AS TO THE ADMISSIBILITY OF
Application No. 12259/86
by Oswald DYRWOLD and others
against Sweden
The European Commission of Human Rights sitting in private
on 7 September 1990, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
Sir Basil HALL
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 July 1986
by Oswald Dyrwold against Sweden and registered on 4 July 1986 under
file No. 12259/86;
Having regard to the written observations submitted by the
Government on 19 December 1989 and the applicants' observations of
21 March 1990.
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicants are
1. Oswald Dyrwold, a Swedish citizen born in 1941 and resident
in Gothenburg,
2. Oswald Dyrwolds Bygg & Bil Aktiebolag, a limited liability
company (hereinafter referred to as "the company"),
3. Fria Företagares SamOrganisation - FFSO (Association of
Independent Businessmen), and
4. Fria Arbetsgivares Förening - FAF (Association of Independent
Employers).
The applicants are represented by Mr. Bertil Grennberg, a patent
attorney practising in Stockholm.
The company (the second applicant) is owned and run by the first
applicant, who is assisted by two employees.
The applicant company is a member of FFSO (the third
applicant). The first applicant is a member of FFSO's consultative
committee on building. He is also a member of FAF (the fourth
applicant).
FFSO and FAF are directed by Bengt Zachrisson who, according to
the applicants, is regarded as the black sheep in Swedish labour
relations; he is not popular with the Swedish Trade Union
Confederation (Landsorganisationen, LO) and the Swedish Employers'
Confederation (Svenska Arbetsgivareföreningen, SAF) which are the two
dominating organisations.
As from 23 February 1981 the company entered into a collective
agreement (kollektivavtal) with the Swedish Building Workers' Union
(Svenska Byggnadsarbetareförbundet). The agreement is a so called
accessory agreement (hängavtal). Its first clause refers to the
collective agreement in force at any time between the Swedish Building
Industries' Federation (Svenska Byggnadsindustriförbundet) and the
Swedish Building Workers' Union. This collective agreement applies
as amended in the accessory agreement.
The Building Workers' Union instituted proceedings before the
Labour Court (arbetsdomstolen) against the applicant company alleging
that the company had violated the provisions on inspection of
salary conditions in Section 7 of the accessory agreement and the
provisions on settlement of disputes in Section 11 of the collective
agreement. Section 7 of the accessory agreement provided that a local
branch of the Building Workers' Union had the right to inspect salary
conditions. The Building Workers' Union alleged that the applicant
company had failed to appear at a meeting agreed upon at the company's
premises on 11 January 1985 for the inspection of the company's books.
Further, the company had failed to appear at a negotiation meeting
convened by the local branch for 28 February 1985 and to a central
negotiation meeting, convened by the Union for 21 May 1985, in breach of
Section 11 of the collective agreement.
By judgment of 15 January 1986 the Labour Court found that the
second applicant had violated the provisions of the accessory
agreement and the collective agreement as alleged by the Swedish
Building Workers' Union and ordered the second applicant to pay to
the Workers' Union general damages (allmänt skadestånd) in the amount
of 10,000 SEK and to pay legal costs of 14,255 SEK. In the judgment
reference is made to Bengt Zachrisson and his actions when
representing the second applicant in the negotiations with the local
branch of the Building Workers' Union.
The Court was composed of three professional judges and four
lay assessors. The four lay assessors were:
- Carl-Erik Ewers, Head of Division at the Employers'
Federation of Swedish Forest Industries (Sveriges Skogsindustri-
förbund), a federation affiliated to SAF.
- Erik Söderbäck, now retired, formerly a director at SAF.
- Bert Lundin, former president of the Swedish Metal
Workers' Union (Svenska Metallindustriarbetareförbundet) which is
affiliated to LO.
- Hans Billström, the president of the Hotel and Restaurant
Workers' Union (Hotell- och Restauranganställdas förbund) affiliated
to LO.
These lay assessors had been appointed by the Government after
nomination by SAF and LO respectively.
Relevant domestic law
The provisions which regulate proceedings in the Labour Court
and the composition of the Labour Court are laid down in the 1974
Litigation in Labour Disputes Act ("the 1974 Act"; lagen om rättegången
i arbetstvister).
Labour Court procedures are based on the procedural rules
which apply in the ordinary courts to actions amenable to out of court
settlements. The relevant provisions are to be found in the Code of
Judicial Procedure (rättegångsbalken). In view of the type of cases
involved and the special conditions under which the Labour Court
operates, certain regulations which deviate from the provisions of the
Code of Judicial Procedure are included in the 1974 Act. Thus, the
procedural rules under the Code of Judicial Procedure apply, unless the
1974 Act provides otherwise.
The Labour Court is composed of professional judges and of
members representing the employers and the employees with individual
and equal voting rights for each participating member. When more than
one member of the Court is to examine a case, an equal number of
employer representatives and employee representatives participate.
Organisations considered to best represent conditions in the
Swedish labour market have the right to propose employer and employee
members of the Court. The decisive factor in this context is not
merely the size of the organisation, that is the number of its
members, but also its influence on legal developments on the labour
market through the negotiation of collective agreements or in other
ways.
Employer and employee members of the Court participate in the
examination of cases, not as representatives of the parties appearing
before the Court, but to provide the Labour Court with expert knowledge
of the legal opinions and views which are formed on the labour market
at large.
Members of the Labour Court are appointed by the Government
for a period of three years. They have equal status in every respect.
Also the members representing special interest groups on the labour
market thus swear the judicial oath, in accordance with the Code of
Judicial Procedure Chapter 4 Section 11, in the same way as
professional judges and lay assessors in the ordinary courts. Under
this oath, they are obliged to render judgment in accordance with
existing law, to be independent and impartial and to resist influence
by external pressures of any kind.
According to Chapter 11 Section 5 of the Instrument of
Government (regeringsformen), permanently appointed judges cannot, in
principle, be dismissed. This rule does not apply to judges in the
Labour Court, but they cannot be dismissed during the period for which
they are appointed.
The general regulations in Chapter 4 Section 13 of the Code of
Judicial Procedure regarding disqualification or challenge due to
conflict of interests are applicable also in the Labour Court. These
rules state, for example, that anyone (personally or as a
representative of a company, union etc.) who is a party in the dispute,
or otherwise concerned in the dispute, or who can expect significant
advantage or damage from the outcome of the dispute, must not
participate in the examination of a case. The same applies to someone
who is opposed to or on unfriendly terms with a party in the dispute,
to someone who has been connected with the dispute in another capacity
and to someone who has represented one of the parties. In addition,
there is a general provision regarding conflict of interests, where
special circumstances exist which may impair confidence in the
member's impartiality.
As applied to the Labour Court, the disqualification or
challenge rules mean that a member of the board of an employer or
employee association may not participate in a case where the
association is one of the parties involved or has intervened in the
case. The rules regarding persons who can expect significant
advantage or damage from the outcome of the case or the regulation
regarding other special circumstances which may impair confidence in
the impartiality of the member, have, in view of the Court's
structure, only had a very restrictive application. For example, in
practice, members representing the head organisations or
associations/unions of either the employers or the employees
participate in cases concerning the interpretation of central
agreements which are the results of negotiations where the members
themselves have formed part of the central negotiating delegations on
either side.
COMPLAINTS
1. The applicants allege that in view of its composition the
Labour Court was not an independent and impartial tribunal as required
by Article 6 of the Convention. The lay assessors, who were
affiliated to SAF and LO, were in fact in conflict with the
applicants. Furthermore the party opposing the applicant company was
affiliated to LO.
The applicants also complained that, contrary to Article 6, the
judgment was not pronounced publicly.
2. The applicants allege that the facts of the case also involve
a violation of Article 11 of the Convention.
3. The applicants finally invoke Articles 13 and 17 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 July 1986 and registered on
4 July 1986.
On 4 September 1989 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application limited to Article 6 of the Convention.
The Government's observations were received by letter dated
19 December 1989 and the applicants' observations were dated
21 March 1990.
THE LAW
1. In their written observations, the applicants state that they
do not pursue their complaint under Article 6 para. 1 (Art. 6-1) of
the Convention that the judgment was not pronounced publicly. In
these circumstances and having regard to its decision on
admissibility in the Helmers case (No. 11826/85, Dec. 9.5. 89, to be
published in D.R.) the Commission finds no reason to examine this
complaint.
2. The applicants allege violations of Articles 6 (Art. 6) and
11 (Art. 11) of the Convention on the ground that the Labour Court was
not an independent and impartial tribunal and the choice of lay
assessors from a limited number of employers' and employees' unions
involved discrimination against the applicants. The applicants also
invoke Articles 13 (Art. 13) and 17 (Art. 17) of the Convention.
Article 6 para. 1 (Art. 6-1) first sentence of the Convention,
insofar as relevant, reads:
" In the determination of his civil rights and
obligations..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law."
Article 11 (Art. 11) of the Convention, insofar as relevant,
reads:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the
right to form and 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..."
3. The Government do not object to the admissibility of the
application under Article 26 (Art. 26) of the Convention. They
submit, however, that the third and fourth applicants cannot be
regarded as "victims" within the meaning of Article 25 (Art. 25) of
the Convention as they are not affected by the alleged violations.
In other respects they submit that the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
The applicants state that, as a result of the Labour Court's
judgment in this case and in the case of Stallarholmen (No. 12733/88)
small employers have been dissuaded from joining the third and fourth
applicants which, consequently, have ceased to exist.
The Commission observes that the applicants' complaints are
based on the Labour Court's judgment. Only the second applicant was a
party to the proceedings before the Labour Court. The second
applicant is owned and run by the first applicant. These applicants
can therefore claim to be "victims" of the alleged violations within
the meaning of Article 25 (Art. 25) of the Convention.
As regards the third and fourth applicants, they were not
parties to the proceedings. It is true that, in the Court's judgment,
reference is made to activities of Bengt Zachrisson of FFSO as the
representative of the second applicant in the negotiations with the
local branch of the Building Workers' Union. This is however not
sufficient for giving the third and fourth applicants the status of
"victims" within the meaning of Article 25 (Art. 25) with regard to
the alleged violations. Having regard to the documents submitted
and the parties' written observations, the Commission finds that the
third and fourth applicants cannot be regarded as "victims" under this
provision.
Their complaints must therefore be rejected as being
incompatible ratione personae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2).
4. As to the first and second applicants' complaint that the
Labour Court was not an "independent and impartial tribunal", the
Commission recalls the following case-law.
When examining whether a specific body can be considered
"independent", regard must be had, inter alia, to the manner of
appointment of its members and their term of office, to the existence
of guarantees against outside pressure and to the question whether
the body presents an appearance of independence. As to the question
of impartiality, two tests must be made: a subjective test under which
it is sought to establish the personal conviction of a given judge in
a given case, and an objective test, aimed at ascertaining whether the
judge offered guarantees sufficient to exclude any legitimate doubt in
this respect (cf. Eur. Court H.R., Langborger judgment of
22 June 1989, Series A no. 155, p. 16, para. 32).
In the Langborger case (loc. cit.), the Commission and the Court
were seized with an issue of a similar nature regarding the Swedish
Housing and Tenancy Court (bostadsdomstolen) where the lay assessors
had been nominated by the dominating unions on the housing and rent
market and where the dispute before the Housing and Tenancy Court
concerned the question whether a negotiation clause in the applicant's
lease should be retained. The European Court of Human Rights stated,
inter alia, as follows (above-mentioned Langborger judgment, p. 16,
paras. 34-35):
"34. Because of their specialised experience, the lay
assessors, who sit on the Housing and Tenancy Court with
professional judges, appear in principle to be extremely
well qualified to participate in the adjudication of
disputes between landlords and tenants and the specific
questions which may arise in such disputes. This does not,
however, exclude the possibility that their independence and
impartiality may be open to doubt in a particular case.
35. In the present case there is no reason to doubt the
personal impartiality of the lay assessors in the absence of
any proof.
As regards their objective impartiality and the question
whether they presented an appearance of independence,
however, the Court notes that they had been nominated by,
and had close links with, two associations which both had an
interest in the continued existence of the negotiation
clause. As the applicant sought the deletion from the lease
of this clause, he could legitimately fear that the lay
assessors had a common interest contrary to his own and
therefore that the balance of interests, inherent in the
Housing and Tenancy Court's composition in other cases, was
liable to be upset when the court came to decide his own
claim.
The fact that the Housing and Tenancy Court also included
two professional judges, whose independence and impartiality
are not in question, makes no difference in this respect."
In the present case, the applicants do not question the
personal impartiality of the lay assessors. In the absence of proof,
the Commission finds no reason to doubt the personal impartiality of
the lay assessors.
As regards the objective impartiality, the Government submit
that the present case can be distinguished from the Langborger case
although the Labour Court and the Housing and Tenancy Court have many
features in common. They point out that there is no reason for the
applicants to fear that the lay assessors had a common interest
opposed to the applicants' interest. The Government point out that
here the dispute concerned the question whether or not the first
applicant's company had violated the rules of the accessory agreement
concerning the right to inspect salary conditions and the provisions
on settlement of disputes by failing to appear at a meeting for the
inspection of the company's books and at local and central negotiation
meetings. When examining this issue the Labour Court had to determine
a question which primarily was one of evaluating evidence, namely
whether the parties had agreed, as maintained by the second applicant,
to cancel a meeting on 11 January 1985 which on a previous occasion
they had decided to hold. Neither this question nor the other
questions concerned directly involved the lay assessors. Neither did
the two organisations SAF and LO have any specific interest in the
outcome of the case. There was no interpretation to be made of the
collective agreement in question which was of a fundamental nature
and the outcome of which was of any importance to the organisations
represented by the lay assessors. Furthermore the obligations in
question under the collective agreement in principle also follow from
Sections 10 and 19 of the 1976 Act on the Joint Regulation of Working
Life (lagen om medbestämmande i arbetslivet) which, however, was not
invoked by the Swedish Building Workers' Union in the case. For these
reasons, the Government submit that the balance of interests, inherent
in the Labour Court's composition, was not upset when the Court came
to decide the claim against the first applicant's company.
As to the applicants' argument that they had no representative
on the Court, whereas the opposing party had, the Government state
that the lay assessors are not to be seen as representatives of the
parties in the case but as independent judges in their own capacity.
A system where each party in every case would have its own
representative on the Court would have an effect, which would be
contrary to the one that is aimed at, i.e. the establishment of an
impartial tribunal with an inherent balance of different interests.
For the same reasons, the fact that there has been a press libel case
between Bengt Zachrisson on the one hand and the publisher of the SAF
newspaper on the other, is irrelevant for the question of the
impartiality of the lay assessors in the case between the Building
Workers' Union and the second applicant before the Labour Court.
The applicants submit in reply that the Court was not
independent and impartial for the following reasons.
The applicants do not contest in general the composition of
the Labour Court in cases where an employer belonging to SAF is
involved in a dispute with an employee belonging to LO. However, in
the present case the first and second applicants could legitimately
fear that their affiliation to FFSO and FAF would be to their
detriment. The dispute before the Labour Court was brought by the
Swedish Building Workers' Union who had its interests represented on
the Court but the first and second applicants had no corresponding
representatives. In regard to the animosity between FFSO and FAF, on
the one hand, and SAF, on the other, the applicants recall that the
case was brought before the Labour Court in June 1985 and in October
the same year the SAF weekly magazine published an article against
FAF. Eventually the SAF magazine has also used the Labour Court
judgment in the present case to dissuade employers from joining FAF by
publishing an article where the blame for the second applicant's loss
is put on FAF. There was thus not a proper balance of interests on the
Court and the applicants could therefore reasonably fear that the
Court was not impartial. In the present case, SAF and LO had a common
interest in getting rid of the newcomer on the labour market and LO
had an interest in obtaining the damages claimed whereas SAF had an
interest in maintaining its monopoly and in showing to employers that
they had no choice but to join SAF. These common interests make the
case similar to the Langborger case.
The Commission considers that, in accordance with the principles
developed in the Langborger case, the decisive issue is whether the
balance of interests in the composition of the Labour Court was upset
and, if so, whether any such lack of balance could make the Court lack
the requirements of impartiality and independence in the determination
of the particular dispute before the Court. This could be so either
if the lay assessors had a common interest contrary to the applicants
or if their interests, although not common, were such that they were
nevertheless opposed to those of the applicants.
In this respect the Commission recalls that in the Langborger
case the applicant had sought the deletion of a clause from his
lease, a clause which had previously been agreed upon between
organisations which had close links with the organisations which had
nominated the lay assessors sitting in that applicant's case. The
dispute in that case had accordingly a clear link with the interests
of the organisations. Consequently, both sides represented by the lay
assessors could be said to have a common interest opposed to the
applicant's claim.
In the present case, the dispute before the Labour Court was
of a different nature. It was whether the second applicant had
violated certain provisions in the accessory agreement and the
collective agreement entered into by the second applicant with the
Swedish Building Workers' Union and on that ground was liable to pay
damages. The nature of this dispute is such that none of the
organisations, LO or SAF, could objectively have any other interest
than to see to it that the agreements which had been concluded were
respected and correctly interpreted. This interest cannot be
contrary to that of the applicants.
The Commission notes the applicants' argument that they could
fear that the lay assessors nominated by LO would be favourable to the
claims made by the Workers' Union whereas the second applicant could
not be said to have correspondingly favourable lay assessors on the
Court because they were not affiliated to SAF but to FFSO and FAF
which were in conflict with SAF.
The Commission is, however, not persuaded by the argument that
the conflict between SAF, on the one hand, and FFSO and FAF, on the
other hand, would as such imply that the lay assessors nominated by
SAF had a common interest with the lay assessors nominated by LO or an
interest contrary to those of the first and the second applicants in the
determination of the particular dispute before the Labour Court.
To accept the applicants' remaining argument would, in the
Commission's opinion, be tantamount to considering that, in cases
where the lay assessors have been nominated by LO and SAF, the Labour
Court would fail to meet the condition "independent and impartial
tribunal" in all disputes where only one of the parties is affiliated
to LO or SAF. Although this issue was not addressed in the Langborger
judgment, the Commission considers that it would be contrary to the
considerations underlying the statement by the European Court in
para. 34 (see quotation above) of the Langborger judgment to accept
such a proposition.
In sum, the Commission considers that, contrary to the
situation in the Langborger case, there cannot be said to have existed
any common interest between the lay assessors in the present case. The
applicants invoke elements which in their view cast some doubt on the
independence and impartiality of the lay assessors. The Commission is
nevertheless of the opinion that it cannot be held that the applicants
could legitimately fear that the lay assessors had interests contrary
to those of the applicants or that the balance of interests was upset
to such an extent that they did not satisfy the conditions of
independence and impartiality.
Consequently, the Commission finds no indication of a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicants' allegation of a violation of Articles 11
(Art. 11) and 17 (Art. 17) of the Convention is largely based on the
same grounds as those examined above under Article 6 para. 1 (Art. 6-1)
of the Convention.
The Commission finds no indication of a violation of these
provisions. It follows that in this respect the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
6. Finally, the applicants allege a violation of Article 13
(Art. 13) of the Convention.
Article 13 (Art. 13) requires a remedy in domestic law only in
respect of a claim of a violation which can be regarded as "arguable"
(cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,
Series A no. 131, p. 23, para. 52). Having found above that the
applicants' claims of violations of the Convention are manifestly
ill-founded, the Commission similarly considers that the these claims
cannot be regarded as "arguable" for the purpose of Article 13
(Art. 13) of the Convention. Consequently, Article 13 (Art. 13) of
the Convention does not entitle the applicants to a remedy in domestic
law.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy