had violated the very essence of its interests. Whether there had been such a violation of the employer’s interests had to be assessed in the light of the circumstances of each case. The Supreme Court emphasised that, when examining such cases, the role of the courts was not to assess whether the dismissal of the employee would be lawful and justified, because that could only be done after the employee had actually been dismissed and had complained about it to the courts.
127. In a decision of 24 May 2012 in case no. 3K-3-248/2012, the Supreme Court held that, when assessing the employer’s request for the trade union’s consent to an employee’s dismissal, it was necessary to examine, to a certain extent, the factual circumstances and the violations allegedly committed by the employee, because without doing so, it would not be possible to determine whether the refusal of such consent would violate the very essence of the employer’s interests or whether the intended disciplinary penalty was related to the employee’s trade union activities. The burden was on the employer to demonstrate that the refusal of consent violated the very essence of its interests.
(c) Concerning the distribution of burden of proof
128. In a decision of 16 March 2017 in case no. e3K-3-134-969/2017, the Supreme Court addressed the question of whether the rules on the distribution of the burden of proof, as enshrined in Article 4 of the Law on Equal Opportunities (see paragraph 117 above), were applicable to cases concerning alleged discrimination against an employee on the grounds of that employee’s trade union activities. It held that the Law on Equal Opportunities had been enacted in order to implement Council Directive 2000/43/EC of 29 June 2000 regulating the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The purpose of Directive 2000/43/EC was to combat discrimination on the grounds of racial or ethnic origin, and the purpose of Directive 2000/78/EC was to combat discrimination on the grounds of religion or belief, disability, age or sexual orientation in the area of employment and occupation. The Court of Justice of the European Union (CJEU) had held that the scope of the application of Directive 2000/78/EC should not be extended by analogy to grounds of discrimination other than those that were explicitly listed in Article 1 of that Directive.
129. In this connection, the Supreme Court relied on the following: judgment of 11 July 2006, Sonia Chacón Navas v Eurest Colectividades SA, C-13/05, ECLI:EU:C:2006:456, in which the CJEU had held that Directive 2000/78/EC could not be extended by analogy to prohibit discrimination on the grounds of sickness; judgment of 17 July 2008, S. Coleman v Attridge Law and Steve Law, C-303/06, ECLI:EU:C:2008:415, in which the CJEU had reiterated the aforementioned conclusion but had found that Directive 2000/78/EC covered situations in which an employee had been treated less favourably on the grounds of the disability of his or her child; and judgment of 18 December 2014, Fag og Arbejde (FOA) v Kommunernes Landsforening (KL), C-354/13, ECLI:EU:C:2014:2463, in which the CJEU had held that obesity could not be regarded as a ground for dismissal, in addition to those grounds in respect of which Directive 2000/78/EC prohibited discrimination.
130. The Supreme Court concluded that the protection mechanism established by the Law on Equal Opportunities, including the rules regarding the distribution of burden of proof, was applicable only to cases that concerned alleged discrimination on any of the grounds listed in that Law (see paragraph 116 above), but not to cases concerning alleged discrimination on the grounds of trade union activities.
Supreme Administrative Court131. In a decision of 10 May 2012 in case no. A520-2288/2012, the Supreme Administrative Court examined the refusal by a trade union to consent to the imposition of a disciplinary penalty on a civil servant. It held that trade unions had an obligation to use the rights granted to them under Article 21 § 1 of the Law on Trade Unions (see paragraph 115 above) only as a means of defending their members from discrimination. In the absence of evidence that the disciplinary penalty was being imposed on the civil servant because of his or her trade union membership, refusal by the relevant trade union to grant consent would be unlawful as it would unduly restrict the right of a public-administration entity to react to disciplinary violations. When determining whether to consent to a disciplinary penalty, the trade union had to assess only whether that penalty was being imposed because of the civil servant’s trade union activities, but not whether it was lawful or well-founded. Similarly, the courts examining complaints against the refusal of a trade union to give consent did not assess whether the disciplinary penalty was justified, but only if the trade union’s refusal restricted the ability of a public-administration entity to carry out its functions.
Other relevant case-law132. In a decision of 17 May 2018 in case no. e2A-1674-910/2018, the Vilnius Regional Court examined, as the appellate court, a complaint lodged by an individual against AB Amber Grid, challenging his dismissal at the employer’s will under Article 59 of the Labour Code (see paragraph 107 above). The claimant argued that that provision was not applicable to AB Amber Grid, but the court rejected this argument. It found that AB Amber Grid was not financed from the State or municipal budget or from other funds created by the State, nor was it a State or municipal enterprise, or any other kind of legal entity owned by the State or a municipality. The claimant submitted that the majority of the company’s shares were held by a private limited liability company EPSO-G, and 100% of the latter’s shares were held by the State; moreover, AB Amber Grid was in charge of natural-gas transmission and its activities were regulated by law. However, the court held that those circumstances did not suffice to conclude that AB Amber Grid fell under the list of entities who could not dismiss employees on the specific grounds indicated in Article 59 of the Labour Code. The exception in that provision covered legal entities that were financed from public funds, but that was not the case in respect of AB Amber Grid, which was a for-profit entity. The court emphasised that, in order to ensure legal certainty in labour relations and a proper balance between the interests of employees and employers, the provisions of labour law could not be construed expansively. Therefore, there were no grounds to expand the list of legal entities who were prohibited from dismissing employees under Article 59 of the Labour Code.
Statistics of the SLI’s decisions regarding employers’ requests133. Between the second half of 2018 and the end of 2021, the SLI granted more than 80% of the requests lodged by employers to be allowed to dismiss employees’ representatives or to worsen the conditions under which those representatives worked:
- During the second half of 2018, it granted eighteen such requests and refused seven;
- In 2019, it granted fifty-three requests and refused three;
- In 2020, it granted thirty-five requests and refused seven;
- In 2021, it granted fifty requests and refused four.
INTERNATIONAL MATERIALCouncil of Europe134. The relevant part of Article 5 of the revised European Social Charter, which was ratified by Lithuania on 29 June 2001, reads:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom ...”
135. In its decision of 3 June 2008 (Mental Disability Advocacy Center (MDAC) v. Bulgaria, complaint no. 41/2007), the European Committee of Social Rights stated:
“52. The Committee recalls its case law regarding disputes about discrimination in matters covered by the Revised Charter, adopted in the framework of reporting procedure, that the burden of proof should not rest entirely on the complainant, but should be the subject of an appropriate adjustment. It also applies to the collective complaints procedure. The Committee therefore relies on the specific data sent to it by the complainant organisation, such as its statistics which show unexplained differences. It is then for the Government to demonstrate that there is no ground for this allegation of discrimination.”
International Labour Organization (ILO)Conventions136. Article 3 of the ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise, which was adopted in 1948 and ratified by Lithuania on 26 September 1994, reads:
“1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”
137. Article 1 of the ILO Convention No. 98 on the Application of the Principles of the Right to Organise and to Bargain Collectively, which was adopted in 1949 and ratified by Lithuania on 26 September 1994, reads:
“1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated to -
(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.”
138. Article 1 of ILO Convention No. 135 on Worker’s Representatives, which was adopted in 1971 and ratified by Lithuania on 26 September 1994, reads:
“Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.”
139. The relevant provisions of ILO Convention No. 158 on Termination of Employment at the Initiative of the Employer, adopted in 1982 and not ratified by Lithuania, read:
Article 3
“For the purpose of this Convention the terms termination and termination of employment mean termination of employment at the initiative of the employer.”
Article 4
“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”
Article 5
“The following, inter alia, shall not constitute valid reasons for termination:
(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, or acting or having acted in the capacity of, a workers’ representative; ...”
Article 7
“The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.”
Article 8
“1. A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.
2. Where termination has been authorised by a competent authority the application of paragraph 1 of this Article may be varied according to national law and practice ...”
Article 9
“1. The bodies referred to in Article 8 of this Convention shall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.
2. In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or the other or both of the following possibilities:
(a) the burden of proving the existence of a valid reason for the termination as defined in Article 4 of this Convention shall rest on the employer;
(b) the bodies referred to in Article 8 of this Convention shall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to procedures provided for by national law and practice ...”
Other relevant documents140. The relevant parts of ILO Recommendation no. 143 on Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking, adopted in 1971, read:
“5. Workers’ representatives in the undertaking should enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.
6. (1) Where there are not sufficient relevant protective measures applicable to workers in general, specific measures should be taken to ensure effective protection of workers’ representatives.
(2) These might include such measures as the following:
(a) detailed and precise definition of the reasons justifying termination of employment of workers’ representatives:
(b) a requirement of consultation with, an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative becomes final;
(c) a special recourse procedure open to workers’ representatives who consider that their employment has been unjustifiably terminated, or that they have been subjected to an unfavourable change in their conditions of employment or to unfair treatment;
...
(e) provision for laying upon the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers’ representative, the burden of proving that such action was justified; ...”
141. The relevant parts of a Global Report on Freedom of association and collective bargaining prepared by the ILO’s Committee of Experts on the Application of Conventions and Recommendations, and issued on 1 June 1994, read (references omitted):
“214. The existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Hence the importance of Article 3 of Convention No. 98, which provides that ‘Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize ...’ as defined in Articles 1 and 2 of the Convention. Such protection against acts of anti-union discrimination may thus take various forms adapted to national legislation and practice, provided that they prevent or effectively redress anti-union discrimination ...
215. In some cases legislation establishes preventive machinery by requiring that certain measures taken against trade union representatives or officers must first be authorized by an independent body or public authority (labour inspectorate or industrial tribunals), a trade union body or the works council. In most legislation, however, the emphasis is laid on compensation for the prejudice suffered. The bodies authorized to rule on such cases are the ordinary courts or specialized bodies hearing cases dealing with industrial relations. Sometimes the measure taken by the employer against the worker is suspended until the competent authority has ruled on the matter.
216. Whether the machinery is based on prevention or compensation, experience has shown that similar problems arise in practice and concern in particular the slowness of the proceedings, the difficulties relating to the burden of proof and the possibility for the employer to acquit himself by paying compensation which bears no proportion to the seriousness of the prejudice suffered by the worker. The Committee therefore emphasizes the necessity of providing expeditious, inexpensive and impartial means of preventing acts of anti-union discrimination or reducing them as quickly as possible.
Evidence
217. One of the main difficulties results from placing on workers the burden of proving that the act in question occurred as a result of anti-union discrimination, which may constitute an insurmountable obstacle to compensation for the prejudice suffered. Legislation in several countries has therefore strengthened the protection of workers by placing on the employer the onus of proving that the act of alleged anti-union discrimination was connected with questions other than trade union matters, and some texts expressly establish a presumption in the worker’s favour. Since it may often be difficult, if not impossible, for a worker to prove that he has been the victim of an act of anti-union discrimination, legislation or practice should provide ways to remedy these difficulties, for instance by using the methods mentioned above.
218. The Committee draws attention to the relevance of ... Article 9(2) of the Termination of Employment Convention, 1982 (No. 158), [and] ... Paragraph 6(2)(e) of the Workers’ Representatives Recommendation, 1971 (No. 143) ...”
142. The relevant parts of the Compilation of decisions of the ILO Committee on Freedom of Association, issued on 20 June 2018, read (references omitted):
“...
1072. Anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions.
...
1076. No one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished.
...
1106. It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities ...”
THE LAW
THE GOVERNMENT’S PRELIMINARY OBJECTIONThe parties’ submissions143. In their observations submitted on 14 May 2021, the Government contended that the applicants had failed to exhaust the available effective domestic remedies because, at that time, they had not yet appealed against the Vilnius Regional Court’s decision of 22 April 2021 (see paragraph 79 above).
144. The applicants disagreed with the Government’s contention, arguing that they had exhausted the available domestic remedies by instituting administrative proceedings.
The Court’s assessment145. The Court reiterates that an applicant’s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court. However, the Court’s well-established case-law shows that it allows the last stage of a particular remedy to be reached after the application has been lodged but before its admissibility has been determined (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 193, 22 December 2020, and the cases cited therein).
146. In the present case, the application was lodged with the Court on 24 December 2019. At that time, the administrative proceedings concerning the first applicant’s dismissal had already been concluded, but the civil proceedings were still pending. The final decision in the civil proceedings was taken by the Supreme Court on 28 July 2021, before the Court decided on the admissibility of the case. Accordingly, it considers that the Government’s objection as to non-exhaustion has lost its relevance (see Molla Sali v. Greece [GC], no. 20452/14, § 90, 19 December 2018). It must therefore be dismissed.
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION AND ARTICLE 14 OF THE CONVENTION taken in conjunction with Article 11147. The applicants complained that the first applicant’s dismissal had amounted to discrimination against him on the grounds of his trade union activities and that it had affected the second applicant’s right to freedom of association. They also complained that the domestic authorities and courts had failed to properly examine their complaints. The applicants relied on Articles 6 § 1, 10, 11 and 14 of the Convention.
148. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018). In the present case, it observes that both applicants submitted that their Convention rights had been breached by the first applicant’s dismissal. They both complained about the same facts and presented joint arguments as to why that dismissal and the ensuing court proceedings had not complied with the various provisions of the Convention. Nonetheless, the Court is of the view that those same facts affected the two applicants – an individual and a trade union – differently. It considers that, with respect to the first applicant, the complaints fall to be examined under Article 14 of the Convention taken in conjunction with Article 11, and that with respect to the second applicant, it is more appropriate to examine them under Article 11 of the Convention taken alone.
Those provisions read as follows:
Article 11 (freedom of assembly and association)
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Article 14 (prohibition of discrimination)
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
AdmissibilityThe parties’ submissions149. The Government argued that the second applicant could not claim to be a “victim” of a violation of Article 11 of the Convention. They submitted that the dismissal of a trade union member for reasons that were related solely to his work performance and not to his trade union activities could not be considered to constitute an interference with the trade union’s rights under Article 11.
150. The applicants disputed the Government’s submissions and argued that the first applicant’s dismissal had been related to his trade union activities.
The Court’s assessment151. The Court reiterates that Article 11 of the Convention protects both workers and trade unions. Just as a worker should be free to join a trade union, so should a union be free to choose its members (see Yakut Republican Trade-Union Federation v. Russia, no. 29582/09, § 30, 7 December 2021, and the cases cited therein).
152. The Court has previously acknowledged that a lack of protection for employees from discrimination by the employer on the grounds of their trade union activities could have a chilling effect and discourage other persons from joining that trade union, which could in turn lead to its disappearance (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 47, ECHR 2002-V; Danilenkov and Others v. Russia, no. 67336/01, § 135, ECHR 2009 (extracts); and Trade Union of the Police in the Slovak Republic and Others v. Slovakia, no. 11828/08, §§ 60-61, 25 September 2012).
153. Accordingly, the Court considers that, in view of the chilling effect that reprisals against a trade union’s members may have on that trade union’s activities or on the willingness of other employees to join the union, the latter can claim to be a victim of a dismissal of one its members, in the event that that dismissal was allegedly motivated by the individual’s membership or activities in the said trade union (see Yakut Republican Trade-Union Federation, cited above, § 30). The Government’s admissibility objection was based essentially on the argument that the first applicant had been dismissed for reasons unrelated to his trade union activities (compare the Government’s submissions on the merits in paragraph 177 below). However, that argument will be addressed at the merits stage and has no bearing on the applicant union’s victim status.
154. The Government’s admissibility objection is therefore dismissed.
155. The Court further notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
MeritsThe parties’ submissions(a) The applicants
156. The applicants submitted that the first applicant had been dismissed because of his trade union activities and that that amounted to discrimination against him. Moreover, the dismissal had affected the second applicant’s ability to represent employees because by dismissing a member of its board AB Amber Grid had sought to create fear among the applicant union’s members and to discourage other employees from joining it.
157. The applicants argued that allowing an employer to dismiss an elected employees’ representative without substantial reasons in principle constituted a violation of freedom of association. They contended that Article 59 of the Labour Code should not be applicable to employees’ representatives. In order to ensure that the latter were protected from the employer’s reprisals, their dismissal should be allowed only where very serious grounds were present – for example, when the employee in question had breached the law, but not when the dismissal was simply based on the employer’s subjective wish and the latter did not cite any important reasons. The applicants submitted that the effect of Article 59 on the freedom of association of trade unions had not been assessed during the adoption of the Labour Code.
158. They also contended that the consent of the applicant union had been required for the dismissal of the first applicant, as provided by Article 21 § 1 of the Law on Trade Unions. They raised essentially the same arguments as those that they had made in the domestic proceedings (see paragraph 32 above) and argued that the courts had not properly addressed them. Furthermore, with regard to the different regulation provided in Article 168 § 3 of the Labour Code and Article 21 § 1 of the Law on Trade Unions, the applicants argued that the State had failed to fulfil its positive obligation to establish a clear legal framework. In the applicants’ view, any ambiguity in the law should have been interpreted in their favour, and AB Amber Grid should have been required to obtain the applicant union’s consent in order to dismiss the first applicant.
159. The applicants further submitted that the participation of the SLI in the process of dismissing a member of the board of the applicant union had interfered with the latter’s right to form its own governing bodies. They argued that in no other legal entity could a member of that entity’s governing body, who had been elected by other members, be removed upon the intervention of a public authority. That amounted to unjustified interference with the applicant union’s independence and constituted a difference in treatment compared to other types of legal entities. Accordingly, the fact that the SLI, and not the applicant union itself, was entitled to consent to the dismissal of its member violated its freedom of association and amounted to discrimination. Such a system was contrary to, inter alia, ILO Convention No. 87, which prohibited interference by public authorities in the trade union’s freedom of association (see paragraph 136 above). The applicants accepted that the SLI could, in principle, act as an impartial body in respect of out-of-court settlement of labour disputes, but not in cases concerning employees’ representatives.
160. The applicants further contended that the domestic authorities had failed to adequately examine their complaints. In particular, the SLI’s decision had not been adequately reasoned. Moreover, as its representative had admitted during the proceedings, the SLI had not had clear procedures and methodologies for assessing employers’ requests (see paragraph 48 above). The applicants also referred to publicly available information on the number of employers’ requests that had been granted by the SLI (see paragraph 133 above) and argued that that showed that the SLI generally favoured employers. The applicants contended that no employer would directly admit to wishing to dismiss an employee because of his or her trade union activities. Thus, in the absence of a proper methodology, the SLI was bound to always grant its consent whenever some non-union-related reasons were provided, without examining the real motives of the employer. However, the administrative courts had failed to take the applicants’ arguments into account.
161. Furthermore, the applicants argued that, in the procedure before the SLI, the company had been in a more favourable position because it had had unlimited time to prepare its request to be permitted to dismiss the first applicant, whereas the applicants had been given only five days to present their opinions (see paragraph 20 above) and the SLI had refused to extend that time-limit. Moreover, the SLI’s decision had been sent only to AB Amber Grid but not to the applicants (see paragraph 30 above). The first applicant had obtained a copy of the decision from the SLI on his own initiative. Had he not taken that initiative, he would have missed the deadline for lodging a complaint with the administrative courts.
162. In addition, the applicants submitted that, under Article 168 § 3 of the Labour Code, they had been required to provide an “opinion” to the SLI, but not a “reply” or “observations” (see paragraph 111 above). However, the SLI had stated that they had failed to provide evidence, holding that failure against them (see paragraph 29 above).
163. The applicants further submitted that the courts in administrative proceedings had reached the conclusion that the intended dismissal was unrelated to the first applicant’s trade union activities without thoroughly examining the reasons provided by the company. Meanwhile, in the civil proceedings, the courts had declined to examine the first applicant’s trade union activities and had referred back to the decisions of the administrative courts, on the grounds that the latter had become final. Thus, in neither set of proceedings had the courts given due consideration to the entirety of the relevant circumstances. The applicants also submitted that the need to participate in two consecutive sets of proceedings – administrative and civil – was ineffective and obliged the trade union to engage in prolonged litigation, rather than focusing on its primary purpose, which was to defend the rights and interests of employees.
164. The applicants further contended that the courts had failed to properly distribute the burden of proof in respect of their allegation of discrimination. In view of the fact that dismissal constituted an extremely serious form of discrimination, the burden was on the employer to demonstrate that there had been objective and important reasons for dismissing a member of the trade union’s board. However, the domestic authorities and courts had required the applicants to prove that discrimination had occurred, thereby placing the company in a more favourable position.
165. The applicants argued that an employee’s activities, beliefs and views relating to the representation of employees should be presumed and that it should be for the employer in question to demonstrate that the said employee was inactive and did not participate in trade union activities, had no beliefs and views, and was a trade union member in name only, without any actual intention of representing employees. They submitted that AB Amber Grid had failed to prove that such circumstances had been present in the case at hand.
166. The applicants submitted that all the examples of situations in which the first applicant had allegedly failed to carry out certain tasks, on which the company had relied as evidence of his unsuitability for his job (see paragraph 18 above), had dated from the period after the establishment of the applicant union. The only exception had been a complaint lodged by a contractor in 2015; however, prior to 2017 the first applicant had not been the subject of any criticism concerning events that had taken place in 2015. They also pointed out that the first applicant’s management, leadership and communication skills had been assessed positively on two occasions by means of external evaluation (see paragraph 22 above). That demonstrated that the allegations that AB Amber Grid had made during the domestic proceedings with regard to the first applicant’s behaviour at work, his decision-making style and his leadership skills had been unfounded. Nonetheless, the applicants provided detailed submissions, challenging those allegations.
167. They also submitted that there had been instances when company employees who had not been members of the applicant union had been demoted, transferred or disciplined for various violations, but had not been dismissed. Thus, the first applicant’s dismissal had been disproportionate when seen in the context of the company’s usual practice.
168. Furthermore, the applicants argued that the domestic courts had failed to comply with the relevant law. They contended that Article 59 of the Labour Code was not applicable to AB Amber Grid because it was owned by the State. In addition to the arguments that they had raised in the domestic proceedings (see paragraphs 24 and 35 above), the applicants submitted that the company was in sole charge of natural-gas transmission in Lithuania, including the operation, maintenance and development of the natural-gas infrastructure. In 2014, the State enterprise UAB EPSO-G had bought shares in AB Amber Grid from other shareholders and had become its majority shareholder. Moreover, AB Amber Grid was included in lists of State-owned companies published by the Ministry of Energy, the State Audit Office and the Governance Coordination Centre (an analytical centre founded by the Government), and during the domestic proceedings most witnesses had stated that they believed that they worked in a State-owned company.
169. In addition, the applicants referred to a number of facts which, in their view, demonstrated the effect of the company’s interference in the applicant union’s activities. From the date of the establishment of the applicant union until 2021, of the total of nineteen employees who had been elected to its board, only four still worked in the company. Of the four initial members of the negotiating team (see paragraph 9 above), only one still worked in the company. Some members of the applicant union had left the company by mutual consent of the parties or on their own initiative; others had left the applicant union and had continued successfully to work at the company and had even been promoted. The applicant union’s membership was decreasing: between mid-2018 and February 2021 it had lost forty-nine members, of whom seven had left the union and the rest been dismissed. The applicants submitted that such a turnover of staff was unusual within the company. In mid-2018 the applicant union had had 234 members, but in June 2021 that number had stood at 184.
170. The applicants also stated that in August 2018 the members of the applicant union had decided to amend its Articles of Association in order to reduce the number of board members from fifteen to eight and to allow an independent person who was not a member of the applicant union and not an employee of AB Amber Grid to be elected to the board. Those measures had been taken in response to the decreasing number of members of the applicant union and with the aim of reducing the company’s influence on the union. In accordance with the amended Articles of Association, the first applicant had remained a member of the applicant union’s board even after being dismissed (see paragraph 59 above), and in September 2021 he had been re-elected.
171. Lastly, the applicants contended that the new collective agreement (see paragraph 14 above) had been concluded under pressure from the company and that it did not include certain key provisions which the employees’ representatives had originally sought to include. In particular, it did not include a requirement for AB Amber Grid to seek the applicant union’s consent in order to dismiss a member of its board, in contrast to the previous collective agreement (see paragraph 77 above).
(b) The Government
(i) General observations regarding domestic and comparative law
172. The Government submitted that the freedom to form and join trade unions was guaranteed by the Lithuanian Constitution and the case-law of the Constitutional Court (see paragraphs 95, 122 and 123 above). The Labour Code of 2016 also afforded a wide range of rights and guarantees to trade unions and to employees elected as employees’ representatives. However, the Lithuanian labour law had undergone a series of changes between the era of the Soviet occupation and the present day that reflected its evolution from strictly regulated Soviet law to more modern labour law, adapted to the requirements of a pluralistic and democratic society.
173. The Government pointed out that, during the Soviet era, trade unions had been supposed to contribute to increasing productivity and implementing economic plans, and for that reason they had been granted a wide range of powers and guarantees. It had not been possible to dismiss an employee on any grounds without the consent of the local committee of the relevant trade union. During the early period of Lithuania’s independence (1991-1994), the Law on Trade Unions had been adopted, which had established the principle that trade unions were to be freely-formed, independent and self-governing entities. However, it had retained many Soviet-era guarantees, including the requirement for an employer to obtain trade union consent to the dismissal of an employee on any grounds (although that requirement had been narrowed to apply only to members of a trade union). Dismissing employees who had been elected to a trade union’s elected bodies had been subject to additional conditions.
174. The Government noted that during the subsequent period (1994-2001) the labour law had been further reformed to expand the grounds on which employees could be dismissed, in order to meet the needs of the private sector and the free market. At that time, the scope of the requirement that employers obtain the consent of the relevant trade union to the dismissal of any of its members had been narrowed to apply to only certain grounds of dismissal – namely, those that were broader in scope and regulated in a less detailed manner. In 2001 the Law on Trade Unions was amended to further narrow the scope of the latter requirement, making it applicable only to members of trade unions’ elected bodies and only in cases of dismissal at the employer’s initiative and through no fault of the employee (see paragraph 115 above).
175. The Labour Code of 2002 had introduced further changes to the grounds for dismissal provided by law, the conditions under which a trade union’s consent to dismissal was necessary and the procedure for challenging a refusal to grant such consent (see paragraphs 96-99 above). In particular, it had provided that the requirement for an employer to obtain the consent of the relevant trade union applied only in respect of employees elected specifically to the governing body (rather than simply any body) of that trade union. At the same time, the Law on Trade Unions remained in force and some of its provisions were in conflict with the Labour Code. The Government submitted that that Law had likely not been repealed because of its political significance and the constitutionally protected status of trade unions. Moreover, unlike the Labour Code, the Law on Trade Unions applied not only to employees working under employment contracts but also to other categories of persons, such as civil servants. The harmonisation of labour laws had also been hampered by the difficulty of reaching consensus in the Tripartite Council, which consisted of representatives of employees, employers and the Government, and which had to approve any draft labour laws before they were submitted to the Seimas.
176. The Government noted that the Labour Code of 2016 had been adopted with the aim of modernising the labour law by, inter alia, addressing gaps and weaknesses in the existing regulation regime, balancing social guarantees and introducing the concept of “flexicurity”. The mechanism for protecting trade union officials from unjustified dismissal had been seen as one of the areas in need of improvement. The right granted to trade unions to decide on the dismissal of their members had been considered ineffective in practice, partly because they had typically refused to give consent to the dismissal of any of their members, regardless of the reasons provided by the employers. The Government submitted that, according to the travaux préparatoires to the Labour Code of 2016, it had been intended to repeal the Law on Trade Unions upon the adoption of the Labour Code. However, the Seimas had declined to do so, on the grounds that the Law regulated certain matters that were not covered by the Labour Code, such as the establishment of trade unions or the union rights of civil servants.
177. The Government also submitted that the guarantees accorded to trade union members under the Labour Code had to be regarded as protecting both the employee in question and the trade union as such, which meant that trade unions could themselves complain of violations of those guarantees, as had happened in the present case.
178. Article 168 § 3 of the Labour Code had introduced one of the main innovations – the involvement of the SLI in the procedure for dismissing employees’ representatives. In the Government’s view, the chosen model had numerous advantages: (1) employers’ requests were assessed by labour law professionals who were capable of detecting abuses of the law; (2) the SLI was neutral and had no direct interest in the outcome of any given labour dispute; (3) the law provided relatively short time-limits, rendering the procedure expeditious; (4) assessments were carried out on the basis of information provided by the employer, which allowed the SLI to conduct a preliminary examination of the actual reasons for the intended dismissal; (5) the employee and the trade union had the right to submit their opinions; and (6) the decision of the SLI could be challenged by any party before the administrative courts, and the employee could not be dismissed while proceedings were pending.
179. The Government pointed out that, under Article 3 § 2 of the Labour Code, in the event of a contradiction between a provision of the Labour Code and another legal instrument, it was the Labour Code provision that had to be applied (see paragraph 113 above). Accordingly, it was immaterial that Article 21 § 1 of the Law on Trade Unions provided a different mechanism than that enshrined in Article 168 § 3 of the Labour Code or that it had not been amended or repealed.
180. The Government further stated that there was no uniformity among the Contracting States regarding the additional protection from unjustified dismissal accorded to employees elected to trade union governing bodies. The laws of certain States, such as Austria and Germany, did not provide any special procedure to be followed when dismissing such an employee, except for members of elected work councils – in the latter cases, the consent of the work council was required. In other States, including Denmark, Estonia, Ireland and Portugal, the law required that the trade union in question be given prior notice of the dismissal of one of its members. In France, employees’ representatives could not be dismissed without, inter alia, the prior authorisation of a regional labour inspector (inspecteur du travail). Meanwhile the laws of several other States, such as Albania, Hungary, Latvia, the Slovak Republic and Ukraine, required an employer to obtain the consent of the trade union concerned before dismissing a member of that trade union’s governing body.
181. The Government contended that the requirement for an employer to obtain the consent of the relevant trade union was common in those States that had been influenced by Soviet-era labour law. Such States typically required prior consent to be obtained from a trade union before a member of that trade union’s governing body could be dismissed. By contrast, in most Western European countries the law prohibited unjustified or discriminatory dismissal, but its lawfulness was examined a posteriori by the courts. The Government submitted that the legal systems of many post-Soviet countries were being gradually reformed in order to become more similar to the systems existing in countries with long-standing market economies. Thus, the model that had been introduced in Lithuania upon the adoption of the Labour Code of 2016 should be seen as part of that trend.
(ii) Observations regarding the applicants’ complaints
182. The Government stated that the applicants essentially alleged that the first applicant had been discriminated against on the grounds of his active participation in the collective bargaining process. However, the Government contended that he had been only one of fifteen members of the applicant union’s board and one of four members of the negotiating team. All the proposals of the negotiating team had been submitted to the company collectively; thus, there had been no reason for it to single out the first applicant. Moreover, there was no evidence to suggest that AB Amber Grid had in any way restricted the first applicant’s ability to exercise his functions as an employees’ representative. He had continued to work at the company and had continued his trade union activities until the SLI’s decision had become final. Thus, the new collective agreement (see paragraph 14 above) had been drafted and signed with his participation. Accordingly, the Government contended that the company’s wish to dismiss the first applicant had not in any way affected the progress of negotiations or the conclusion of the new collective agreement.
183. The Government also submitted that there had not been a significant decrease in the membership of the applicant union from the time of its establishment until the conclusion of the new collective agreement – it had had 225 members at the beginning of 2018 and the number had remained unchanged at the end of that year.
184. The Government disputed the applicants’ submissions regarding the alleged interference of the company with the applicant union’s activities (see paragraphs 169 and 170 above). They submitted that all the members of the applicant union’s board, except for the first applicant, had left their jobs on their own initiative. Moreover, the applicants had not substantiated how the reduction of the number of board members had affected the applicant union’s ability to continue its activities.
185. The Government reiterated their argument concerning the many advantages of the SLI being involved in the dismissal procedure (see paragraph 178 above). They stated that, since the creation of that mechanism, the number of sets of judicial proceedings instituted against the SLI had been fairly low, which testified to its efficiency. In addition, they referred to the statistical data regarding decisions taken by the SLI with regard to employers’ requests under Article 168 § 3 of the Labour Code (see paragraph 133 above). In the Government’s view, that data should be interpreted as demonstrating that employers in general did not seek to dismiss employees on the grounds of their trade union activities. However, in the event that there was objective information indicating the contrary, the SLI refused to give its consent.
186. The Government further submitted that, under Article 168 § 3 of the Labour Code, the role of the SLI was limited to assessing whether an employer’s wish to dismiss an employee was related to the latter’s trade union activities. A detailed assessment of the circumstances contained in a request lodged by an employer was outside the scope of the procedure followed in such instances before the SLI: the general context and the reasons cited were assessed only to the extent necessary to determine the actual intentions of the employer. Assessing whether the dismissal would be in accordance with the law and whether it was justified fell within the remit of labour dispute commissions and the courts of general jurisdiction.
187. The Government emphasised that in labour disputes it was important to ensure a fair balance between the interests of the employer and those of the employee. Therefore, the fact that an employee was active in the representation of employees could not, in and of itself, eliminate the possibility for the employer to dismiss him or her for work-related reasons. The Government argued that trade union activities could not be considered to always outweigh the interests of the employer and that members of trade unions should not be immune from dismissal, as long as that dismissal was unrelated to their trade union activities.
188. With regard to the burden of proof in cases concerning alleged discrimination on the grounds of trade union activities, the Government submitted that, owing to the nature of the labour law, each party was required to substantiate the circumstances on which it wished to rely. In any event, the Government contended that the applicants had failed to establish even a prima facie case that the first applicant had been discriminated against on the grounds of his trade union activities. AB Amber Grid had provided detailed reasons to the SLI regarding why it wished to dismiss the first applicant; those reasons had been related to his behaviour at work, his communication and decision-making style and other professional or personal characteristics (see paragraphs 17 and 18 above). Before making its decision, the SLI had obtained the opinions of the employee (the first applicant) and the trade union (the second applicant), thereby enabling them to be involved in the procedure. The Government acknowledged that the SLI’s decision had not addressed in great detail the applicants’ complaints regarding discrimination. However, that had been remedied by the administrative courts – in particular, by the Vilnius Regional Administrative Court in its decision of 18 April 2019 (see paragraph 46 above).
189. The Government also submitted that, although Article 59 of the Labour Code provided for dismissal on relatively broad grounds, the employer in question was nonetheless required to provide adequate reasons. Those reasons could not be based merely on the subjective opinion of the employer but had to be related to the proper functioning of the company or the work environment. The courts that had examined the first applicant’s dismissal had followed those principles and had adopted duly reasoned decisions.
190. As to the legal status of AB Amber Grid, the Government submitted that the domestic courts had correctly ruled that it was a joint-stock company: 96.58% of its shares were held by a private limited liability company (UAB EPSO-G), whereas 100% of the shares in the latter company were held by the State. Thus, the majority of the shares of AB Amber Grid were not directly owned by the State but by another company. The role of the State was limited to exercising the supervisory functions of UAB EPSO-G by delegating representatives to its board. Any decisions taken by the State directly affected only UAB EPSO-G; they did not directly affect AB Amber Grid. The Government further submitted that various domestic legal instruments concerning the use and management of State and municipal assets used the terms “State enterprise”, “State-owned enterprise” and “State-owned company”, the latter referring to joint-stock companies and private limited liability companies in which the majority of shares were held by the State (see paragraphs 118 and 119 above). However, the legislature had not used that term in Article 59 of the Labour Code. The list of exceptions set out in that provision was purposefully narrow and only concerned entities that were dependent on public funds. Accordingly, the Government contended that AB Amber Grid did not fall under the exceptions provided in Article 59 of the Labour Code. It pointed out that that conclusion had been reached by the courts in another case concerning dismissal on the same grounds (see paragraph 132 above).
191. In addition, the Government submitted that Article 21 § 1 of the Law on Trade Unions was applicable in those cases where an employee was being dismissed at the employer’s initiative, through no fault of the employee (see paragraph 115 above). However, that had not been the legal basis for the dismissal of the first applicant – he had been dismissed at the employer’s will. Thus, Article 21 § 1 of the Law on Trade Unions had not been applicable in his case and the employer had not been required to obtain the trade union’s consent.
192. Lastly, the Government stated that, in the civil proceedings, the first-instance court had held several oral hearings that had lasted over nineteen hours in total; moreover, seven witnesses had been questioned and ten requests for additional evidence or clarifications, lodged by the first applicant, had been examined. Thus, he had been given ample opportunity to challenge the reasons for his dismissal provided by the company, and the Court should not re-examine those reasons anew, as that would amount to acting as a court of fourth instance.
The Court’s assessment(a) Whether the case concerns the State’s negative or positive obligations
193. There was no dispute between the parties that AB Amber Grid is considered under domestic law to be a State-owned company (see paragraph 119 above) in view of the fact that over 96% of its shares are owned by another company that belongs to the State (see paragraph 190 above). The Court also takes note of the fact that its activities concern the distribution of natural gas, which may be seen as a public-service role.
194. At the same time, according to its Articles of Association, AB Amber Grid is a private legal entity enjoying limited liability, and its governing bodies adopt decisions independently (see paragraph 121 above). Its legal form is that of a joint-stock company and its activities are governed by, among other legal instruments, the Law on Joint-Stock Companies (see paragraphs 120 and 121 above). Thus, it is governed essentially by company law and it is under the control and management of its governing bodies (see, mutatis mutandis, Ukraine-Tyumen v. Ukraine, no. 22603/02, § 27, 22 November 2007). The Court also observes that AB Amber Grid does not enjoy any governmental or other powers beyond those conferred by ordinary private law in the exercise of its activities and that it is subject to the jurisdiction of the ordinary rather than the administrative courts (see Slovenia v. Croatia (dec.) [GC], no. 54155/16, § 62, 18 November 2020). Moreover, as submitted by the Government and not disputed by the applicants, it is a for-profit entity whose activities are financed from its revenues and not from the State’s budget (see paragraph 190 above).
195. Be that as it may, the Court considers that in the present case it is not necessary to determine whether the actions of AB Amber Grid can be attributed to the State. It reiterates that, whether the case is analysed in terms of a positive duty on the State or in terms of interference by a public authority that needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole (see Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR 2006-I, and the cases cited therein).
(b) General principles
196. The Court reiterates that trade union freedom is not an independent right but a specific aspect of freedom of association as recognised by Article 11 of the Convention (see Manole and “Romanian Farmers Direct” v. Romania, no. 46551/06, § 57, 16 June 2015).
197. Article 11 of the Convention affords members of a trade union the right for their union to be heard with a view to protecting their interests, but does not guarantee them any particular treatment by the State. What the Convention requires is that under national law, trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 134, ECHR 2013 (extracts)).
198. An employee or worker should be free to join or not join a trade union without being sanctioned or subject to disincentives (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 39, 27 February 2007).
199. It is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers (see Wilson, National Union of Journalists and Others, cited above, § 46).
200. For the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests (see Trade Union of the Police in the Slovak Republic and Others, cited above, § 55).
201. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom and protection of the occupational interests of union members may be secured (see Sindicatul “Păstorul cel Bun”, cited above, § 133).
202. Lastly, the Court reiterates that States are required under Articles 11 and 14 of the Convention to set up a judicial system that ensures real and effective protection against anti-union discrimination (see Danilenkov and Others, cited above, § 124).
(c) Application of the above principles in the present case
203. The Court must examine whether the domestic legal system provided the applicants with real and effective protection against alleged discrimination on the grounds of trade union activities (in respect of the first applicant) and the alleged violation of the right to freedom of association (in respect of the second applicant). It observes that the applicants raised several arguments in this regard: firstly, they contended that the domestic legal framework was in itself inadequate to protect trade unions and their members, and secondly, that the SLI and the courts had failed to adequately examine their complaints. The Court will address those arguments in turn.
204. In this connection, the Court reiterates that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicants gave rise to a violation of the Convention (see, among many other authorities, Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015).
205. It also reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
(i) Adequacy of the domestic legal framework
(α) Dismissal at the employer’s will under Article 59 of the Labour Code
206. The applicants argued that the very fact that a member of a trade union could be dismissed under Article 59 of the Labour Code (that is to say at the employer’s will) enabled employers to act abusively and get rid of trade union members and leaders without any objective reasons. They argued that dismissal of such employees should be allowed only if they had committed violations of the law or on similarly serious grounds (see paragraph 157 above).
207. The Court observes that Article 59 of the Labour Code allows employers to dismiss employees for reasons which may be linked to his or her character, behaviour at work or relations with colleagues (see paragraphs 107 and 125 above). According to the explanatory report appended to the Labour Code, the legislature sought to make it easier for employers to dismiss employees, in order to encourage the creation of workplaces, attract foreign investment and prevent illicit labour practices (see paragraph 101 above). The Court is mindful of the difficulties faced by the legislature when seeking to strike a fair balance between the interests of employers and those of employees. It finds that the reasons indicated in the explanatory report for making the dismissal of employees easier and more flexible were based on relevant considerations and were not arbitrary.
208. At the same time, the Court agrees with the applicants that an employer who wished to dismiss an employee on the grounds of his or her trade union activities would rarely if ever admit to it and would instead provide reasons that seemed relevant but were in fact made up (see paragraph 160 above). However, it is not convinced that the only way of avoiding the potential abuse of the law is by prohibiting employers from dismissing trade union members unless the latter commit a violation of the law, as suggested by the applicants, since that would constitute an excessive restriction on the rights of employers. In the Court’s view, the possibility provided by the law for any employee, including members and leaders of a trade union, to be dismissed at the employer’s will, for reasons such as those covered by Article 59 of the Labour Code, cannot be considered as inherently contravening the rights of trade unions and their members, as long as the domestic law and practice provide adequate safeguards against discrimination on the grounds of trade union membership.
209. Whether such safeguards were applied in the present case will be examined further when assessing the proceedings held before the domestic authorities. Be that as it may, the Court has no grounds to find that the fact that the legal basis for the first applicant’s dismissal was Article 59 of the Labour Code constituted, in and of itself, a violation of the applicants’ Convention rights, or that it amounted to proof of discrimination on the grounds of trade union activities.
(β) Conflict between the Labour Code and the Law on Trade Unions
210. The applicants submitted that there was a conflict between two legislative provisions: Article 21 § 1 of the Law on Trade Unions required employers to obtain the consent of a trade union when dismissing one of its members, whereas Article 168 § 3 of the Labour Code required the consent of the SLI (see paragraph 158 above). In this respect, the Government specified the reasons for the legislature adopting Article 168 § 3 of the Labour Code, as well as the possible reasons for the Law on Trade Unions not being repealed (see paragraph 176 above). They also stated that the Labour Code itself provided that it had primacy over other legal instruments (see paragraph 179 above).
211. The applicants’ arguments regarding the conflict between the two legislative provisions were addressed by the Vilnius District Court. That court found that it was Article 168 § 3 of the Labour Code and not Article 21 § 1 of the Law on Trade Unions that had to be applied, because Article 168 § 3 did not exclude any category of employees from the scope of its application. The court also stated that, in any event, Article 21 § 1 of the Law on Trade Unions applied to dismissal on the basis of the employer’s initiative, through no fault of the employee, but not to dismissal at the employer’s will, as had been the case with the first applicant (see paragraph 70 above).
212. The Court’s task is not to review the consistency of the Lithuanian legislation in the abstract (see, mutatis mutandis, Parrillo v. Italy [GC], no. 46470/11, § 191, ECHR 2015). Having regard to the reasons given by the Vilnius District Court, and also taking note of the Government’s arguments concerning the primacy of the Labour Code over conflicting legal instruments, the Court finds that the way in which the conflict between the two legal provisions was resolved in the applicants’ case was not manifestly erroneous or arbitrary (see, mutatis mutandis, Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013). Therefore, the Court is not persuaded that, in the circumstances of the present case, the existence of the said conflict violated their rights under the Convention.
(γ) Whether a trade union’s consent must be required for the dismissal of one of its members
213. The applicants submitted that dismissing an employee who was a member of the trade union’s board without its consent and after interference on the part of a public authority (the SLI) was contrary to the trade union’s freedom to form its own governing bodies (see paragraph 159 above).
214. The Court reiterates that Article 11 of the Convention does not secure any particular treatment of trade unions or their members and leaves each State a free choice of the means to be used to secure a trade union’s freedom to protect the occupational interests of its members (see Ognevenko v. Russia, no. 44873/09, § 56, 20 November 2018, and the cases cited therein). It also reiterates that the Contracting States enjoy a wide margin of appreciation as to how trade union freedom and the protection of the occupational interests of union members may be secured (see the relevant general principles in paragraph 201 above).
215. In the Court’s view, Article 11 of the Convention cannot be interpreted as requiring the Contracting States to provide in their domestic law that a member or a leader of a trade union cannot be dismissed unless that trade union grants its consent. It notes that no such requirement is stipulated by the relevant ILO conventions either, and that ILO Recommendation no. 143 refers instead to “a requirement of consultation with, an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative becomes final” (see paragraph 140 above). The Court also takes note of the Government’s submissions, which were not disputed by the applicants, regarding the wide variety of models existing in different States aimed at protecting employees from dismissal on the grounds of their trade union activities (see paragraphs 180 and 181 above); it also notes the historical background behind the choice made by the Lithuanian legislature when adopting the Labour Code of 2016 to make the dismissal of a trade union member conditional on the consent of the SLI rather than the trade union (see paragraphs 172-178 above).
216. The applicants also challenged the SLI’s competence and impartiality, but the Court considers that those arguments should be addressed when examining whether that procedure was effective in the applicants’ case. Be that as it may, it considers that the fact that the consent of the trade union (the second applicant) was not required in order for the employer to be able to dismiss the first applicant was not in and of itself contrary to the applicants’ rights, as guaranteed by the Convention.
(δ) The need to institute two sets of court proceedings
217. The applicants also complained about the need to institute two separate sets of proceedings – administrative and civil. They argued that such duality had unnecessarily prolonged the process and had precluded both courts from assessing the entirety of the relevant circumstances (see paragraph 163 above).
218. In view of the wide margin of appreciation enjoyed by the Contracting States when securing trade union freedom under Article 11 of the Convention (see the relevant general principles, as outlined in paragraph 201 above), the Court considers that it is not its role to determine which domestic courts should examine disputes relating to union rights, nor how many sets of proceedings the resolution of such disputes should take. It has held, within the context of Article 6 § 1 of the Convention, that it is the States’ responsibility to organise their legal systems in such a way as to guarantee the right of everyone to obtain a final decision on disputes concerning civil rights and obligations within a reasonable time (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 142, 29 November 2016) or to avoid the adoption of discordant judgments (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 55, 20 October 2011). Accordingly, the Court considers that the fact that the various issues relating to the first applicant’s dismissal were examined in two sets of domestic proceedings was not per se incompatible with the requirements of the Convention, as long as it did not unnecessarily prolong the proceedings and did not preclude the applicants’ main arguments from being duly examined by the courts.
219. In the present case, the applicants did not raise the issue of the length of proceedings before the domestic authorities, and the Court sees no need to examine it of its own motion. As to their complaint that the courts did not adequately address their arguments, the Court will examine it when assessing the effectiveness of the administrative and civil proceedings in respect of the instant case. However, in so far as the applicants complain about the duality of the proceedings as such, the Court finds that that duality cannot be considered to be contrary to the requirements of the Convention.
(ii) Effectiveness of the domestic proceedings
220. The Court now turns to the domestic proceedings – firstly, the administrative proceedings before the SLI and the administrative courts, and secondly, the civil proceedings before the courts of general jurisdiction. It will examine whether in both those sets of proceedings the applicants were accorded real and effective protection against the alleged violations of their rights.
(α) Administrative proceedings
‒ Procedure before the SLI
221. The applicants contended that the SLI was generally biased in favour of employers. To that effect, they referred to publicly available statistics which showed that the SLI had granted employers’ requests to be allowed to dismiss employees’ representatives or to worsen their working conditions in over 80% of cases (see paragraph 133 above). However, the Court notes that the decisions taken by the SLI are not made public and it has not been able to examine them. As a result, it does not have sufficient information to determine whether the statistics indeed reveal a bias on the part of the SLI, as submitted by the applicants, or whether they should be interpreted as suggested by the Government, namely, as demonstrating that employers in general do not seek to dismiss employees on the grounds of their trade union activities (see paragraph 185 above). Whatever the case may be, the Court considers that it is not required to decide on this issue, as in the present case there were a number of other concerns with regard to the procedure before the SLI.
222. The Court observes that the procedure was initiated by the first applicant’s employer, who lodged a request with the SLI on the same day as that on which it notified the first applicant of the intention to dismiss him under Article 59 of the Labour Code (see paragraphs 13 and 16 above). The applicants were given five working days – the minimum provided by law – to present their opinions (see paragraphs 20 and 111 above). While it is not the role of the Court to assess the time-limit provided by the law in the abstract, it observes that the company’s request was rather detailed and referred to a number of events dating from between 2015 and 2017 (see paragraphs 16-19 above). It also notes that the applicants asked the SLI to extend the time-limit but that their request was refused. Accordingly, the Court has reasons to doubt whether the applicants were given adequate time to prepare their response to the arguments presented by the company.
223. Moreover, the Court shares the position of the applicants that, while the Labour Code explicitly required them to provide an “opinion” on the Employer’s request, the SLI in its decision dismissed their submissions as being based on “subjective perceptions” and lacking in evidence (see paragraphs 29 and 162 above). It reiterates that the Convention does not lay down any rules on the admissibility or probative value of evidence or on the burden of proof, which are essentially a matter for domestic law (see Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, 27 April 2000, and the cases cited therein). Accordingly, it is not the role of this Court to decide what standard of proof should be applicable in the procedure before the SLI. However, it is of the view that the discrepancy between the text of the law and the reasoning of the SLI resulted in a lack of clarity for the applicants with regard to the threshold that their submissions were expected to meet.
224. The Court further notes that the SLI’s reasoning was brief and that the applicants’ arguments concerning alleged discrimination were addressed in a cursory manner (see paragraph 29 above), as acknowledged by the Government (see paragraph 188 above). It also takes note of the applicants’ submission that the SLI had admitted to not having any methodology for assessing whether the reasons given by the employer were actually related to the employee’s trade union activities (see paragraph 160 above).
225. Lastly, the Court cannot disregard the fact that the applicants were not notified of the decision taken by the SLI (see paragraph 30 above). Despite the fact that the request was lodged with the SLI by AB Amber Grid, its decision clearly affected the rights of the applicants – particularly those of the first applicant, whose dismissal was conditional on the SLI’s consent. Moreover, in view of the fact that the SLI granted the company’s request, it was the first applicant and not the company who had a legal interest in appealing against that decision before the courts. Therefore, timely notification of the decision was crucial in order for him to have a clear, practical and effective opportunity to challenge it (see, mutatis mutandis, Stichting Landgoed Steenbergen and Others v. the Netherlands, no. 19732/17, § 45, 16 February 2021, and the cases cited therein).
226. In the light of all the above circumstances taken together, the Court finds that during the procedure before the SLI the applicants were not accorded sufficient procedural guarantees to be able to effectively challenge the company’s request.
227. That being so, the Court observes that the decision of the SLI was subsequently examined by the administrative courts, which had full jurisdiction over the matter, including the power to annul the said decision. Thus, the Court should find no violation of the Convention if it is satisfied that the shortcomings identified in the procedure before the SLI were remedied in the course of the judicial review undertaken by the administrative courts (see, mutatis mutandis, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 132, 6 November 2018). It will therefore examine whether that was done in the present case.
‒ Proceedings before the administrative courts
228. The role of the administrative courts was limited to examining whether the first applicant’s trade union activities had been the decisive factor in the decision of AB Amber Grid to dismiss him and whether the company’s request contained relevant reasons that were unrelated to those activities. In line with the relevant domestic case-law, the administrative courts were not required to determine whether the reasons indicated by AB Amber Grid complied with the law or whether they had a sufficient factual basis, as that determination would be made in the subsequent civil proceedings (see paragraphs 43 and 127 above).
229. The applicants argued that the administrative courts had failed to adequately examine their complaint concerning discrimination against the first applicant on the grounds of his trade union activities. In particular, they submitted that the courts had failed to respect the rules regarding the distribution of the burden of proof and had required the victim of alleged discrimination (namely, the first applicant) to prove that discrimination had occurred, instead of shifting the burden onto his employer (see paragraph 164 above).
230. As regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment between persons in relevantly similar situations, it is for the Government to show that it was justified (see Savickis and Others v. Latvia [GC], no. 49270/11, § 187, 9 June 2022, and the cases cited therein). It has applied this rule in the context of alleged anti-union discrimination, finding that once the applicants had demonstrated a prima facie case of discrimination, the burden of proof was to be shifted to the respondent, and the employer, usually having control over relevant evidence, had to demonstrate the existence of legitimate grounds for the applicants’ dismissal (see Zakharova and Others v. Russia, no. 12736/10, § 43, 8 March 2022). The Court notes that this approach is also in line with the position of the European Committee of Social Rights and the ILO (see paragraphs 135 and 139-141 above).
231. Turning to the proceedings before the administrative courts, the Court observes that they did not at any point specify how the burden of proof was to be distributed. The Government contended that, owing to the nature of the labour law, each party was required to substantiate the circumstances on which it wished to rely (see paragraph 188 above), thereby appearing to acknowledge that the applicants had been required to prove their claims of discrimination beyond the prima facie threshold. The Court also notes that the Lithuanian Supreme Court has held that the Law on Equal Opportunities, including the rules regarding the distribution of the burden of proof enshrined therein, was not applicable in cases of alleged anti-union discrimination (see paragraphs 128-130 above). That case-law was invoked by the SLI (see paragraph 53 above), but the administrative courts did not comment on it in any way and it is not clear from their decisions whether they followed the Supreme Court’s approach. In such circumstances, the Court considers that assessing whether the Supreme Court’s decision was compatible with the requirements of the Convention is beyond the scope of the present case.
232. Be that as it may, the Court observes that the Vilnius Regional Administrative Court addressed in detail the applicants’ arguments concerning the alleged discrimination against the first applicant on the grounds of his trade union activities. That court took into account the first applicant’s role in the collective bargaining process and the impact of his dismissal on that process; it rejected the first applicant’s submission that he had never received any criticism of his work before he had joined the applicant union; moreover, it explained why it considered irrelevant the fact that some of the first applicant’s colleagues had a positive opinion of him or that two other union members had left their jobs (see paragraph 46 above). Those findings were subsequently endorsed by the Supreme Administrative Court (see paragraph 58 above). Accordingly, the Court is satisfied that the administrative courts thoroughly addressed the applicants’ main arguments concerning alleged discrimination and provided relevant and sufficient reasons for rejecting them.
233. In their submissions before the Court, the applicants referred to a number of additional facts which, in their view, demonstrated the effect of the company’s interference with the applicant union’s activities, such as its decreasing membership and the fact that many members of the union had left the company (see paragraphs 169 and 170 above).
234. The Court observes that cases in which it has previously found that applicants had established a prima facie case of anti-union discrimination concerned a wide range of measures taken by the employer against multiple members of the trade union, including their reassignment to special work teams with limited opportunities, dismissals subsequently found to be unlawful by the courts, reductions in earnings, disciplinary sanctions and refusals to reinstate employees following court judgments (see Danilenkov and Others, cited above, § 130), or reduction of working hours and repeated attempts to dismiss them (see Zakharova and Others, cited above, §§ 39-42).
235. However, the Court is unable to find any indication of comparable reprisals taken by AB Amber Grid against members of the applicant union in the present case. It takes note of the Government’s submissions that, despite the first applicant’s dismissal, the collective bargaining continued and a new collective agreement was reached (see paragraph 182 above). Although the applicants contended that that agreement had been signed under pressure from the company and was less favourable to the employees than the previous one (see paragraph 171 above), the contents of the collective agreement were not the subject matter of either the domestic proceedings in question or the present case before the Court, and the Court is therefore unable to assess them. Furthermore, there are no grounds to find that the membership of the applicant union shrank dramatically (see paragraphs 169 and 183 above; compare and contrast Danilenkov and Others, cited above, § 130). Nor is the Court able to accept that the resignation of several employees who had been members or leaders of the applicant union was in and of itself evidence of the employer’s reprisals, especially since the majority of those employees had left on their own initiative or by mutual consent of the parties (see paragraph 169 above) and there is no indication that any of them had lodged complaints against the company or that any of the dismissals had been found unlawful by the relevant authorities (compare and contrast Zakharova and Others, cited above, § 41).
236. Accordingly, the Court is of the view that neither the individual circumstances of the first applicant’s dismissal nor the company’s general attitude towards the applicant union and its members were such that an independent observer could reasonably draw an inference that the first applicant’s trade union activities could have played a principal role in his employer’s decision to dismiss him (compare and contrast Zakharova and Others, cited above, § 42). The Court therefore concludes that the applicants failed to establish a prima facie case of discrimination against the first applicant on the grounds of his trade union membership and related activities.
237. In such circumstances, the Court considers that it is not necessary to determine whether the administrative courts followed the principles of the distribution of the burden of proof established by the Court’s case-law, because in any event, the applicants failed to present a prima facie case of discrimination, and there were no grounds to shift the burden onto the employer.
238. In the light of the foregoing and having examined the material in its possession, the Court is satisfied that in the proceedings before the administrative courts the applicants had a real and effective possibility to present their arguments concerning alleged discrimination and that those arguments were adequately addressed by the administrative courts.
(β) Civil proceedings
239. After the first applicant was dismissed, he instituted proceedings before the courts of general jurisdiction. In those proceedings the courts examined whether the dismissal had complied with Article 59 of the Labour Code and whether the company had provided relevant and sufficient reasons for dismissing the first applicant.
‒ Whether the dismissal was in accordance with the law
240. The applicants submitted that the dismissal had not been in accordance with the law. In particular, they argued that the domestic courts had erred when finding that Article 59 of the Labour Code was applicable to AB Amber Grid – the applicants submitted that the Company was owned by the State and therefore excluded from the scope of the application of that legal provision (see paragraph 168 above).
241. The domestic courts rejected the applicants’ interpretation of Article 59 of the Labour Code. They found that that provision excluded from the scope of its application, among others, State enterprises – that is to say enterprises that had been established using State assets or transferred to the State in accordance with a procedure provided by law (see paragraphs 107 and 118 above). By contrast, AB Amber Grid was a joint-stock company, the majority of whose shares were owned by the State. It corresponded to the definition of a State-owned company under domestic law (see paragraphs 75 and 119 above). The courts held that State-owned companies, unlike State enterprises, were not prevented by the Labour Code from dismissing employees under Article 59 and that that provision should not be interpreted expansively (see paragraphs 75 and 83 above). The Court observes that, at the time when the applicants’ case was decided by the domestic courts, the same conclusion had already been reached by the appellate court in another case involving the same company (see paragraph 121 above).
242. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court is not a court of appeal from the national courts and it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Ramos Nunes de Carvalho e Sá, cited above, § 186, and the cases cited therein). It considers that the interpretation of the domestic courts of what constitutes a State enterprise within the meaning of Article 59 of the Labour Code cannot be considered arbitrary or manifestly unreasonable and it therefore has no reason to substitute its assessment for that of the national courts (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 251, 1 December 2020, and the cases cited therein).
‒ Whether the dismissal was justified
243. The applicants furthermore argued that the courts in the civil proceedings had failed to properly assess the reasons provided by the company. The applicants considered that the dismissal had been unfounded and that the reasons provided by the company had lacked a factual basis, which indicated that the real reason for the dismissal had been the first applicant’s trade union activities (see paragraph 166 above).
244. The Court observes that, under Article 59 of the Labour Code and the relevant domestic case-law, that provision entitles employers to exercise a certain discretion when dismissing employees. However, that discretion is not unlimited. In particular, when examining complaints lodged by dismissed employees, the courts have to assess, inter alia, whether the reasons provided by the employer actually existed, and whether they were lawful and sufficient to justify the dismissal; the burden of proof lies with the employer (see paragraph 125 above).
245. In the present case, the courts found that AB Amber Grid sought to dismiss the first applicant for reasons related to his behaviour at work, his poor relations with colleagues and contractors and insufficient leadership and management skills. They noted that the company – by way of illustrating those reasons – had provided concrete examples of situations in which the first applicant had failed to properly carry out certain tasks; those examples had been confirmed by testimony given by his supervisors and by email correspondence (see paragraphs 71-73 and 80 above). The Court reiterates that issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. It should not act as a fourth-instance body and will therefore not question the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, mutatis mutandis, De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017, and the cases cited therein). It is satisfied that the domestic courts carried out an adequate assessment of the reasons provided by the company for the first applicant’s dismissal and that their decisions were not arbitrary or manifestly unreasonable.
246. Moreover, the Court takes note of the Government’s submissions concerning the procedural guarantees accorded to the applicants during the civil proceedings (see paragraph 192 above). Indeed, there is no indication in the material in the Court’s possession that the domestic courts failed to take into account any important evidence or that the applicants were not given an adequate opportunity to present their case.
247. Accordingly, the Court has no reason to doubt that, in view of the relevant domestic case-law concerning Article 59 of the Labour Code and the assessment carried out by the courts in the case at hand, in the civil proceedings there were sufficient safeguards against any possible unjustified dismissal of the first applicant on the grounds of his trade union activities (see paragraphs 206-209 above).
(iii) Conclusion
248. In the light of the foregoing, the Court has no reason to consider that the domestic legal framework was inadequate to protect the applicants from the alleged discrimination on the grounds of trade union activities (in respect of the first applicant) or the alleged violation of the right to freedom of association (in respect of the second applicant). As to the effectiveness of the domestic proceedings, although the procedure before the SLI fell short of the relevant Convention requirements, those shortcomings were subsequently remedied by the courts, and in both administrative and civil proceedings the applicants were accorded real and effective protection against the alleged violations of their rights.
249. Accordingly, there has been no violation of the first applicant’s rights under Article 14 of the Convention read in conjunction with Article 11 and no violation of the second applicant’s rights under Article 11 of the Convention.
OTHER ALLEGED VIOLATIONS OF THE CONVENTION250. The applicants complained under Article 4 § 2 of the Convention that on several occasions AB Amber Grid had forced the first applicant to work in unsafe conditions or to act against the relevant regulations and that he had been dismissed for refusing to do so.
251. Having regard to all the material in its possession, and in so far as this complaint falls within its jurisdiction, the Court finds that there is no appearance of a violation of the provision invoked. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the first applicant’s complaint concerning Article 14 of the Convention read in conjunction with Article 11 and the second applicant’s complaint concerning Article 11 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been no violation of the first applicant’s rights under Article 14 of the Convention read in conjunction with Article 11;Holds that there has been no violation of the second applicant’s rights under Article 11 of the Convention.Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Arnfinn Bårdsen
Registrar President