Communicated on 5 January 2021
Published on 25 January 2021
SECOND SECTION
Application no. 976/20
Haroldas HOPPEN and AMBER GRID
against Lithuania
lodged on 24 December 2019
STATEMENT OF FACTS
The first applicant, Mr Haroldas Hoppen, was born in 1968 and lives in Kaunas. The second applicant is the trade union of the enterprise Amber Grid (hereinafter “the enterprise”). The trade union is registered in Vilnius.The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.The first applicant’s work at Amber Grid enterprise and the employer’s attempts to dismiss him
The first applicant worked at the enterprise Amber Grid, which is the operator of Lithuania’s natural gas transmission system. Amber Grid was set up in 2013 as a spin-off of the company Lietuvos dujos (Lithuanian gas), where the first applicant worked as of September 1993.
In 2016, when the existing collective agreement at the enterprise was about to expire, the first applicant was elected to the labour council (darbo taryba), a body representing the employees’ interests. Together with three other employees he had been negotiating the terms of the new collective agreement. The negotiations were unproductive, and they were deferred to the next year.
On 1 January 2017 the new Labour Code came into force, which gave trade unions the right to negotiate collective agreements. The employees thus established a trade union at the Amber Grid enterprise. The first applicant was elected to its managerial body (council) and again entrusted with representing the employees in the negotiation of the collective agreement.
On 28 August 2017 the employer presented the first applicant with a proposal to leave his job at the enterprise voluntarily by September, offering him a nine month indemnity payment. The first applicant refused to accept that offer.
On 14 November 2017 the employer warned the first applicant that it intended to terminate his employment contract on the basis of Article 59 of the Labour Code – at the employer’s will (see the Relevant domestic law part below). As grounds the employer referred to the first applicant’s inability to work in a team, lack of cooperation, ignoring remarks by his superiors, all of which in the employer’s view did not contribute to the successful functioning of the enterprise.The State Labour Inspectorate’s decision authorising the first applicant’s dismissal
On 14 November 2017 the employer asked the State Labour Inspectorate to permit the dismissal of the first applicant at the employer’s will, referring to the aforementioned grounds as the basis for dismissal. The request for authorisation was based on Article 168 § 3 of the Labour Code (see the Relevant domestic law part below).
In his response to the State Labour Inspectorate, the first applicant contested the grounds of his dismissal, arguing that he was about to be got rid of for his trade union-related activity. The first applicant pleaded that the employer’s decision to dismiss him during the period of negotiations for a collective agreement amounted to intentional psychological pressure on the entire negotiating team, in order to subdue the employees. The applicant noted that in the past he had had good results at work, for which he had been commended.
In its response, the trade union opposed the first applicant’s dismissal. It submitted that the employer’s criticism towards the first applicant was entirely unfounded and that it had only started right after the negotiations for the collective agreement had begun. Prior to that, the first applicant had performed well, had received bonuses for good results at work, most recently in September 2017, and he had never been reprimanded. The trade union noted that it comprised 234 employees, which amounted to two thirds of all the staff at Amber Grid. The trade union provided the State Labour Inspectorate with a number of documents to support its arguments, including those to rebut the employer’s accusations against the first applicant.
By a decision of 8 December 2017 the State Labour Inspectorate granted the employer’s request to allow the first applicant’s employment contract to be terminated. The State Labour Inspectorate briefly stated that it had examined the materials submitted by the employer and the two applicants and that it had not established that the dismissal had been based on reasons related to the first applicant’s trade union activity.Proceedings in the administrative courts
The applicant then started administrative court proceedings, contesting the State Labour Inspectorate’s agreement that he be dismissed. The second applicant, as well as the enterprise Amber Grid, had the procedural status of interested third parties in those proceedings.
Responding to the lawsuit, the enterprise Amber Grid pointed out that the first applicant “was not being dismissed because of work-related violations”; rather, he was being dismissed on the basis of Article 59 of the Labour Code, that is, at the employer’s will. The employer also considered that the latter provision was applicable only to State enterprises, which Amber Grid did not deem itself to be, even if most of its shares were owned by the State.
On 11 June 2018 the Vilnius Regional Administrative Court granted the first applicant’s request and quashed the State Labour Inspectorate’s decision. The administrative court noted that, as required by Article 8 § 1 of the Law on Public Administration (see Relevant domestic law part below), individual administrative decisions had to be based on objective data (facts) and legal norms; they also had to be reasoned. This also followed from the established practice of the Supreme Administrative Court. On the facts of the case, the regional court found that the State Labour Inspectorate’s decision lacked any evaluation of facts and that none of the documents submitted to the Inspectorate by the parties or the parties’ arguments had been examined. It followed that the Inspectorate’s decision had been without grounds and thus failed to meet the requirements of Article 8 of the Law on Public Administration.
The Vilnius Regional Administrative Court also upheld the applicants’ interpretation of the domestic law and held that the employer should have asked the trade union for permission to dismiss the applicant, as this was stated in Article 21 § 1 of the Law on Trade Unions (see Relevant domestic law part below), rather than asking for authorisation from the State Labour Inspectorate. The regional court noted that the Law on Trade Unions was the lex specialis, because a trade union had been operating within the Amber Grid enterprise. Accordingly, having received the employer’s request to give approval for the first applicant’s dismissal, the Inspectorate should have treated the Law on Trade Unions as the lex specialis, should have verified whether the trade union’s agreement had been obtained, and, if not, should have explained to the Amber Grid enterprise the obligation to ask the trade union for such permission.
Lastly, the Vilnius Regional Administrative Court noted that Article 59 of the Labour Code allowed an employee’s dismissal at the employers’ will, without there being fault on the part of the employee. However, that legal norm did not apply to State institutions or to State-owned enterprises. The employer in question, Amber Grid, was a State-owned enterprise, since the State was in possession of 96 per cent of its shares. For the court, this was one more ground that should have precluded the Inspectorate from issuing authorisation for the first applicant’s dismissal.
The applicants state that, notwithstanding the first instance court’s decision, the Amber Grid enterprise took decisions relating to structural changes. As a result, the unit managed by the first applicant was abolished in July 2018, and its functions were transferred to other units. The courts dismissed the first applicant’s requests for protective measures to prevent the employer from pursuing such reorganisation until the court proceedings relating to his dismissal were over. The first applicant also asked the Amber Grid enterprise to be assigned duties analogous to those he had previously had, but his request was denied. The first applicant states that, as a result, from 1 August 2018 until 26 June 2019 (see below), while the court proceedings were pending, he worked in aggravated conditions.
Appeals having been lodged by the State Labour Inspectorate and Amber Grid enterprise, by a ruling of 19 December 2018 the Supreme Administrative Court returned the case for fresh examination. It held, among other things, that only matters related to the application of Article 168 § 3 of the Labour Code fell within the administrative courts’ jurisdiction, and that the guarantees set out in Article 21 of the Law on Trade Unions were not the subject matter of the case at hand. For the Supreme Administrative Court, disputes arising from the application of the latter legal provision were to be examined in the courts of general jurisdiction. Likewise, for the dispute at hand the interpretation of Article 59 § 1 of the Labour Code was irrelevant, since the only question which the State Labour Inspector had to verify under Article 168 § 3 of that Code was whether the employee was being dismissed for discriminatory reasons – his trade-union activity.
By a decision of 18 April 2019 the Vilnius Regional Administrative Court dismissed the first applicant’s complaint regarding the State Labour Inspectorate’s authorisation that he be dismissed. The first instance court considered that the first applicant had failed to prove discrimination because of his trade union-related activities. Even if the employer had suggested that the first applicant leave the enterprise on 28 August 2017 and afterwards on 14 November 2017, those dates having preceded the day when the collective agreement had been signed, this, as such, was not proof of discrimination against the first applicant. Similarly, the fact that in 2017 two other employees had left Amber Grid was insufficient to hold that this was in connection to their trade union activities. Likewise, even if the first applicant provided his appraisal reports from work demonstrating that he had been honest, reliable and fulfilling his duties beyond approach, this, for the first instance court, did not refute the circumstances that at work he was uncooperative and acted unilaterally. The court lastly considered that complaints raised by the first applicant with regard to the interpretation of Article 21 § 1 of the Law on Trade Unions were not the subject matter of the case and should be examined by the courts of general jurisdiction.
The first applicant appealed. He asked the Supreme Administrative Court to refer to the Constitutional Court the question whether Article 168 § 3 of the Labour Code was in compliance with Article 50 of the Constitution, which sets out trade unions’ right to function independently in the employees’ interests. He referred to the Constitutional Court’s rulings (see the Relevant domestic law part below).
In his appeal the first applicant also argued that the Law on Trade Unions was the lex specialis, and that therefore its Article 21 § 1 should have been applied in his case. The first applicant also stated that he had been the deputy head of the Amber Grid trade union, a fact which had been ignored by the first instance court. He argued that the State Labour Inspectorate had failed to examine whether he had not been a victim of discrimination.
The first applicant also referred to publicly available information from the State Labour Inspectorate which demonstrated that between July 2017 and June 2018 that institution had granted thirty out of thirty employers’ requests to authorise dismissals of members of trade unions’ managerial bodies. For the first applicant, this was testament to the Inspectorate’s partiality, as well as proof that that institution was unable to fairly examine the employers’ requests. The first applicant pointed out that his employer had proceeded with internal reorganisation before the final decision in the litigation regarding authorisation for dismissal had been reached.
The second applicant also asked the Supreme Administrative Court for a referral to the Constitutional Court of the question regarding the compliance of Article 168 § 3 of the Labour Code with Article 50 of the Constitution. The trade union considered that legal regulation where the employer, before dismissing a trade union member, should first consult the trade union, corresponded to the principle of trade unions’ autonomy, set out in the Constitutional Court’s ruling of 30 September 2003, and the principle of social partnership, set out in Article 161 of the Labour Code (see Relevant domestic law part below). Lastly, the trade union considered that the State Labour Inspectorate and the first instance court had unfairly placed the burden of proof of discrimination on the first applicant, and that they had not examined the facts related to the first applicant’s trade union activity.
The State Labour Inspectorate considered that it had examined whether the first applicant was not being dismissed for his trade union activities. It also saw no reasons why the Supreme Administrative Court should have doubts as to Article 168 § 3 of the Labour Code being compatible with the Constitution.
The employer, the Amber Grid enterprise, agreed that in the examined situation there was a contradiction between two pieces of legislation – the Law on Trade Unions and the Labour Code. Yet it considered that such a clash of legal norms had nothing to do with law being in contradiction to the Constitution, since neither of those two legal norms was in contradiction with the Constitution. The Amber Grid enterprise also considered that it had provided clear reasons why the first applicant was being dismissed, on the basis of Article 59 of the Labour Code, those reasons having been unrelated to his trade union activities.
By a final ruling of 26 June 2019, the Supreme Administrative Court dismissed the first applicant’s appeal inasmuch as the merits of his complaint were concerned, although the court slightly reduced the litigation costs awarded against the first applicant in favour of his employer.
The Supreme Administrative Court considered that labour relations fell within the sphere of private law. Accordingly, “it would seem” that the State Labour Inspectorate’s participation in those relations could be seen as excessive. Yet, administrative control exercised by the State Labour Inspectorate was justified, so that the employees’ representatives’ rights be protected. The Supreme Administrative Court held that therefore it had no legal ground to acknowledge that there could be doubts as to the compliance of Article 168 § 3 of the Labour Code with Article 50 of the Constitution. Thus, there was no need for a referral to the Constitutional Court.
Regarding the first applicant’s dismissal, the Supreme Administrative Court held that it would refrain from assessing the applicant’s arguments about the circumstances leading to his dismissal, because the court saw those arguments as being beyond the administrative court’s competence. Those arguments should be examined in the courts of general jurisdiction. At the same time, the Supreme Administrative Court shared the first instance court’s view that the first applicant’s dismissal had been based on reasons unrelated to his trade union activities.
The Supreme Administrative Court also held that the first applicant’s arguments that the State Labour Inspectorate had been partial, this having been proven by statistics (see above), was irrelevant for resolving the first applicant’s case. The Supreme Administrative Court considered that the State Labour Inspectorate’s agreement that the first applicant be dismissed had been lawful and founded.
On 26 June 2019 Amber Grid dismissed the first applicant at the employer’s will, on the basis of Article 59 § 1 of the Labour Code.Civil proceedings regarding the lawfulness of the first applicant’s dismissal
By a letter of 24 February 2020 the first applicant informed the Court that he had started proceedings in the civil courts contesting the lawfulness of his dismissal. He stated that at the preparatory hearing of that case he had been informed by the judge that the questions related to his status as the Amber Grid employees’ representative would not be examined in the civil proceedings, because those matters had already been examined within the administrative court proceedings.Proceedings before the Constitutional Court
On 11 October 2019, one month after individual constitutional complaint became available in Lithuania, both applicants lodged such a complaint with the Constitutional Court. They based the complaint on the circumstances of the first applicant’s case.
Firstly, the applicants argued a breach of the trade unions’ right to act autonomously, freely and independently, without the State authorities’ interference. The applicants argued that the State Labour Inspectorate and the administrative courts could not ignore legal regulation set out in the Law on Trade Unions, as well as the principles regarding the trade unions’ role and protection of their interests, set out in the Constitutional Court’s rulings of 14 January 1999 and 30 September 2003 (see Relevant domestic law part below). The applicants therefore asked the Constitutional Court to rule whether Article 168 § 3 of the Labour Code was in compliance with Article 50 of the Constitution.
Secondly, both applicants considered that the Amber Grid enterprise fell within the exception established in Article 59 § 1 of the Labour Code. This view was based on the State ownership of that enterprise, on the fact that by law that enterprise had the special status of an enterprise which was important for national security, and also on the fact that the Amber Grid had been listed among enterprises which were being managed by the State. The applicants therefore asked the Constitutional Court to rule whether Article 59 § 1 of the Labour Code was in compliance with Article 128 § 2 of the Constitution, which provides that questions regarding State property are regulated by law (see Relevant domestic law part below).
Thirdly, the applicants argued that termination, at the employer’s will, of the employment contract of a person who is a member of a trade union’s managerial body was the most severe form of discrimination against a trade union. The applicants submitted that a clash of interests was engrained in the very nature of the relationship between the employer and the employees. Accordingly, to permit application of Article 59 § 1 of the Labour Code in respect of members of the trade union managerial body would mean denial of the employees’ right to effective representation. For the applicants, such legal regulation turned the employees’ representatives into the employer’s hostages, who would unconditionally implement the employer’s will. The employees’ representation thus became merely formal, since otherwise the employees’ representatives would risk losing their job. The applicants thus asked the Constitutional Court to rule whether Article 59 § 1 of the Labour Code was in compliance with Article 50 of the Constitution.
By a decision of 22 January 2020 the Constitutional Court refused to examine the applicants’ individual complaint. It considered, firstly, that the applicants “essentially” were raising the question of compatibility of Article 21 § 1 of the Law on Trade Unions with Article 168 § 3 of the Labour Code, rather than asking whether the latter legal norm was in compliance with the Constitution. The Constitutional Court held that the question regarding legal norms’ compatibility did not fall within its competence. Secondly, the Constitutional Court considered that the State Labour Inspectorate’s decision as well as the Supreme Administrative Court’s rulings of 19 December 2018 and 26 June 2019, wherein “reasonableness of the State Labour Inspectorate’s agreement to dismiss the [first applicant] had been examined, could not be seen as adopted on the basis of Article 59 § 1 of the Labour Code and thus affecting the applicants’ constitutional rights and freedoms”. Therefore, the applicants “had no right” to refer to the Constitutional Court the second question.Relevant domestic law and practice
The Constitution reads:
Article 50
“Trade unions shall be freely established and shall function independently. They shall defend the professional, economic, and social rights and interests of employees.”
Article 128
“...
Procedures concerning the management, utilisation, and disposal of State property shall be established by law.”
The Law on Trade Unions (Profesinių sąjungų įstatymas) was adopted in 1991. The law has been amended a number of times, the last time being in 2013, and, inasmuch as relevant, at present reads as follows:
Article 21. Trade union members’ labour rights guarantees
“It shall be prohibited for the employer to terminate the employment contract with an employee who has been elected to the representative and (or) managerial body of the trade union operating in that enterprise, without having obtained prior approval of that trade union’s representative and (or) its managerial body.”
The Labour Code (Darbo kodeksas), in force as of 1 July 2017, reads as follows:
Article 59. Termination of an employment contract at the will of the employer
“1. The employer, except for the State and municipal institutions and organisations, financed from the State or municipal budget, ... State or municipal enterprises, public institutions, which are owned by the State or a municipality, ... has a right to terminate the employment contract with an employee for reasons [unrelated to the employee’s fault], having given the employee notice [at least] three days in advance and having paid an indemnity of no less than six average monthly salaries.”
Article 161. The purpose and principles of social partnership in labour relations
“1. The parties to an employment contract and the representatives thereof shall coordinate and realise their interests using forms of social partnership.
2. In implementing social partnership, the principles of equality of arms, goodwill and respect for legitimate mutual interests, voluntary and independent acceptance of the obligations that bind the parties, and the real fulfilment of obligations, as well as other principles established by labour law provisions, treaties of the Republic of Lithuania, and human rights standards, must be adhered to.”
Article 162. The parties to social partnership
“1. The parties to a social partnership – the social partners – shall be employee representatives and employer representatives as well as the organisations thereof...
2. The Government of the Republic of Lithuania or institutions authorised thereby ... shall be considered to be parties to a social partnership when they act as employers or representatives thereof, as well as in other cases established by this Code or other laws.
3. In the cases established by this Code or other labour law provisions, employees may participate in the social partnership directly.”
Article 168. Guarantees and protection from discrimination for persons carrying
out employee representation at the employer level
“...
3. For the period to which they are elected and six months after the end of their term, persons carrying out [the function of] employee representation may not be dismissed on the initiative of the employer or at the will of the employer, and their essential employment contract terms may not be made worse than their previous essential employment contract terms or than the essential employment contract terms of other employees of the same category, without the consent of the head of the territorial office of the State Labour Inspectorate responsible for the territory where the employer’s workplace is located ... The head of the territorial office of the State Labour Inspectorate must examine and reply to an employer’s substantiated request to give consent to terminate an employment contract or change essential employment contract terms within twenty working days of receipt of the request. Employees or representatives thereof are entitled to submit their opinion on their own initiative or upon the request of the head of the territorial office of the State Labour Inspectorate. The head of the territorial office of the State Labour Inspectorate shall give consent to terminate an employment contract or change essential employment contract terms if the employer presents data confirming that the termination of the employment contract or the amendments to the essential employment contract terms are not related to the employee representation activities being carried out by the employee and that the employee is not being discriminated against due to his or her employee representation activities or trade union membership. Upon receiving an employer’s substantiated request, the head of the territorial office of the State Labour Inspectorate shall inform the body representing the employee and the employee concerned thereof, and shall set a term of at least five working days for the employee representatives and the employee concerned to submit their opinion. The decision of the head of the territorial office of the State Labour Inspectorate may be appealed against in the procedure established by the Republic of Lithuania Law on Administrative Proceedings. The employment contract with a person carrying out employee representation may not be terminated until the labour dispute is settled...”
The Law on Public Administration (Viešojo administravimo įstatymas), insofar as relevant, reads:
Article 8. General requirements for an individual administrative act
“1. An individual administrative act must be based on objective data (facts) and the norms of legal acts, and the sanctions applied (withdrawal of a licence or authorisation, temporary prohibition to engage in particular activities or to provide services, fine, etc.) must be reasoned...”
In the ruling of 14 January 1999, on trade unions, the Constitutional Court held:
“3. On the compliance of Article 21 of the Law on Trade Unions with the Constitution.
Paragraph 1 of Article 21 of the Law on Trade Unions ... means that a trade union’s member makes use of trade union defence when the issue of his dismissal is decided. Thus, such a person, if his rights are compared with those of the other employees, enjoys additional guarantees due to his trade union membership.
The guarantees for [those trade union members who are elected to representative bodies of the trade union] ... are provided so that they would not be discriminated against because of their work in the bodies of the trade union, i.e. so that one would not do away with them because of their activities in the said bodies (for instance, groundless imposition of disciplinary penalties, dismissal, moving to another, worse job, etc.), as well as so that during their work in the said bodies their equal rights with the other employees would be preserved. Besides, Article 1 of the Convention ... Concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking adopted by the International Labour Organisation, ... ratified by the Republic of Lithuania on 23 June 1994, reads: “Workers’ representatives in the undertaking ... shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed agreements.” Thus, the provisions of ... Article 21 of the Law on Trade Unions are in line with the requirements of the said Convention to protect the representatives of employees from the dangers which may occur in connection with their activities in the trade union.
The impugned norms of Article 21 of the Law on Trade Unions regulate such employment relations when trade unions may defend only the persons who belong to this organisation. [The] said norms are to be assessed as additional guarantees of the rights of trade union members which on their own accord do not deny the defence of the rights of the other employees. Therefore, it should be concluded that Article 21 of the Law on Trade Unions is in compliance with Article 50 of the Constitution.”
In the ruling of 30 September 2003, on the property which used to be possessed by State trade unions, the Constitutional Court held:
“Article 50 of the Constitution formulates the basic principles of the status and activities of trade unions and indicates the trade unions’ functions.
While interpreting these provisions of the Constitution, the Constitutional Court held in its ruling of 14 January 1999 that trade unions are voluntary and independent organisations of employees. The employees join trade unions in order to defend their rights in an organised way. A person who joins a trade union of his own free will chooses this organisation as one of the forms of the protection of his labour rights and interests ...
The status and principles of activities of trade unions established in the Constitution together with the striving for an open, just, and harmonious civil society and State under the rule of law and the democratic character of the State of Lithuania established in the Constitution imply the principle of autonomy of trade unions with regard to the State and its institutions.
In this context it should be noted that the provision of Paragraph 1 of Article 50 of the Constitution that trade unions shall be freely established and shall function independently means, inter alia, that trade unions are independent of State authority and other State institutions, of employers and their organisations as well as of other organisations. Only the freely united trade unions which are functioning independently of State authority and other State institutions, of employers and their organisations as well as of other organisations can protect the professional, economic and social rights and interests of employees. Under the Constitution, there may be no such legal regulation which would restrict or deny the constitutional right of trade unions to establish themselves freely and to function independently while defending the professional, economic, and social rights and interests of employees.”
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that the State institutions – the State Labour Inspectorate and the courts – breached their right to a fair hearing, because instead of examining whether it had been reasonable to terminate the first applicant’s employment contract they merely relied on the subjective opinion of the employer. The applicants argue that since dismissal from work is the most severe form of discrimination against employees’ representatives, before granting the employer’s request to dismiss such a person the State institutions are under an obligation to verify properly whether weighty grounds to issue such authorisation exist. The applicants also plead that the State Labour Inspectorate and the courts shifted the burden of proof on to the applicants, who had to demonstrate discrimination, rather than requiring the employer to demonstrate that discrimination had been absent. In that context, the applicants also submit that the courts did not permit the first applicant to freely state his arguments in the courtroom, and did not take the applicants’ arguments and certain evidence into consideration.
The applicants are also dissatisfied that the Constitutional Court did not accept and examine their individual complaint, wherein they had raised issues related to the trade unions’ right to protect its interests.
The applicants further complain, under Article 14 of the Convention, taken in conjunction with Article 11, that the first applicant’s dismissal was an attack against the second applicant – the trade union, its freedom of association, as well against the employees’ right to form a trade union in order to collectively defend their rights. The applicants point out that the trade union’s managerial body had lost a member due to interference by a State institution, the State Labour Inspectorate. The applicants consider that, given the principle of a trade union’s right to act freely and independently, State institutions are not permitted to interfere in the trade unions’ activities. The applicants find the State Labour Inspectorate’s right to authorise that a member of the trade union’s managerial body be dismissed to be unjustified interference in the trade union’s right to freedom of association and to be discriminatory.
QUESTIONS TO THE PARTIES
1. Have the applicants had a fair examination of their case, as required by Article 6 § 1 of the Convention, inasmuch as this concerns their complaint of having been discriminated against for the first applicant’s trade union-related activity (see Danilenkov and Others v. Russia, no. 67336/01, §§ 124 and 136, ECHR 2009 (extracts))?
Have the administrative courts given due examination to the applicants’ complaints regarding the State Labour Inspectorate favouring employers? In this context the Court refers – but not exclusively – to the applicants’ submission that the State Labour Inspectorate as a rule grants the employers’ requests for the members of trade unions’ managerial bodies to be dismissed. The Court also refers to the applicants’ complaint that when giving its agreement to the first applicant’s dismissal the Inspectorate acted arbitrarily.
Have the State Labour Inspectorate and the courts given due consideration to the applicants’ argument that Amber Grid enterprise is State-owned, which, in the applicants’ interpretation of the domestic law, should have precluded the State Labour Inspectorate from authorising the first applicant’s dismissal?
Have the applicants’ arguments about breach of their right to freedom of association, under Article 50 of the Constitution, been given due consideration by the Constitutional Court?
2. Can the second applicant claim to be a victim of a violation of its rights under Article 14, taken in conjunction with Article 11 of the Convention?
Has there been a violation of the applicants’ right to trade union freedom, which is a particular aspect of freedom of association (see National Union of Belgian Police v. Belgium, 27 October 1975, § 38, Series A no. 19, and Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 39, Series A no. 20), under Article 11 of the Convention, taken in conjunction with Article 14 (see, for general principles, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 140-146 and 154, 12 November 2008)? Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of the first applicant’s trade union membership?
Has the State Labour Inspectorate given due examination to the employer’s and the applicants’ arguments? Has it specifically analysed them and reflected them in its conclusion to permit the employer to dismiss the applicant?
Have the State Labour Inspectorate and the administrative courts assessed whether there was a pressing social need to dismiss the first applicant (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 83, ECHR 2014 31045/10)?
Given the fact that the first applicant has been dismissed “at the employer’s will”, having regard to the interpretation given by the Lithuanian courts in the present case to existing anti-discrimination provisions, have the State Labour Inspectorate and the courts ensured that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests (see Trade Union of the Police in the Slovak Republic and Others v. Slovakia, no. 11828/08, § 55, 25 September 2012, Tek Gıda İş Sendikası v. Turkey, no. 35009/05, §§ 54-56, 4 April 2017, and Ognevenko v. Russia, no. 44873/09, § 83, 20 November 2018).
Given the clash in the legal regulation between Article 21 § 1 of the Law on Trade unions and Article 168 § 3 of the Labour Code, has the State fulfilled its positive duty to take reasonable and appropriate measures to secure the applicants’ rights under the Article 14, taken in conjunction with Article 11 of the Convention (see, National Union of Rail, Maritime and Transport Workers v. the United Kingdom, cited above, § 87; see also, mutatis mutandis, Danilenkov and Others, cited above, § 136)?
3. The parties are requested to inform the Court about the progress and outcome of the first applicant’s litigation in the civil courts challenging Amber Grid decision for his dismissal.
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