AS TO THE ADMISSIBILITY OF
Application No. 18881/91
by HOFFUNKTIONÆRFORENINGEN I DANMARK
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 January 1992 the following members being present:
MM.S. TRECHSEL, President of the Second Chamber
C.A. NØRGAARD
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G.H. THUNE
MM.F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr.K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 September 1991
by HOFFUNKTIONÆRFORENINGEN I DANMARK against Denmark and registered on
30 September 1991 under file No. 18881/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant is the Union of Court Officials (Hoffunktionær-
foreningen) in Denmark. Before the Commission the applicant is
represented by its lawyer, Mr. Jørgen Jacobsen, Frederiksberg.
The applicant is a trade union open to the employees of the Royal
Danish Court. It has since its foundation on 18 April 1974 pursued the
right to conclude collective agreements on terms of wages and
conditions of employment with the Queen.
According to Section 10 (1) of the Danish Constitution, the
disbursement of the State to the Sovereign is regulated by statute.
Section 1 of Act No. 136 of 26 April 1972 regulates the disbursement,
the so-called Civil List, which provides for the household of the
Queen. The Civil List is administered by the Lord Chamberlain
(hofmarskal) on behalf of the Queen and he is also in charge of
employments and negotiations with the employees of the Royal Court
concerning conditions of employment, wages etc.
On 27 October 1969 a general agreement was concluded between the
Ministry of Finance and the central organisations of employees pursuant
to Section 49 of Act No. 291 of 18 June 1969 relating to officials in
the central administration, State schools and the national church
(tjenestemandsloven). This Act governs the procedure of concluding
labour agreements and contains the rules for exercising the right to
negotiate between the State and the State employees.
In 1973 the Ministry of Finance raised the question whether the
employees of the Royal Court were to be considered as covered by the
above-mentioned Act and thereby by the general agreement.
This question was answered in the negative by the Queen's lawyers
in an opinion of 7 September 1973 requested by the Office of the Lord
Chamberlain. In their view the Sovereign could not, according to the
Constitution, be subject to collective labour agreements. This view has
been upheld ever since.
On 13 January 1989 the applicant's representative approached the
Lord Chamberlain again in order to explore the possibilities of
concluding a collective agreement on working conditions, wages etc.
between the union and the Queen. Meetings between the parties were held
on 13 March, 16 August and 21 August 1989 without achieving any result.
The applicant union would not depart from its demand to conclude a
collective agreement which was refused by the Lord Chamberlain.
Finally, on 15 September 1989, the applicant union was informed that
a collective agreement between the union and the Queen could not be
concluded, but that the union and the employees of the Royal Court
could continue to negotiate questions concerning employment and working
conditions.
On 8 November 1989 the applicant union therefore addressed the
Labour Court (Arbejdsretten), which is the final instance concerning
labour conflicts in Denmark, requesting the appointment of a mediator
in pursuance of Section 10 (4) in conjunction with Sections 11 - 13 of
the Officials Act (Funktionærloven) on the ground that the other party
was opposed to negotiation.
Following several pleadings from both parties the Labour Court
rejected the applicant's request for the appointment of a mediator on
4 April 1991. Referring to the Queen's immunity according to Section
13 of the Danish Constitution, the Labour Court held that a mediator
could not be appointed as it would enable the Labour Court to impose
a sanction on the Queen (the Civil List) by an order.
COMPLAINTS
Referring to Section 12 of the Danish Constitution which declares
that the Queen is the Head of State, the applicant union claims that
actions taken by her are to be considered as actions of the Danish
State.
Furthermore, the applicant union claims that Section 13 of the
Constitution which states that the Queen has immunity only applies in
Denmark.
The applicant union complains that the right of trade unions
under Article 11 para. 1 of the Convention has been violated as it is
impossible to obtain a collective labour agreement with the Queen. It
submits that even though Article 11 only protects the right to form and
to join trade unions, the provision is to be interpreted as granting
trade unions a right to protect their members' interests. If Article
11 did not ensure the fundamental rights of trade unions, the
protection would in reality be without meaning; it would mean that all
demands from the employees could be ignored by the employer.
The applicant furthermore submits that Article 11 protects the
right of the union to be heard in some way during the course of
collective bargaining. In addition, the applicant refers to the ILO
Conventions Nos. 87 and 98 which give unions the right to collective
bargaining.
THE LAW
The applicant union complains of the refusal by the Queen of
Denmark to conclude a collective labour agreement and invokes Article
11 para. 1 (Art. 11-1) of the Convention which reads:
"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."
In the present case the Commission does not find it necessary to
determine whether the actions complained of are to be considered as
actions of the Danish State as implied by the applicant. Even assuming
this to be the case the application is inadmissible for the following
reasons.
The Commission recalls that while Article 11 para. 1 (Art. 11-1)
of the Convention presents trade union freedom as one form or a special
aspect of freedom of association, the Article does not secure any
particular treatment of trade unions, or of their members, by the
State, such as the right that the State conclude any given collective
agreement with them. Such a right is not indispensable for the
effective enjoyment of trade union freedom and in no way constitutes
an element necessarily inherent in a right guaranteed by the Convention
(cf. Eur. Court H.R., Schmidt and Dahlström judgment of 6 February
1976, Series A no. 21, p. 15, para. 34).
On the other hand, the phrase "for the protection of his
interests" shows that the Convention safeguards freedom to protect the
occupational interests of trade union members by trade union action,
the conduct and development of which the Contracting States must both
permit and make possible. It follows that the members of a trade union
should be heard, but Article 11 para. 1 (Art. 11-1) of the Convention
leaves each State a free choice of the means to be used towards this
end. What the Convention requires is that trade unions should be
enabled to strive for the protection of their members' interests (cf.
Eur. Court H.R., Swedish Engine Drivers' Union judgment of 6 February
1976, Series A no. 20, p. 15-16, para. 40).
In the present case the applicant union does not dispute that it
can engage in various kinds of activity vis-à-vis the Queen. It can,
for instance, present claims, make representations for the protection
of the interests of its members, and negotiate with the Queen,
represented by the Lord Chamberlain. This indeed also appears from the
letter received from the Queen's lawyers on 15 September 1989. Nor does
the applicant union allege that such steps would be ignored. In these
circumstances the fact alone that the Queen has, as a matter of
principle, refused to enter into collective agreements with the
applicant union does not constitute an interference with its rights
under Article 11 para. 1 (Art. 11-1) of the Convention. It is not
necessary, therefore, to have regard to paragraph 2 of this provision.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy