AS TO THE ADMISSIBILITY OF
Application No. 15533/89
by Annika ENGLUND and Others
against Sweden
The European Commission of Human Rights sitting in private
on 8 April 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
E. KONSTANTINOV
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 1 July 1989
by Annika ENGLUND and others against Sweden and registered on 20
September 1989 under file No. 15533/89;
Having regard to :
- reports provided for in Rule 47 of the Rules of
Procedure of the Commission;
- the observations submitted by the respondent Government
on 1 April 1993 and the observations in reply submitted
by the applicants on 28 June 1993;
- the parties' oral submissions at the hearing on 8 April
1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Ms. Annika Englund, a hairdresser, born
in 1967 and residing at Tingstäde, Ms. Åsa Englund, a veterinary
assistant, born in 1964 and residing at Umeå, Ms. Nina Gynning,
born in 1971 and residing at Lärbro, Ms. Karin Mårs, a tailor,
born in 1966 and residing at Slite. They are all Swedish
citizens. Before the Commission they are represented by Mr.
Göran Ravnsborg, Assistant Professor of Law at the University of
Lund.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
As from the summer of 1987 up to and including the summer
of 1990 the applicants were unorganised employees at an
establishment comprising the summer restaurant "Ihrebaden" at
Ihreviken, Tingstäde, and the youth hostel "Lummelunda" at
Nyhamn, Visby, both on the island of Gotland. The establishment
was owned by an unorganised employer (the applicant in
Application No. 15573/89) and had less than ten employees all of
whom were employed in the restaurant. The employees were hired
on a seasonal basis, but they had the option of being re-
employed.
The applicants' employer was not a member of any association
of restaurant employers and was therefore not bound by any
collective labour agreement (kollektivavtal) which such an
association had signed with the Hotel and Restaurant Workers'
Union (Hotell- och Restaurang-anställdas Förbund; hereinafter
"HRF"). He also refused to sign a separate, so-called substitute
agreement (hängavtal) with HRF. He referred to his objections
against the system of collective bargaining and emphasised that
his employees were paid more than a collective agreement would
have provided for them and that they themselves objected to the
signing of any agreement on their behalf.
The substitute agreement which had been proposed to the
applicants' employer was worded as follows:
(translation)
"Parties: [The applicants' employer] and [HRF]
Term of validity: From 1 July 1987 up to and including
31 December 1988, thereafter for one year at a time,
unless notice is given two months prior to the expiry
of the [agreement].
...
As from the [above] date, the most recent agreement
between [the employers' association] and [HRF] shall
be applied between [the applicants' employer and HRF].
Should [the employers' association] and [HRF]
subsequently reach a new agreement or agree to amend
or supplement the [present] agreement, [the new
agreement, amendments or supplements] shall
automatically apply as from the day on which [it or
they] [has or have] been [agreed upon].
...
1. [The employer shall] [on his employees' behalf]
subscribe to and maintain [five different] insurances
in "Labour Market Insurances"
("Arbetsmarknadsförsäkring"),... as well as other
possible insurances which [the employers' association
and HRF] might later agree upon.
2. [The employer shall] issue employment
certificates on a special form... A copy shall be sent
to [HRF].
3. [The employer shall] only employ [workers who are
members] of or [have] requested membership of [HRF].
In case of re-employment the rules in Section 25 of
the Employment Protection Act (lag 1982:80 om
anställnings-skydd) shall be applied.
4. [The employer shall] on a monthly basis deduct a
part of the salary of employed members of [HRF] which
corresponds to their membership fees, and pay [the
deducted part] to [HRF].
..."
On 16 July 1987 the applicants' employer met a
representative of HRF. Following the negotiations HRF proposed
the following agreement which was, however, not signed by the
applicants' employer:
(translation)
"Subject: The signing of a collective agreement
regarding [the restaurant] Ihrebaden ... and the
Lummelunda youth hostel.
1. Having regard to the forthcoming end of the
[season of 1987] the parties agree on the following
procedure replacing the signing of a collective
agreement.
The enterprise agrees to comply, during this
season..., with the collective labour agreement ('the
green national agreement') between the Association of
Hotel and Restaurant Employers and Others (Hotell- och
Restaurangarbetsgivare-föreningen m.fl.; hereinafter
"HRAF") and [HRF], this including the obligation to
subscribe to [certain] insurances (avtalsförsäkringar)
in "Labour Market Insurances".
2. The enterprise also agrees to [comply with] [the]
collective labour agreement ... during the next
season..., either by way of membership in the
employers' union or by signing a ... substitute
agreement..."
Following the applicant's employer's refusal to sign a
substitute agreement HRF in July 1987 placed his restaurant under
a blockade and declared a boycott against it. Sympathy measures
were taken the same month by the Commercial Employees' Union
(Handelsanställdas Förbund) and the Swedish Food Workers' Union
(Svenska Livsmedelsarbetareförbundet).
In the summer of 1988 sympathy measures were also taken by
the Swedish Transport Workers' Union (Svenska
transportarbetareförbundet) and the Union of Municipal Employees
(Kommunalarbetareförbundet). As a result the delivery of
groceries to the restaurant and the collection of refuse from it
were stopped.
In the summers of 1987 and 1988 one of the employees at
"Ihrebaden" was a member of HRF. She publicly expressed the
opinion that the industrial actions were unnecessary, as the
salary and working conditions could not be criticised.
In August 1988 the applicants, invoking the Convention,
requested that the Government prohibit HRF from continuing the
blockade and the other unions from continuing their sympathy
measures. They further requested that the Government order the
unions to pay damages, alternatively that damages be paid by the
State.
In its decision of 12 January 1989 the Government (Ministry
of Justice) stated the following:
(translation)
"The requests for a prohibition against the blockade
and the sympathy measures as well as damage liability
for the trade unions, concern a legal dispute between
private subjects. According to Chapter 11, Article 3
of the Instrument of Government, such disputes may not
be determined by any other public authority than a
court of law, except by virtue of law. There is no
provision in the law which authorises the Government
to examine such disputes. The Government, therefore,
will not examine these requests on the merits.
The claim for damages is dismissed."
The applicants asked for judicial review of the decision in
accordance with the 1988 Act on Judicial Review of Certain
Administrative Decisions (lag 1988:205 om rättsprövning av vissa
förvaltnings-beslut, hereinafter "the 1988 Act").
On 29 June 1989 the Supreme Administrative Court (Regerings-
rätten) dismissed the request, finding that the Government's
dismissal and rejection of their claims was not a decision in an
administrative matter involving the exercise of public power.
In 1989 HRF demanded that the Swedish Touring Club (Svenska
turistföreningen) discontinue its cooperation with the youth
hostel owned by the applicants' employer due to his refusal to
comply with the relevant collective agreement. HRF apparently
threatened to institute industrial actions against all other
youth hostels employing members of HRF unless the applicants'
employer was excluded from the Touring Club.
Subsequently the applicants' employer was excluded from the
Touring Club. This entailed, inter alia, that his youth hostel
was no longer mentioned in the Club's catalogue of youth hostels
in Sweden. The applicants' employer unsuccessfully contested his
exclusion in civil proceedings.
In the beginning of 1991 the applicants' employer sold the
restaurant due to his difficulties in running the business
despite the industrial actions.
On 9 November 1991 the applicants requested the Government
to support their application before the Commission.
On 12 December 1991 the Government decided not to take any
measures in respect of the request.
Relevant domestic law
a. Freedom of association and right of association
aa. Constitutional protection
According to Chapter 2, Section 1, para. 5 of the Instrument
of Government (Regeringsformen), the freedom of association
(föreningsfrihet) of every citizen is protected from infringement
by "the State or public authorities" (det allmänna). This
freedom entails the right to unite with others for public or
private purposes, but may be restricted in accordance with
Chapter 2, Section 12, subsection 1 and Chapter 2, Section 14,
subsection 2.
Under Chapter 2, Section 2 every citizen is protected from
any compulsion on the part of the State or public authorities to
belong to a political association, a religious community or any
other association for political, religious, cultural or other
opinions. No restrictions shall be placed on this right.
According to Chapter 2, Section 17 industrial actions may
be taken by a union of employees, an employer or an association
of employers, if the legislation or an agreement does not provide
otherwise.
Chapter 11, Section 3 provides that legal disputes between
private subjects shall only be settled by a court of law, unless
otherwise provided by law. There is no legal basis authorising
the Government to settle such a dispute.
bb. Other provisions
Section 7 of the 1976 Act on Co-Determination at Work (lag
1976:580 om medbestämmande i arbetslivet; hereinafter "the 1976
Act") defines the right of association (föreningsrätt) as a right
of employers and employees to belong to an organisation of
employers or employees, to take advantage of their membership as
well as to work for an organisation or for the founding of one.
The right of association shall not be violated. A violation
will occur, if anyone on the side of the employer or the employee
takes any action to the detriment of anybody on the other side
by reason of that person having exercised his right of
association, or if anybody on either side takes any action
against anybody on the other side with a view to inducing that
person not to exercise his right of association. A violation will
occur even if the action is taken in order for an obligation
towards another party to be fulfilled (Section 8, subsection 1).
Section 8 further stipulates that an organisation of
employers or employees shall not have to tolerate a violation of
its right of association encroaching upon its activities. Where
there is both a local and a central organisation, the provisions
in Section 8 shall apply for the central organisation (Section
8, subsection 2).
If the right of association is violated by the termination
of an agreement or by a provision in a collective agreement or
other contract, that act or provision shall be void (Section 8,
subsection 3).
It is the duty of an organisation of employers or an
organisation of employees to seek to prevent a member taking any
action which violates the freedom of association. Where a member
has taken such action, the organisation shall try to persuade him
to cease the action (Section 9).
An organisation of employees shall have the right to
negotiate with an employer regarding any matter relating to the
relationship between the employer and any member of the
organisation who is or has been employed by that employer. An
employer shall have a corresponding right to negotiate with an
organisation of employees (Section 10, subsection 1).
An organisation of employees shall also enjoy the right to
negotiate in relation to any organisation to which an employer
belongs. The same right shall be enjoyed by the employer's
organisation in relation to the organisation of employees
(Section 10, subsection 2).
An employer, an employee or a union infringing the 1976 Act
or a collective labour contract is liable to compensate the
damage hereby caused (Section 54).
The right of negotiation applies regardless of whether there
is a collective agreement in force between the parties. However,
the 1976 Act prohibits parties at the labour market who are bound
by a collective agreement from instituting industrial actions
while that agreement is in force (Section 41).
Employers who do not have any employees affiliated with a
trade union are not obliged to negotiate with that union about
the conditions of work of their employees. However, Swedish law
does not prohibit a union from mounting pressure on an employer
by instituting industrial actions so as to make him sign or apply
a collective agreement.
b. Access to court
In principle, it is possible for an employer against whom
industrial actions have been instituted to request a court
injunction to the effect that the actions be ordered to cease,
as well as to claim damages. Such a law suit must, however, be
based on the fact that the industrial action is unlawful or in
breach of an existing collective agreement. In order for a damage
claim not based on such a breach to be successful it must, in
accordance with Chapter 2, Section 4 of the 1972 Tort Liability
Act (skadeståndslag 1972:207), be shown that the industrial
action amounts to a criminal offence.
c. Judicial review
According to the 1988 Act a party to a case before the
Government or an administrative authority concerning matters
covered by Chapter 8, Sections 2 and 3 of the Instrument of
Government may apply to the Supreme Administrative Court, which
shall examine whether the decision in the case infringes any
legal rule.
Judicial review may be granted only in respect of decisions
which involve the exercise of public power and which may
otherwise be brought before the courts only after application for
a reopening of proceedings (resning) and in regard to which no
other means of appeal would have been available.
d. Protection of the right of re-employment
Section 25 of the 1982 Employment Protection Act sets out
the conditions under which a former employee shall have the right
to be re-employed. These rules also apply to seasonal workers.
COMPLAINTS
1. The applicants complain that the lack of State protection
against the allegedly unjustified industrial actions instituted
against their employer's restaurant violated their negative
freedom of association. They allege that the aim of the actions
was to deprive them of any possibility of influencing the terms
of their contractual relationship with their employer. In any
case, as a result of the sale of their employer's restaurant they
eventually lost their seasonal employments. They invoke Article
11 in conjunction with Article 17 of the Convention.
2. The applicants further allege that they had no effective
possibility to challenge the industrial actions before Swedish
courts. They invoke Article 6 para. 1 and Article 13 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 July 1989 and registered
on 20 September 1989.
On 14 October 1992 the Commission (Second Chamber) decided
to bring the application to the notice of the respondent
Government and to invite them to submit written observations on
its admissibility and merits.
Following three extensions of the time-limit the
Government's observations were submitted on 1 April 1993. The
applicants' observations in reply were submitted on 28 June 1993.
On 11 January 1994 the plenary Commission ordered, pursuant
to Article 20 para. 4 of the Convention, the transfer of the
application from the Second Chamber to itself.
On 17 January 1994 the Commission decided to hold a hearing
on the admissibility and merits of the application.
At the hearing, which was held on 8 April 1994, the parties
were represented as follows:
The Government:
Mr. Carl Henrik EHRENKRONA Assistant Under-
Secretary for Legal
Affairs, Ministry for
Foreign Affairs, agent
Mrs. Catharina STAAF Legal Adviser, Ministry
of Justice
Mrs. Inga ÅKERLUND Legal Adviser, Ministry of
Labour
The applicants:
Mr. Göran RAVNSBORG Assistant Professor of Law at
the University of Lund,
counsel
The first applicant also attended the hearing.
On 8 April 1994 the first applicant was granted legal aid.
THE LAW
1. The applicants complain that the lack of State protection
against the industrial actions taken against their employer's
restaurant violated their negative freedom of association. They
invoke Article 11 of the Convention, read in conjunction with
Article 17 (Art. 11+17).
Article 11 (Art. 11) reads, in so far as relevant:
"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.
..."
Article 17 (Art. 17) reads:
"Nothing in this Convention may be interpreted as implying
for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any
of the rights and freedoms set forth herein or at their
limitation to a greater extent than is provided for in the
Convention."
The Government submit that Article 11 (Art. 11) of the
Convention is inapplicable in the case. They underline that the
industrial actions were not aimed at compelling the applicants
to join the employees' union HRF. The actual effects of the
industrial actions against the applicants' employer were, thus,
not such as to constitute an interference with their rights under
Article 11 (Art. 11). The aim of the actions was to make the
employer apply the terms of a certain collective agreement in his
contractual relationship with the applicants. Had their employer
agreed to comply with that agreement, the only right of the
applicants to have been infringed would have been their right
freely to conclude an agreement with their employer which they
considered best served their interests. However, no such right
is guaranteed by Article 11 (Art. 11).
Should Article 11 (Art. 11) be considered applicable, the
Government do not argue that the State was not responsible for
the lack of protection of the applicants' rights under that
provision, nor do they argue that this interference was justified
under para. 2
(Art. 11-2) of that provision.
The applicants contend that Article 11 (Art. 11) has been
violated. They consider that there has been an unjustified
interference with the very essence of their freedom of
association, namely their right to conclude employment contracts
on terms agreed upon by themselves and their employer. They do
not question HRF's right to defend its members, but underline
that they had all explicitly objected to being represented by
that union. Allegedly, HRF never consulted the applicants prior
to instituting its actions.
The applicants further submit that their position in
relation to HRF was even weaker than that of their employer,
given that he had the choice of refusing to be bound by the
collective agreement. Had he, however, not persisted in his
refusal, the applicants would also have been compelled to comply
with that agreement, although none of them was a member of HRF.
Already this threat against their negative freedom of association
struck at the very essence of that freedom. At any rate, the
applicants eventually lost a significant part of their livelihood
following the sale of the restaurant.
The applicants finally submit that the State cannot absolve
itself from responsibility by delegating measures related to
collective bargaining to private bodies. Reference is made to
Article 27 (Art. 27) of the Vienna Convention on the Law of
Treaties, according to which a party may not invoke the
provisions of its internal law as justification for its failure
to perform a treaty. Thus, having regard to the requirement in
Article 17 (Art. 17) of the Convention, the State had an
obligation to protect them from the industrial actions against
their employer's restaurant.
The Commission recalls that Article 11 (Art. 11) must be
viewed as encompassing a negative freedom of association, bearing
in mind that the Convention must be interpreted in the light of
present-day conditions (Eur. Court H.R., Sigurjónsson judgment
of 30 June 1993, Series A no. 264, pp. 15-16, para. 35).
Permitting every kind of compulsion in the field of trade union
membership would strike at the very substance of the freedom
Article 11 (Art. 11) is intended to guarantee (Eur. Court H.R.,
Young, James and Webster judgment of 13 August 1981, Series A no.
44, pp. 21-22, para. 52). For the rights under Article 11 (Art.
11) to be effective the State must protect the individual against
any abuse of a dominant position by trade unions (ibid., p. 23,
para. 55).
Assuming that Article 11 (Art. 11) is applicable in the
present case, the Commission observes that the industrial actions
against the applicants' employer resulted in the stopping of
deliveries to his restaurant and the collection of refuse from
it. However, as a result of their employer's refusal to be bound
by the relevant collective agreement, the industrial actions did
not have the effect of preventing the applicants from remaining
unorganised employees, nor did the actions affect the conditions
of their employment.
In these particular circumstances the Commission concludes
that there has been no failure on the part of the respondent
State to actively provide protection to the applicants against
interference with their negative freedom of association (cf. Eur.
Court H.R., Sibson judgment of 20 April 1993, Series A no. 258-A,
p. 14, para. 29).
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants further allege that they had no effective
possibility to challenge the industrial actions before Swedish
courts. They invoke Article 6 para. 1 (Art. 6-1) and Article 13
(Art. 13) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention reads, in its
relevant part:
"In the determination of his civil rights ...,
everyone is entitled to a ... hearing ... by [a]
tribunal ..."
Article 13 (Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Government do not object to the complaint being declared
admissible. They consider that the industrial actions against the
applicants' employer interfered with the applicants' freedom to
conclude employment contracts and that there was a dispute
regarding the justification of those actions. The applicants had
certain court remedies at their disposal, since they could have
requested an injunction stopping the actions, or claimed damages
from the unions or the State. All these remedies would have
enabled the courts to examine the merits of the matter. There
would, however, have been no legal basis for a ruling in the
applicants' favour, given that such court actions would have had
to be based on the argument that the industrial actions were
unlawful or in violation of an existing collective agreement
between the applicants and their employer. In these
circumstances, the Government doubt whether such a court
examination would have been effective for the purposes of Article
6 (Art. 6).
(a) Assuming that Article 6 para. 1 (Art. 6-1) of the Convention
is applicable, the Commission notes that it is not in dispute
that the applicants had access to a court in order to challenge
the industrial actions. Whether or not any of the actions
referred to by the Government would have been successful is not
decisive for the question whether Article 6 (Art. 6) has been
violated. The Commission therefore concludes that there has been
no violation of Article 6 (Art. 6).
It follows that this complaint must also be rejected as
being manifestly ill-founded within the meaning of Article 27
para. 2
(Art. 27-2) of the Convention.
(b) In so far as Article 13 (Art. 13) of the Convention has been
invoked, the Commission considers that the applicants have no
"arguable claim" of a breach of the Convention which would
warrant a remedy in accordance with Article 13 (Art. 13) (cf.
Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series
A no. 131, pp. 23-24, paras. 52-54).
It follows that this complaint must also be rejected as
being manifestly ill-founded within the meaning of Article 27
para. 2
(Art. 27-2) of the Convention.
3. The Commission finally considers that no separate issue
arises under Article 17 (Art. 17) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the
Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy