EVALDSSON AND OTHERS v. SWEDEN

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75252/01
by Tommy EVALDSSON and Others
against Sweden

The European Court of Human Rights (Second Section), sitting on 28 March 2006 as a Chamber composed of:

MrJ.-P. Costa, President,
MrI. Cabral Barreto,
MrK. Jungwiert,
MrV. Butkevych,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 4 September 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first five applicants, Mr Tommy Evaldsson, Mr Johan Svahn, Mr Tonnie Hodell, Mr Jonny Lindqvist and Mr Conny Brandt (hereinafter “the individual applicants”), are Swedish nationals, born in 1948, 1974, 1965, 1964 and 1963 respectively. The sixth applicant is the Swedish Construction Industries (Sveriges Byggindustrier, hereinafter “the Industries”), the Swedish employers’ association in the field of construction work. All six applicants are represented before the Court by Mr Percy Bratt and Mr Jan Södergren, lawyers practising in Stockholm. The Swedish Government (“the Government”) are represented by their Agent, Ms E. Jagander, Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The individual applicants were employed by the construction company LK Mässinteriör AB (hereinafter “the company”) between 3 March and 30 July 1999 on a time-wage basis.

The company, being a member of the Industries, was bound by a collective labour agreement, the Construction Agreement (Byggnads-avtalet), concluded between the Swedish Building Workers’ Union (Svenska Byggnadsarbetareförbundet, hereinafter “the Union”) and the Industries. The relevant local branch of the Union in the instant case was Byggettan, Stockholm.

At the material time, eight employees in the company carried out work covered by the labour agreement. Three of these workers were members of the Union whereas the five individual applicants were not members of the Union or of any other trade union.

Under chapter 3, section 5 of the collective agreement, as it stood at the relevant time, the local branch had the right to monitor on a continuous basis salary conditions relating to piecework (ackordsarbete), result work (resultatarbete) and time-based work (tidlönearbete). If inspections were carried out in accordance with the collective agreement, the local branch had the right to reimbursement of the costs involved on the basis of a fee of 1.5 per cent of the worker’s piecework salary or time wages. The employer was obliged to deduct this amount from the worker’s salary and to supply the local branch with the information necessary for the monitoring work.

On 12 January 1978 the Industries and the Union concluded an accord pursuant to which a worker organised in a trade union other than the Union could request his employer not to deduct the monitoring fee, with the result that the Union would no longer have the right to request either information or the payment of a fee in respect of that worker. In a subsequent dispute between the Industries and the Union over the interpretation of the accord, an out-of-court settlement was reached on 29 February 2000 to the effect that it applied to all workers belonging to a trade union other than the Union.

On 22 May 1991 the company and Byggettan concluded an agreement concerning the monitoring work. The agreement gave details of the work and specified, inter alia, that it was the company’s responsibility to provide Byggettan with the salary information and to deduct fees from the salaries of the workers and pay them to Byggettan six times a year. The information was to include the place of work, the names and social security numbers of the workers and the working hours and net salaries.

The individual applicants requested to be exempt from the deductions. The company complied with their requests, stopped paying the fees to Byggettan and did not provide it with the above-mentioned salary information concerning the applicants. Byggettan insisted on payment and initiated formal local negotiations. These were held on 23 March and 19 April 1999. However, no solution was reached, either in the local negotiations or in the subsequent central negotiations between the Industries and the Union.

The Industries eventually brought the case before the Labour Court (Arbetsdomstolen), seeking a declaratory judgment to the effect that the company was not obliged to levy the monitoring fees in question. It argued that the monitoring, in so far as it did not concern the technical measuring of piecework, aimed at securing the observance of the provisions of the collective labour agreement and were therefore part of the general activities of the Union. Moreover, the 1998 and 1999 annual reports of Byggettan allegedly showed that the monitoring fees greatly exceeded the costs of the work and that the surplus was used for general union activities. Consequently, the corresponding deductions from the individual applicants’ salaries were tantamount to a forced union membership or, at least, involved an unacceptable compulsion to join the Union or another trade union. The conduct thus violated their negative freedom of association under Article 11 of the Convention as well as under domestic law. Furthermore, since the individual applicants did not share the political values of the Union, the levy on their salaries also violated their rights under Article 10 of the Convention.

Two of the applicants, Mr Evaldsson and Mr Hodell, were heard at the hearing before the Labour Court. They submitted that they opposed the deductions because they did not think the monitoring work was of any use to them and considered the deductions an unnecessary expense. Allegedly, they also submitted that they felt that the deductions were unjust.

The Union disagreed with the Industries, arguing that the monitoring fees could not be seen as tantamount to forced membership of the Union, such membership being secured through the payment of a separate membership fee. The system of monitoring fees did not involve a compulsion to join a trade union. Moreover, the individual applicants had not expressed any ideological reasons for their unwillingness to contribute to the monitoring work. The Union claimed that, contrary to the Industries’ allegation, the 1998 and 1999 annual reports of Byggettan showed that the proceeds of that work had not contributed to general union activities but that, in fact, the monitoring had been run at a loss. Furthermore, the monitoring work was strictly separated, economically and otherwise, from the other activities of Byggettan. Finally, arguing that the positive aspect of the freedom of association under Article 11 of the Convention was stronger than its negative counterpart, the Union claimed that a ban on the levying of monitoring fees on unorganised workers’ salaries would violate the positive rights of its members, as this could induce members to leave the Union in order to avoid paying the fees.

By a judgment of 7 March 2001, the Labour Court rejected the Industries’ claims. It referred to several of its previous judgments concerning various types of measurement and monitoring fees. In a case from 1977 (AD 1977 nr 222), the court had found that the monitoring of time wages was wholly different from the measuring of piecework, as no special action had to be taken to establish the amount and type of work performed. Instead, the inspection of time wages rather aimed at securing the observance of the collective labour agreement and also served as a basis for the statistics used by the Union in wage negotiations with the employers. Consequently, the monitoring benefited the general union activities and the fees contributed financially to those activities. The court had therefore concluded that the levying of fees on the salaries of members of the Syndicalist Union for monitoring work carried out by another trade union involved a violation of those worker’s positive freedom of association, as they would have to resign from their own organisation in order to avoid contributing to both organisations.

The Labour Court stated that there was no reason to come to a different conclusion in the instant case as to the nature of the monitoring work. Thus, from the point of view of association law, there was no reason to distinguish between monitoring work and general union activities. Having reached that conclusion, the court found no reason to determine whether the monitoring fees generated a surplus which contributed to other union activities than the monitoring work.

However, the situation in the instant case was different from the 1977 case in that the individual applicants were not subjected to pressure to leave their organisation. Instead, the question was to what extent they were protected by a right to negative freedom of association. The Labour Court noted that the negative freedom of association under domestic law was exclusively based on the Convention. It referred to the European Court’s case-law and drew the conclusion that only the core of the negative freedom of association was protected under Article 11 of the Convention, meaning that a person must have been subjected to a certain measure of force or at least strong pressure to join an organisation in order to give rise to a violation of Article 11.

The Labour Court initially concluded that the monitoring fee deductions did not entail membership of the Union and that no pressure had been exerted to compel the individual applicants to join the Union against their will.

It further found that the fact that the individual applicants, through payment of the monitoring fee, indirectly supported the activities of the Union did not in itself amount to forced membership, since being a member of the Union also entailed certain other duties, such as loyalty to its objectives and payment of a membership fee. The situation would have been different if the individual applicants would to some extent have been associated with the Union’s ideology as a result of the monitoring fee deductions. However, the fee in issue was deducted in accordance with their employer’s obligations under the collective labour agreement, and it was, accordingly, difficult to see a link with the Union’s ideology. In this connection, the court also referred to the evidence given before it by Mr Evaldsson and Mr Hodell. While it questioned whether the grounds for their position in the case could have a bearing on their negative freedom of association, the court nevertheless found that there was no indication that they opposed the deduction of the fees because they took exception to union activities in general or to the ideology of the Union.

The Labour Court went on to state that, while the individual applicants, through the fee deductions, contributed to the general activities of the Union, they were not treated any differently from Union members as concerns the wage monitoring. In order to monitor the observance of the collective labour agreement, the work was carried out with respect to all employees affected by the agreement, whether belonging to a trade union or not. Noting that it could appear offensive to an unorganised worker to have to contribute to the work, the court stated that it was not without importance that the unorganised worker in fact obtained something in return for the fee paid.

The Labour Court further noted that, theoretically, the individual applicants could be inclined to join a trade union other than the Union in order to avoid the salary deduction for the monitoring fee. It found, however, that it was not very realistic that an employee would regard the salary deduction as a particular incentive to do so.

The Labour Court concluded that all the above considerations indicated that the deductions did not breach the individual applicants’ rights under the Convention. As to the main issue to be determined – whether the monitoring fee was intended as a measure to pressure them to join the Union – the court could not find that it had any such coercive effect. As the fee was not tantamount to a forced membership of the Union and had not influenced or forced the individual applicants to join the Union, the company had been obliged to make a deduction from their salaries in accordance with the collective labour agreement.

B. Relevant domestic law and practice

1. Freedom of association

Freedom of association is guaranteed in the Swedish constitution. Chapter 2, section 1 of the Instrument of Government (Regeringsformen) provides in its relevant parts:

“In relation to the public administration, every citizen is guaranteed:

1. freedom of expression: the freedom to communicate information and to express ideas, opinions and emotions whether orally, in writing, in pictorial representations or in any other way;

5. freedom of association: the freedom to unite with others for public or private purposes; ...”

Chapter 2, section 2 protects, inter alia, the negative aspect of freedom of association. It reads:

“In relation to the public administration, every citizen is protected against coercion to divulge an opinion in a political, religious, cultural or other such connection. In relation to the public administration, he is furthermore protected against coercion to participate in a meeting for the formation of opinion or in a demonstration or other manifestation of opinion, or to belong to a political association, religious congregation or other association for opinions referred to in the first sentence.”

Section 7 of the 1976 Act on Co-Determination at Work (Lag om medbestämmande i arbetslivet, SFS 1976:580, hereinafter “the 1976 Act”) guarantees the right of employers and employees to form, belong to and work for labour market organisations. The right of association is further protected by section 8, which forbids any resort to action against someone on the opposing side for having exercised this right or in order not to exercise it.

2. The relationship between employers and employees

Section 10 of the 1976 Act gives employers’ and employees’ organisations as well as individual employers a right of negotiation in regard to matters concerning the relationship between employers and employees. It does not provide for any right of negotiation for the individual employees, who are obliged to exercise their powers through the trade unions.

Under section 26 of the 1976 Act, a collective labour agreement is binding not only on the employer’s and employee’s organisations but also on their members, i.e. companies and individual workers. Moreover, in practice, the collective agreement is of significance also for employees who are not trade union members in that it has a normative effect. This entails that the individual work contracts are considered to have the same contents as the collective agreement unless the parties to the contract have expressly agreed otherwise.

Under section 27 of the 1976 Act, an employer and an employee cannot conclude a legally valid agreement which contradicts the collective agreement by which they are bound. This means that an agreement contradicting the collective agreement is automatically null and void. While contracts with less favourable conditions than the collective agreement are normally invalid, the validity of contracts with more favourable conditions depends on an interpretation of the agreement in question. As the instant provision formally only prohibits an employer from concluding contradictory contracts with members of the trade union which is party to the collective agreement, it is possible for the employer to conclude such contracts with employees who are not members of the relevant trade union. However, most collective agreements are based on the presumption that an employer does not have a right to conclude such contracts with non-member workers. Consequently, while the contracts in question remain valid, the employer may be liable to pay damages to the trade union.

3. The monitoring system

Monitoring of wages for hourly work is conducted in a manner decided upon by the employer and the local union branch. It normally involves the examination of documents provided by the employer and personal visits by the union’s representatives to the employer. If a mistake is discovered, clarifications or corrections can be made by telephone or letter. In some cases, formal negotiations are required.

Under the terms of the Construction Agreement, the local union branch is entitled to a fee as compensation for the costs entailed by the monitoring work. The fee – 1.5% of the employee’s wages – is deducted by the employer from the wages of each individual worker.

According to the applicants, a member of the Union pays about 3,500 Swedish kronor (SEK; approximately 370 euros) per year in monitoring fees in addition to the union membership fee of SEK 3,000 (approximately 320 euros). The largest competing trade union, the Syndicalist union, does not have a monitoring system. The Union therefore has a de facto monopoly in this field.

The regulation regarding wage monitoring was made part of the Construction Agreement in 1976. Previously, workers paid hourly wages had not been subjected to wage deductions for monitoring fees. According to the applicants, the purpose was that workers paid hourly wages, as an act of solidarity with workers carrying out piecework, should contribute to the monitoring system. At the material time, the majority of the workers carried out piecework, the measurement of which was costly and time-consuming. The fee for monitoring hourly wages was thus not primarily introduced as a reimbursement for the service in question, but as a means of supporting the measurement of piecework salaries.

Today, approximately 80 per cent of workers are paid hourly wages, which is almost the opposite ratio compared to the situation in 1976. Moreover, the measurement of piecework salaries has become much more simplified. In general, wage monitoring is now computerised and based on information provided by the employer.

The activities of Byggettan, the local union branch, are divided into two parts: branch activities (union agitation, creating public opinion, political work) and business activities (such as monitoring work). Branch or non-profit activities are paid for by means of union-membership fees. Revenues from the business or commercial activities, such as wage monitoring fees, which are subject to value-added tax, are used to cover the costs of such activities. The applicants claim, however, that the monitoring work generates a considerable surplus which is used to cover the costs of other union activities. The annual income of the Union pertaining to the monitoring work amounts to approximately SEK 250 million. Byggettan is the largest local branch of the Union with 94 employees at the end of 1999. That year, eleven of its employees were involved in wage monitoring.

COMPLAINTS

1. The applicants complain under Article 11 of the Convention that the levying of the wage monitoring fee on their wages violated their negative freedom of association, since the fee was tantamount to a forced membership of the Union and contributed to the general union activities.

They further claim under that Article, read in conjunction with Articles 9 and 10 of the Convention, that they came to support the Union’s political and ideological programme through the payment of the fee, and that they did not agree with that programme. There was no need for them to state their political or ideological opposition openly, as the mere fact that they remained unorganised involved a clear statement of their disagreement with the objectives of the trade union.

2. The applicants maintain under Article 14 of the Convention in conjunction with Article 11 that they were discriminated against in relation to both members of the Union and members of other trade unions.

3. The applicants assert under Article 1 of Protocol No. 1 to the Convention that the levying of the fee amounted to a deprivation of their property. Moreover, they claim under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 that the deprivation of their property discriminated against them in relation to members of the Union and members of other trade unions. They submit that, although the complaints concerning the right to property were not explicitly mentioned before the Labour Court, they were argued in substance.

THE LAW

A. The Government’s preliminary objections

1. Another procedure of international investigation or settlement

The respondent Government first contended that the application as a whole should be declared inadmissible under Article 35 § 2 (b) of the Convention as the matter had already been dealt with by another procedure of international investigation or settlement. They submitted that the Confederation of Swedish Enterprise (Svenskt Näringsliv; “the Confederation”), on 4 April 2002, had made a complaint to the European Committee of Social Rights that the deductions from the wages of non-unionised workers for wage monitoring fees violated the right not to join a trade union and thus Article 5 of the Revised European Social Charter (complaint no. 12/2002). The Committee had found in its decision of 15 May 2003 that the fees as such did not violate Article 5 (paragraph 40 of the decision). The case before the Committee had concerned the fees that follow from the Construction Agreement and the Labour Court’s judgment of relevance in the present case had been referred to under “relevant domestic law” in the Committee’s report. Moreover, the Government pointed out that the Confederation is an umbrella organisation of which the Industries is a member and that a representative of the Industries had addressed the Committee at its hearing in the case on behalf of the Confederation.

The applicants submitted that the Committee had not pursued a complete evaluation of the wage monitoring system. While it had concluded that doubts existed as to the real use of the fees and that, if they were to finance activities other than wage monitoring, they would at least in part violate Article 5, the Committee had stated in its decision that it was “not in a position to verify the use of the fees and in particular to verify to what extent the fees are proportional to the cost of the service carried out and to the benefits wage monitoring confers on the workers”. Noting that these were decisive factors in determining a violation of Article 5, the Committee had left it for the national courts or legislator to address the matter and had reserved the right to supervise the situation through its reporting procedure (paragraphs 41-43 of the decision).

The applicants further claimed that the complaint before the Committee had been of an actio popularis character and that the Labour Court’s judgment of 7 March 2001 had only served as a description of the legal position in Sweden. They also contended that there was no identity between the parties in the case before the Committee and the present case. The five individual applicants could not become members of the Confederation and had no say over its actions or decisions. Moreover, they had not ­been – and could not have been – represented before the Committee by the Confederation, whose purpose was to protect the interest of the industry in general. Nor would the individual applicants have been able to bring a complaint before the Committee. As regards the sixth applicant, the Industries, it was pointed out that, although it had some elements in common with the Confederation, the two organisations were registered as separate legal persons and could not represent each other in domestic legal proceedings. Furthermore, they had their own decision-making bodies and there was no formal way for the Industries to prevent the Confederation from, inter alia, initiating complaints before the Committee. Finally, the Industries had not participated in the Committee proceedings in the capacity of a party, but its representative had been heard as an “expert witness” concerning the application of the wage monitoring system and the collective agreement at issue.

Article 35 § 2 (b) of the Convention provides the following:

“The Court shall not deal with any application submitted under Article 34 that

...

(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”

The Court notes that the freedom enshrined in Article 5 of the European Social Charter resembles the rights guaranteed by Article 11 of the Convention. However, the Court finds that the present applicants are not identical with the complainant before the European Committee of Social Rights. It notes that the five individual applicants in the present case could not have been represented before the Committee by the Confederation, as the Confederation protects employers’ interests and not those of individual workers, and that they would not have been able to bring proceedings before the Committee themselves, as that organ may only receive complaints from employers’ organisations and trade unions. As regards the sixth applicant, the Industries, the Court takes into account that it is a legal entity separate from the Confederation and that it did not participate in the proceedings before the Committee as a party. Moreover, with respect to the subject-matter of the two proceedings, the Court further finds that it is of importance under Article 35 § 2 (b) that the Confederation’s complaint before the Committee was of a general character whereas the present application concerns the Labour Court’s judgment of 7 March 2001 which addressed the specific situation of the five individual applicants. Accordingly, the present application cannot be regarded as being substantially the same as the complaint brought before the European Committee of Social Rights. The Government’s objection in this regard must therefore be rejected.

2. Exhaustion of domestic remedies

The Government questioned whether the five individual applicants had exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. They pointed out that the parties in the domestic proceedings had been the Industries and the Union, the former as plaintiff and the latter as defendant. None of the individual applicants had been a party in the domestic proceedings. Nor could they be said to have been represented by the plaintiff or the defendant since they were not members of either organisation.

The Government contended that it would have been open to the individual applicants to initiate civil proceedings against their employer before a general court. The Labour Court’s declaratory judgment of 7 March 2001 had only res judicata effect in relation to the scope of applicability of the relevant clause in the Construction Agreement and in relation to the parties to the agreement, who were also the parties to the case before the Labour Court. The judgment’s res judicata effect did not encompass the individual applicants. The fact that, according to the judgment, the company employing the individual applicants was obliged in relation to the Union to make deductions for monitoring fees from the wages of non-union employees in accordance with the collective agreement did not entail that the company was afforded a corresponding right in relation to those applicants to make deductions from their wages. While the Government acknowledged that the Labour Court’s judgment in the case between the Industries and the Union would have been an important precedent in a case brought by the individual applicants against their employer, they submitted that the outcome would have depended on the positions taken by both sides in the proceedings and on the arguments advanced in support of those positions.

The applicants stated that, while formally it had been possible for the individual applicants to initiate civil proceedings against their employer, their claims would have failed on the merits and the procedure would not have been effective. They pointed out that the Labour Court would have been the final instance in such a case, and there was no indication that that court, which had not found a violation of the negative aspect of the freedom of association in the impugned judgment, would find a violation of Article 11 or any other provision of the Convention in the relations between the employer and the employees. They further submitted that the collective agreement at issue clearly stipulated that the wage monitoring fees should be deducted from the wages of the employees and that there was no domestic legal ground or any right inherent in the Convention for the claim that the fees should be passed on to the employer.

The Court observes that the interests sought to be protected by the five individual applicants appear identical in all material respects to the issues brought before the Labour Court by the Industries. The case before the Labour Court concerned the specific situation of the individual applicants, namely the fact that, under the collective agreement in force, their employer was obliged to deduct monitoring fees from their wages. It should further be noted that the case originated in their request to be exempt from the deductions. There is no indication that they might have obtained a different outcome had they brought civil proceedings themselves.

In these circumstances, the Court considers that the respondent State has been given a sufficient opportunity to put right the alleged violations of the Convention, which is the principal purpose of the rule of exhaustion. It does not find that the individual applicants’ omission to bring civil proceedings entailed a failure to exhaust domestic remedies. Consequently, this objection of the Government must also be rejected.

3. The Industries’ standing as “victim”

The Government contested that the sixth applicant, the Industries, could be regarded as a victim for the purposes of Article 34 of the Convention, as there was no connection between the Industries and the alleged violations. They pointed out that the monitoring fees had not been levied on the Industries and submitted that the fact that one of its members (the company that employed the individual applicants) had been obliged by the terms of the collective agreement to deduct the fees from the individual applicants’ wages could not have affected the Industries’ rights under the Convention. The fact that the Labour Court had ruled that the Industries compensate the Union for legal costs incurred during the domestic proceedings could not be taken to mean that the Industries’ right to protection of property had been affected in any way.

The applicants claimed that the Industries constituted a victim within the meaning of Article 34 of the Convention, since it had been ordered to pay the legal costs of the Union. They submitted that the reason for the Industries’ status as a party in the domestic procedure was the fact that, under Swedish law, only the parties to the collective agreement in issue could appear as formal parties in a dispute over the interpretation and application of the agreement. If there were individuals involved they were considered as informal parties, who could not normally be ordered to pay the winning party’s costs. The applicants further pointed out that, if the Industries was not afforded standing as a victim in this case and the Court eventually found violations of the individual applicants’ rights, the Industries would end up bearing the costs it should not have had to bear if the Labour Court had reached the same conclusion as the Court.

The Court notes that all the complaints in the present application, as well as the issues dealt with by the Labour Court in the domestic proceedings, concern the question whether the deduction of monitoring fees from the wages of the individual applicants violated their rights under the Convention. No such fees were levied on the Industries and the fact that the deductions were made by the company, a member of the Industries, could not be construed as meaning that the Industries’ negative freedom of association, freedom from discrimination or right of property were affected. Moreover, the circumstance that the Industries, as losing party in the domestic proceedings, was ordered to pay the Union’s legal costs, does not imply that it could be considered a “victim” within the meaning of Article 34 of the alleged violations. The Government’s objection in this regard must therefore be upheld and the application rejected in respect of the sixth applicant.

B. The alleged violations

1. Article 11 of the Convention taken alone or in conjunction with Articles 9 and 10 of the Convention

a) Applicability

The Government maintained that what had occurred in the present case did not attract the application of Article 11, taken alone or in conjunction with Articles 9 and 10, and that the complaints under that Article should therefore be declared inadmissible ratione materiae. They submitted, first, that the deduction of the monitoring fees from the individual applicants’ wages had not resulted in their actually becoming members of the Union. Secondly, the deduction of monitoring fees could not be put on an equal footing with actual membership of the Union, as such membership entailed obligations that non-members need not comply with, including the obligation to be loyal to the aims of the Union and the obligation to pay membership fees. Thirdly, the deductions had been made simply as a consequence of the fact that their employer had undertaken, by means of the collective agreement, to make the deductions in question, and did not make the non-unionised individual applicants associates of the Union’s aims and ideology.

The Government also pointed out that the deductions for monitoring fees were made from the wages of all workers, with the exception of those belonging to a trade union other than the Union. This meant that the applicants’ choice not to join the Union – a choice which had been entirely theirs to make – had not entailed any disadvantage for them. Likewise, no advantage or reward in the form of, for example, a smaller deduction would have been given to them if they had joined the Union. The same deductions for monitoring fees would have been made anyway.

In the instant case, the situation was a consequence of the fact that legislation had been substituted by collective agreements concluded by the parties on the labour market. The same parties had been left in charge of ensuring that the collective agreements, which regulated also the wages of non-union employees, were properly enforced. The particular collective agreement in issue included a model for the monitoring of its implementation, financed by means of a fee deducted from the wages of most workers. Referring to the judgment of Gustafsson v. Sweden (Reports of Judgments and Decisions 1996-II, p. 652, § 44), the Government contended that this could hardly be said to have placed the applicants under such considerable pressure that the enjoyment of their freedom of association was affected. In fact, the Government stated that they could see no logic behind the reasoning that the applicants would feel pressured to join the Union as result of their contribution to the costs of the monitoring system. If they had indeed applied for membership of the Union, this would have meant that they would have had to pay even more money (the membership fee) to an organisation with which they claimed not to sympathise.

While the Government acknowledged that the protection of personal opinion afforded by Articles 9 and 10 was also one of the purposes of freedom of association as guaranteed by Article 11, their submissions in respect of Article 11 were not altered by the fact that its applicability was considered in conjunction with Articles 9 and 10. In the Government’s opinion, the applicants’ argument that they, by having to contribute to the remuneration for monitoring work, had been forced to support, or at least ran the risk of being associated with, the views and ideology of the Union was of no relevance for the applicability of Article 11 since the fact that monitoring fees had been deducted also from their wages (and not merely from those of the Union members) had not resulted in their actual membership of the Union or that they had found themselves in a situation that could be equated or associated with that of a Union member.

The applicants submitted that, although they did not become formal members of the Union, the payment of the wage monitoring fees, which were used for general union purposes, had to be seen as a sufficient involvement in the union to bring the negative aspect of freedom of association into play. They were not claiming that they had been pressured to join the Union but rather that the monitoring system went beyond any form of compulsion since it was automatic. The allegedly covert membership fee was a fait accompli and compulsory. Consequently, there had been no need for pressure in order to make the unorganised workers pay the fee.

The applicants further contended that the Government’s argument that non-members did not have certain obligations that followed from a membership was highly artificial. The obligation of loyalty, if at all existing in practice, was vague and impossible to control. Moreover, membership and the payment of a membership fee also entailed certain crucial rights, including insurance cover for legal costs in labour disputes and the ability to claim a direct right under the collective agreement. In the latter respect, the applicants maintained that unorganised workers would not receive any help from the Union if a fault was discovered as a result of the monitoring work. There was no evidence that even a single unorganised worker had received any amounts recovered for that work or any other help.

Furthermore, the applicants claimed that the wage monitoring system generated a surplus which contributed to the union activities by financing a discount on the ordinary membership fees. They also maintained that, through their contributions to the wage monitoring, they became associated with the Union’s aims and ideology.

In conclusion, the applicants asserted that Article 11 of the Convention was applicable, taken alone as well as in conjunction with Articles 9 and 10.

The Court finds that the question of whether Article 11 of the Convention, taken alone or in conjunction with Articles 9 and 10, applies in the present case raises issues which are closely related to the merits of the complaints made and are of such a complex nature that a determination thereof should be reserved for the post-admissibility stage. Accordingly, the Court considers that the final determination of the applicability issue should be joined to the merits and reserved for later consideration.

b) Compliance

The Government contended that there had been no interference with the applicants’ rights for which the respondent State could be held responsible. The situation in the present case had not been such that it had given rise to any positive obligation on the part of the State. Moreover, a wide margin of appreciation was afforded to the State in this particular field. The Government referred to the arguments put forward in relation to the question of applicability, in particular the fact that labour-market issues in Sweden are dealt with by organisations acting on that market without interference from public authorities and that collective agreements, which cover more than 90 per cent of the labour market, have a significant influence as norms also on the remaining part of the market.

In the event that the Court should come to the conclusion that there had been an interference with the applicants’ rights under Article 11, the Government submitted that it was not in dispute between the parties that collective agreements constitute law within the meaning of the Convention and that, consequently, the alleged interference under Article 11, taken alone or in conjunction with Articles 9 and 10, was prescribed by law. The Government further asserted that the alleged interference served the legitimate aim of protecting the rights and freedoms of others. In this respect, they pointed out that the organisations on the labour market had not only been entrusted with the task of establishing the norms on that market, including rules on minimum wages, but had also been left in charge of ensuring that those norms were respected. The wage-monitoring system established in the construction business, financed by the fees in issue, had been established for that purpose. In the Government’s opinion, adherence to labour-market agreements was vital, as the legitimacy of the system of collective bargaining would otherwise be threatened.

Moreover, the Government contended that the alleged interference with the applicants’ rights had been proportionate to the aim pursued. In support of that contention they submitted, inter alia, the following. In general, the assessment of proportionality had to be made in the light of the importance attributed in Sweden to the system of collective bargaining. The collective agreements had an important normative effect and protected workers’ interests in a general sense. In the construction business, also employees who were not members of the Union benefited from the latter’s negotiations with the Industries concerning, for instance, wage levels, although they did not contribute financially to this part of the Union’s activities, which was financed by means of membership fees. As wage monitoring ensured that the collective agreement in issue was adhered to by the employers, it fulfilled an important function in the interests of construction workers generally. There was no difference in treatment between Union members and other workers; Byggettan would allegedly inform also non-unionised workers and contact their employers in case any discrepancies were found. If non-unionised workers were exempt from contributing to the wage monitoring system, it would appear to be at the expense of the Union’s members who would presumably have to contribute more to help cover the costs of the monitoring work.

The Government also adduced that it was an essential trade union interest as such to ensure that the terms on wages of the Construction Agreement were adhered to. Furthermore, Byggettan was only entitled to compensation if monitoring work had actually been carried out and only the actual costs of monitoring were to be covered by the fees. According to the treasurer at Byggettan, during the relevant year 1999, the overall costs for wage monitoring had exceeded the total amount that had been deducted from the wages of workers employed by an employer bound by the Construction Agreement. This indicated that the applicants had not contributed to Byggettan’s branch activities by means of the deductions made on their wages. The wage monitoring system also had a preventive impact in the sense that employers, being aware of the fact that deviations from the Construction Agreement would probably not go unnoticed, presumably would take more care in respecting the wage levels specified by the agreement. Due to the short duration of their employment periods and their resultant difficulties in being informed of the applicable collective agreement, this effect was particularly vital for construction workers.

The Government finally submitted, in respect of the rights guaranteed under Articles 9 and 10, that the testimonies before the Labour Court of two of the applicants had not indicated that their unwillingness to contribute to the wage monitoring system had been based on ideological concerns.

The applicants did not dispute that States have a wide margin of appreciation regarding how the labour market is broadly regulated. However, they claimed that, by delegating legislative power, including the right to conclude collective agreements with normative effects, to the parties on that market, the Swedish State had a positive obligation to prevent abuse of the power thus conferred. In this connection, the applicants pointed out that, as non-unionised workers, they could not claim a direct right under the collective agreement and had no influence over the union concluding it, although its normative effects extended also to them. In sum, they maintained that there had been an interference with their rights.

While acknowledging that the levying of the fees in question had a basis in the domestic legal system, the applicants submitted that it did not pursue a legitimate aim. Although the collective bargaining system as such served to protect the rights and freedoms of others, the wage monitoring system had become devoid of its original purpose, as the majority of building workers were now paid time wages and not piece-work salaries necessitating technical measurements. Further, as the monitoring work allegedly generated a surplus, it was mostly serving as extra income for the Union. The applicants also maintained that the Government had not shown how the general collective bargaining system would be threatened if a small minority of unorganised workers would be exempt from paying the fees in question, especially since members of other unions were not paying them.

As to the proportionality of the alleged interference, the applicants submitted, inter alia, the following. The monitoring fees constituted covert membership fees. That conclusion followed already from the judgment of the Labour Court, where it had stated that there was no reason to distinguish between monitoring work and general union activities and that the monitoring fees contributed financially to those general activities. Claiming furthermore that the monitoring work generated a surplus, the applicant submitted as evidence the annual report of Byggettan for 1999, according to which that work had generated a profit of about 5 million SEK (approximately 530,000 euros). While, formally, the Union was entitled to compensation only if monitoring work had been carried out, it had never, in practice, declined to receive any monitoring fees. In regard to freedom of opinion, the applicants pointed out that the Union supported a specific political party in Sweden.

As to the Government’s contention that all construction workers benefited from the wage monitoring, the applicants submitted that it was the wish of the Union that collective agreements have strong normative effects and that there was always a risk for the Union that its work, to a greater or smaller extent, benefited non-members. This could not justify the levying of covert membership fees, since this had the effect that membership in reality became compulsory. They also maintained that unorganised workers did not receive any help from the Union if a fault was discovered during the wage monitoring.

Moreover, in regard to the union interest at issue, the present case differed greatly from, inter alia, that of Gustafsson v. Sweden (referred to above). In that case the positive right under Article 11 to initiate and pursue trade union actions was at stake, whereas the present case concerned the right of the Union to finance its activities through contributions from non-members. The latter right was not protected by Article 11.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Article 14 of the Convention in conjunction with Article 11 of the Convention

As the Government maintained that Article 11 was not applicable in the case or, in the alternative, that the complaints under that Article were manifestly ill-founded as the circumstances of the case were not such as to give rise to State responsibility, they contended that there was no room for the application of Article 14 in conjunction with Article 11 and that the present complaint should therefore be declared inadmissible ratione materiae.

If the Court should conclude that Article 14 is applicable, the Government submitted that there had been no difference in treatment between the applicants and members of the Union. However, the applicants had been treated differently from construction workers who were members of other trade unions than the Union, as the latter group had received the same service (wage monitoring) without having to pay the price (monitoring fees) for those services. The Government claimed, however, that this difference in treatment had pursued the legitimate aim of protecting the freedom of association of those other workers. Moreover, it had been proportionate as, under the case-law of the Court, the protection of the positive aspect of freedom of association was more far-reaching than the protection of the negative aspect of that freedom.

The applicants submitted that they were not complaining of having been treated differently from members of the Union; on the contrary, they claimed that they should have been treated differently, as their situation had been significantly different. In relation to members of other trade unions, the applicants maintained that the difference in treatment had no legitimate justification. They argued, inter alia, that it was more far-reaching to compel an unorganised worker to contribute to general union activities than to place such an obligation on a member of another union. Moreover, the benefits of the monitoring work extended also to members of other unions.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. Article 1 of Protocol No. 1 to the Convention taken alone or in conjunction with Article 14 of the Convention

The Government contended that, if Article 1 of Protocol No. 1 was at all applicable, what had occurred in the present case had to be considered as a control of the use of property falling within the scope of its second paragraph. They left it to the Court to decide whether an interference giving rise to State responsibility had occurred. They submitted, however, that the alleged interference had been lawful. Furthermore, the wage-monitoring system that followed from the Construction Agreement, and the costs to which the applicants were compelled to contribute, served not only the legitimate aim of protecting the rights and freedoms of others, but also pursued the general interest of the community, namely to uphold the legitimacy of the Swedish approach in the area of industrial relations. This applied irrespective of whether Article 1 of Protocol No. 1 was taken alone or in conjunction with Article 14. Finally, referring to the arguments already advanced in respect of proportionality of the other alleged interferences in the present case, the Government maintained that the alleged interference under Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14, had been proportionate.

The applicants submitted that the situation in the present case was rather to be examined under the second sentence of the first paragraph of Article 1 of Protocol No. 1, as it concerned a deprivation of property. Whichever rule of Article 1 was applicable, there had been an interference with the applicants’ property rights which lacked a legitimate aim and which, in any event, was not proportionate to any such aim. With respect to the proportionality issue, the applicants referred to their submissions in regard to the other complaints.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Joins to the merits the question of the applicability of Article 11 of the Convention, taken alone or in conjunction with Articles 9 and 10 of the Convention;

Declares inadmissible the application insofar as it concerns the sixth applicant;

Declares the remainder of the application admissible, without prejudging the merits of the case.

S. DolléJ.-P. Costa
RegistrarPresident

 

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