FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58341/00
by Hans Eigil MADSEN
against Denmark
The European Court of Human Rights (First Section), sitting on 7 November 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrV. Zagrebelsky, judges,
MrS. Nielsen, Deputy Section Registrar,
Having regard to the above application introduced on 9 June 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows
THE FACTS
The applicant, Hans Eigil Madsen, is a Danish national, who was born in 1974 and lives in Glostrup. He is represented before the Court by Mr Harlang, a lawyer practising in Copenhagen The respondent Government are represented by their Agent Mr Hans Klingenberg, the Ministry of foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
From 25 April 1998 until 23 May 2000 the applicant was employed, notably as a passenger assistant by a Danish shipping company, henceforth called DFDS (Scandinavian Seaways), and he was a member of a trade union, henceforth called DSRF (Dansk Sø-Restaurations Forening).
In his employment the applicant had no responsibility for the primary operation of the ship but as a crewmember he was involved with the safety on board. At the relevant time he worked in shifts of 16 days at work on board followed by 8 days of leave on land.
DFDS had issued a circular on 15 April 1993 laying down that all staff on board had to submit to an alcohol test if so required by the authorities or the shipping company/shipmaster.
On 11 June 1999 DFDS issued a new set of regulations concerning its staff policy on alcohol and drugs which inter alia stated that when on duty on board the employees were allowed a blood alcohol level of 0.2 per mille and when on leave on board 0.4 per mille. When on board the employees were not allowed to be in possession of or use drugs or any other intoxicating substances or have any remains thereof in their bodies traceable by a urine test. A passage headlined “control” stated:
“By request of authorities, the Captain or DFDS all employees are under an obligation to submit to tests for alcohol, drugs or any other intoxicating substances. The employees can expect to undergo such a test without notice at least once a year.”
A passage headlined “violation of these regulations” stated inter alia:
“A violation of these regulations will be regarded as a considerable breach of the conditions of employment and can lead to immediate dismissal...”
A copy of the regulations was distributed to the employees who were requested to sign it thereby confirming that they have read and understood it.
In the summer of 1999 DFDS introduced random mandatory alcohol and drug test requiring the person concerned to provide a sample of urine.
In letters of 6 July and 2 August 1999 DSRF and another trade union henceforth called RBF (Restaurationsbranchens Forbund) informed DFDS that they could not approve of the new set of regulations. Thus, a conciliation meeting was held on 28 July 1999 between the employer and the said trade union, but the parties failed to reach an agreement.
On 15 September 1999 the applicant, allegedly without any kind of suspicion, was requested to provide an urine sample behind a screen in a room in which a person from a British company called Medscreen, hired for this purpose, was present. It appears that no trace of alcohol or drugs was found.
DSRF and RBF instituted civil proceedings against DFDS before a Court of Arbitration claiming that DFDS should acknowledge that the control procedure introduced by the regulations of 11 June 1999 was wrong and that accordingly, despite any given signature the employees could not be obliged to provide a urine sample. Among other arguments they claimed that the random urine tests were in breach of Article 8 of the Convention. On 23 February 2000 the Court of Arbitration found for DFDS. In its decision the Court stated:
“Since a majority could not be obtained amongst the arbitrators the case will be decided by the president who states:
Pursuant to case law and practises in labour market matters the right of management encompasses the right to issue regulations justified by operational considerations. Likewise, the management have a right to introduce measures of control justified by operational considerations if such measures have a reasonable purpose, do not offend the employees’ dignity, and do not cause any loss or appreciable inconvenience for the employees.
It is undisputed that alcohol is a legal stimulant and drugs are not, though in Denmark the possession of hashish for ones own consumption is seen as a minor offence. The presence of drugs on board might in certain countries lead to the detention of the ship or to other sanctions against the ship, which is one of the reasons why the merchant navy prohibits any possession of drugs on board.
The past regulations [of 1993] issued by DFDS solely authorised a control measure with regard to the employees’ alcohol consumption. It appears that the past regulations were not objected to and, as the case has been presented before the Court, it is mainly the test introduced [in 1999] for drugs and other intoxicating substances that caused the present dispute.
It is undisputed that on two occasions within the last half year two employees have been in possession of and used drugs. The testimonies heard before the court substantiate that some employees on board have used drugs as a stimulant, which must be considered a serious problem. Therefore, DFDS do have a justified reason for introducing measures of control suitable and contributing to solve this problem.
The consumption of alcohol will usually be traceable by the smell or by using a breathalyser. This is not the case when it comes to drugs or any other intoxicating substances. Taking a blood sample would require the consent of the person concerned. It is indeed very difficult simply by observation to ascertain whether a person has used drugs and a clinical test does not with sufficient certainty provide an indication of the employee’s ability to perform his or her duty. Thus, providing a urine sample is a possible measure of control.
There is no substantiation for assuming that DFDS uses the test for any other purposes than to control the employees’ consumption of alcohol and drugs. No information is provided as to whether the samples are stored, and in the affirmative how, but any extension of the test, be it on the basis of a sample already submitted or of future tests, do require that the employees are informed. Also such an extension may be brought before a Court of Arbitration for review.
The employees do not suffer any loss as the test is submitted to during working hours.
The control measure introduced by DFDS applies to all employees on board including the Captain. X testified that the test is performed in a room in private. Thereafter the urine sample is handed over. In this way the test cannot be considered to expose the individual’s decency. In addition, since everybody is obliged to submit to the test the individual’s honour cannot be considered infringed.
The plaintiff has submitted that the test infringes the employees’ spare time, as it will reveal which activities the employees have been involved in. However, an employer must be entitled to demand that an employee coming to work is capable of performing his or her duties. Accordingly, this entails some limits on the employees’ spare time before coming to work. However, having regard to the fact that the consumption of alcohol and the use of drugs, unless taken on a regularly basis, do not leave traces for more than one or two days, the Court does not find that the measure in question infringes the right to respect for private life to such an extent that random tests thereby should be excluded. The employees’ rotation system whereby a leave on board is followed by a leave off board does not reverse this finding.
The Chemical-Legal Institute (Retskemisk Institut) has stated that besides from reducing learning and memory, using hashish might reduce one’s psychomotor functions up till 24 hours when doing complex tasks. Perhaps no problems will occur when doing the daily tasks that the plaintiff’s members perform. Nevertheless, as all crew members are part of the safety crew, though rarely needed, it is absolutely essential that they are, in a fully adequate way at all times, able to perform functions related to the safety on board, which in case of a catastrophe might entail complex tasks. Accordingly, operational considerations do justify that the defendant introduced the control measure in question. The fact that no survey has been carried out as to the customers expectations to the safety on board does not reverse this finding since, having regard to the latest catastrophes on ships in the Nordic oceans, a customer has a right to assume that the shipping company aim to have as much safety on board as possible, and that the company makes sure that its crew members can perform their safety tasks in a fully adequate way.
The regulations in question contain a passage according to which a violation will lead to immediate dismissal. The defendant cannot unilaterally by introducing such a passage change the required conditions for a dismissal, and a given signature by an employee on the regulations does not entail that such a change has been accepted. However, with regard to a possible dismissal the defendant did in fact express in the pleading that the burden of proof falls upon the shipping company.”
B. Relevant domestic and international law and practice
Below is a general description of the Danish industrial relations system, also known as the “Danish Model”.
The struggle at the end of the 19th century between on the one side employees and their unions (notably what is today called the LO, i.e. the Danish Federation of Trade Unions) and on the other side the employers and their federations (mainly the central organisation DA, i.e. the Danish Employers Confederation) resulted in the so-called September Agreement from 1899 between the LO and the DA. The Agreement laid down five major principles:
1. the right of employees to organise in trade unions;
2. the right of the employers to manage and control work;
3. the right to industrial actions (strike, boycott and lockout) to obtain
e.g. a collective agreement;
4. the embargo on industrial action which means that no strikes are
lawful during the term of a collective agreement;
5. the establishment of a special arbitration tribunal to deal with all
violations of the September Agreement.
The September Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners. By tradition the Danish legislature plays a minor role as regards governing wages, salaries and employment conditions. Accordingly, rights imposed by statute in other countries have in Denmark been obtained by agreements between the labour market partners. It is thus characteristic of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individuals), labour law principles and general statutes and rules laid down in pursuance of statutes.
Thus, according to the “Danish Model” the content and scope of an employer’s managerial right or his right to carry out control measures depend on labour law principles in so far as it is not governed by any agreements or by statutes or rules laid down in pursuance of statutes.
Disputes between the labour market parties are, failing friendly settlement, finally determined by either courts of arbitration or by the Labour Court depending on the dispute in issue.
Control measures.
As stated above, the September Agreement from 1899 acknowledged the employer’s right to manage and control work. The right to carry out control measures was acknowledged firstly in a decision by a Court of Arbitration from 1913, and confirmed by subsequent case law. According to the said case law, the following guidelines have been characterised as reasonable control measures:
1. The control measure may not be unnecessary, but must serve a sensible purpose.
2. The form of it may not be humiliating for the employees.
3. It may not cause any loss or significant inconvenience.
4. It must be possible to submit the justification of the measure to industrial arbitration.
5. When a control measure has proved expedient and has been practised on the majority of the company employees, it can be extended to cover the rest of the staff.
6. The employer should notify his staff as early as possible of any contemplated control measure.
7. Employees shall - at least in so far, cf. point 4 above - observe the employer’s requirement of introduction of a control measure, and the trade union may be held responsible if it supports any resistance.
8. The collective agreement need not include any authority for the introduction of control measures. If a regular scheme has been laid down in the collective agreement, the employees may reject changes during the term of the agreement if they have a legitimate interest in raising such objections.
9. Normally there is no obligation to compensate the time spent in connection with a control measure because such obligations only exist if the measure results in “undue delay” to the employees.
10. No claim can be made to leave salaried employees (masters, foremen) out of the search scheme.
11. Control measures (in particular searches) must be carried out correctly and unassailably, but not necessarily by persons who are independent of the employer.
12. Controls of women (searches) must be carried out by women.
Act on Use of Health Data.
Act no. 286 of 24 April 1996 on Use of Health Data etc. on the Labour Market (Lov om brug af helbredsoplysninger på arbejdsmarkedet) defines the situation in which an employer is entitled to request health data and does not exclude any specific testing method. The explanatory notes to the Bill forming the basis of the Act (L 13 of 4 October 1995) gives a detailed account of the scope of the Act. The notes state partly which situations are comprised by the Act, partly which situations fall outside the Act. Among other thing is stated (see para. 3, section C, of the general explanatory notes of the Bill):
“This Bill does not affect the employer’s right to institute general control measures affecting employees, e.g. in the form of tests to detect the abuse of alcohol or drugs, provided that such tests are not intended as health examinations”.
It is further stated (see the special explanatory notes to section 1 of the Bill):
“In certain cases a personal examination is in the nature of a control measure in which no data on diseases or symptoms of a disease is requested. This is the case, inter alia, when an employer wants to check by blood sampling whether an employee has alcohol in his blood in contravention of the employment contract.
In such cases the employee will most often have signed a declaration to the effect that he is willing to submit to such checks. Other stimulants than alcohol may be involved.
Such examinations fall outside the scope of the bill to the extent the individual measure is not also intended to procure data on diseases or the risk of developing or contracting a disease. Whether such prohibition and the pertaining checks are justified is a general question under employment law.”
ILO
The ILO joint Maritime Commission adopted in 1991 a resolution concerning drugs and alcohol in the maritime industry. Moreover, the joint ILO/WHO Committee on the Health of Seafarers adopted in 1993 the Guiding Principles on Drugs and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry.
Based on the ILO Convention no. 73 on the Health of Seafarers, which entered into force on 1 August 1955, Denmark has adopted a number of legal provisions as well as an executive order (no. 903 of 28 September 1999) concerning medical examination of seafarers, the purpose of which is to ensure, having regard to the safety of the vessel and the safety and health of everybody on board, that the seafarers’ health is satisfactory. Pursuant to the said executive order the consequence of the use of drugs or hashish or abuse of medicine or alcohol is absolute rejection irrespective of the relevant person’s function on board the vessel.
The Seamen’s Act
Pursuant to the first sentence of section 59 (3) of the Seamen’s Act (cf. Consolidated Act no. 766 of 19 September 1995) bringing drugs and other toxic substances on board a ship is prohibited. Pursuant to subsection (4) of the same provision, the shipmaster may subject the seaman’s recreation room to a search if he has reasonable grounds for suspecting that something illegal has been brought on board. The seaman is entitled to be present at the search. The provision is supplemented by section 17 (1)(iii) and (vi) of the Act according to which a shipmaster can dismiss a seaman if he offends grossly while on duty by repeated intoxication, or if the person in question conceals on board dutiable goods or goods prohibited as export articles at the place of departure or as import articles at the place of destination. According to Danish case law, a single incident of gross intoxication may lead to dismissal. However, in a recent judgment of 12 April 2002 (published in the Weekly Law Journal (Ugeskrift for Retsvæsen) 2002, p. 1579) the Maritime and Commercial Court found that an employer (DFDS) unlawfully had dismissed one of its employees, who worked as a passenger assistant and who had submitted to a urine test, which proved positive for cannabis. In this finding the Maritime and Commercial Court emphasised that the dismissal had been executed without any assessment of the concrete circumstances of the case and without the employer having gathered further information, notably by hearing the employee. Thus, the court found that the dismissal was disproportional to the offence committed.
COMPLAINTS
The applicant complains, under Article 8 of the Convention, that DFDS’ requirement that its employees submit to random control measure by means of providing a urine sample interfered with his right to respect for private life and that this interference was not in accordance with the law or necessary in a democratic society.
THE LAW
1. The applicant has specified that he does not as such complain about the specific test to which he submitted on 15 September 1999. Rather, his complaint relates to the general regime under which he was obliged to submit to random urine testing.
2. The respondent Government firstly maintain that the application should be declared inadmissible due to the applicant’s failure to exhaust domestic remedies. In this respect they argue that the dispute concerned interpretation of general legislation, including the Convention which is incorporated in Danish law by statute, which falls exclusively within the jurisdiction of the ordinary courts.
Secondly, the Government maintain that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention in relation to the award of 23 February 2000 by the Court of Arbitration in that he was not a party to those proceedings.
The applicant disagrees.
The Court considers that the questions whether the requirements as to exhaustion of domestic remedies and the applicant’s status as a victim are fulfilled can be left open, since in any event the Court finds that the case is manifestly ill-founded for the reasons set out below.
3. The applicant’s complaint, set out above, concerns Article 8, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In the Government’s view, the control measure in dispute employed by DFDS does not constitute an interference within the meaning of Article 8 of the Convention in that the urine testing was not effected by the use of coercion, including in particularly force, or by use of threats of punishment or disciplinary sanctions. In the alternative the Government submit that there has been no interference by a public authority.
The applicant disagrees.
The Court finds it unnecessary to examine these issues further but will in the circumstances of the case proceed on the assumption that there has been an interference by a public authority within the meaning of Article 8 § 1 of the Convention. Accordingly, the Court will examine whether the interference was justified under Article 8 § 2 of the Convention.
In this respect the Government submit that DFDS’ requirement of random urine testing of its employees for alcohol, drugs and other intoxicants was “in accordance with the law”. Referring to the “Danish Model” they recall that to the extent an employer’s managerial right or his right to carry out control measures is not governed by any agreements or by statutes or rules laid down in pursuance of statutes, the contents and scope of such rights depend on labour law principles. They reiterate that the employer’s right to manage and control work was acknowledged by the September Agreement of 1899 and since in numerous agreements as well as in case law, and that the right to carry out control measures was acknowledged firstly in a decision by a Court of Arbitration from 1913 and subsequently confirmed by case law.
The Government point out that it also follows inter alia from the explanatory notes to the Act on Use of Health Data, that the legislature (Government and Parliament) has presupposed that employers have a possibility of introducing such control measures.
According to the said labour law principles it follows that neither the employer’s managerial right nor his right to carry out control measures is unlimited. As to the latter, the conditions are that such do not constitute an infringement on the employees, that they do not cause any loss or significant inconvenience to the employees, and that they serve a sensible purpose, that is be based on operational considerations.
The Regulations of 1999 were issued on the basis of labour law principles, being the employer’s managerial right and the right to carry out control measures. The regulations stated clearly when and under which conditions DFDS could order the employees to submit to urine test for alcohol, drugs and other intoxicants. Thus the regulations must be deemed accessible and the contents predictable.
Consequently, in the Government’s opinion, the private employer’s possibility of introducing control measures has sufficiently “basis in Danish law”, the rules are “accessible”, the state of law is predictable, and the rules of law also comprise sufficient restrictions to protect against arbitrariness.
Having regard to the fact that all crew members employed by DFDS formed part of the safety crew, the Government maintain that the legitimate aims are at least covered by the terms “public safety” or “protection of the rights and freedoms of others”, being notably the relevant passengers.
Finally, the Government maintain that DFDS’ requirement that their employees’ submit to urine testing for alcohol, drugs and other intoxicants is necessary in a democratic society. They contend that the case concerns an issue in which the State has a broad margin of appreciation. Moreover, referring to the award of 23 February 2000 in its entirety the Government find that the grounds which have been elaborated on by the Court of Arbitration were both relevant and sufficient. They note in addition that the maritime accidents in recent years have emphasised the importance of an optimum safety plan on board a vessel. In this respect they refer inter alia to the ILO joint Maritime Commission’s adoption in 1991 of a resolution concerning drugs and alcohol in the maritime industry, and the adoption in 1993 by the joint ILO/WHO Committee on the Health of Seafarers of the Guiding Principles on Drugs and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry.
Thus, the Government submit that the random testing of all staff on board a passenger vessel has a preventive effect on the use of alcohol and drugs, and is broadly recognised as relevant and necessary for the protection of the life and security of everybody on board.
Finally, as regards the requirement of proportionality, it is the Government’s conclusion that the method used is the least interfering control method possible, and that it constitutes a very limited interference compared with the aim.
The applicant maintains that DFDS’ possibility of requiring random urine testing was unjustified, notably since the employer by means of such a control measure could ascertain whether or not the applicant had drunken alcohol or/and taken drugs in his spare time off the ship. In this respect he recalls that he worked in shifts; 16 days at work on board followed by 8 days of leave (spare time) on land.
Thus, in the applicant’s view the State has a positive obligation to secure by way of legislation that a private employer is excluded from requiring urine testing as part of a control for alcohol, drugs or other intoxicants.
The applicant submits that no legislation exists in Denmark authorising or regulating the regime whereby DFDS can require their employees to submit to urine testing.
He points out that the shipping trade is not covered by any central agreement between employer’s federations (e.g. similar to the DA) on the one side and trade union federations (e.g. similar to the LO) on the other side. Thus, the applicant alleges that DFDS’ right to manage and control work is unrestricted.
Accordingly, in the applicant’s opinion, the need for legislation is imperative. The “Danish Model” cannot lead to the Government being excused from its obligation to ensure the protection of Danish workers in compliance with the Convention. Also, the applicant notes that legislation exemplified by the adoption of the Act on Use of Health Data was compatible with “the Danish Model”.
With regard to the question whether the State have failed to strike a fair balance between the applicant’s interest on the one hand and notably the interest of DFDS on the other hand, the applicant alleges that control measures of the kind in dispute are not used by the Defence Forces, the Navy, the Rescue Services, the Public Train Service, the hospitals or any where else in Danish society where the services or the tasks performed entail responsibility for other people or/and items of great value. Therefore, in the applicant’s opinion, exceptional rules, like DFDS’ Regulation of 1999, applying to employees in the shipping trade lacks justification.
Moreover, the applicant considers that a urine test which is carried out with intervals of several months in order to reveal an employee’s activity in his spare time cannot in any event guarantee that the employee will abstain from drinking or taking drugs while on board the ship, regardless of the fact that it is prohibited. In order to be efficient, such test should be taken every day prior to allowing employees to work.
The applicant therefor maintains that DFDS’ control measure cannot be justified by the safety on board, and he finds that the State has an obligation to secure that all citizens have the same right to a private life without interference from their employer, notably that this freedom must be secured through legislation.
The Court recalls that an interference with the exercise of an Article 8 right will not be compatible with Article 8 § 2 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under that paragraph and is “necessary in a democratic society” for the aforesaid aim or aims (see the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 19, § 43 and Pretty v. United Kingdom, no. 2346/02, 29 April 2002, § 68).
The Court reiterates that the expression “in accordance with the law”, within the meaning of Article 8 § 2 of the Convention, requires that the impugned measure should have some basis in domestic law and that the law in question should be accessible to the person concerned – who must moreover be able to foresee its consequences for him – and compatible with the rule of law (see, inter alia, Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, § 49, the Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 20, § 27 and Camenzind v. Switzerland, judgment of 16 December 1997, § 37, reports 1997-VIII). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see e.g. Vogt v. Germany, judgment of 26 September 1995, p. 24, § 48).
In the present case a new set of regulations concerning DFDS’ staff policy on alcohol and drugs was issued on 11 June 1999 and a copy of the regulations was distributed to the employees who were requested to sign it thereby confirming that they have read and understood it. The regulations contained a passage headlined “control” which stated that “by request of authorities, the Captain or DFDS all employees are under an obligation to submit to tests for alcohol, drugs or any other intoxicating substances. The employees can expect to undergo such a test without notice at least once a year.”
The regulations were issued on the basis of the employer’s right to manage and control work, acknowledged as a fundamental norm since the so-called September Agreement of 1899. The right to submit employees to control tests is part of that norm, which has been confirmed by numerous collective agreements as well as in case law from the Courts of Arbitration and the Labour Court. Evidently however, as also confirmed and evaluated on in the said case law, employers have neither unlimited managerial rights, nor unlimited rights to submit employees to control measures. As regards control measures the conditions provide that these serve a sensible purpose, that they are not infringing on the employees, and that they do not cause any loss or significant inconvenience to the employees. Or put in other words, as stated by the umpire in the Court of Arbitration’s decision of 23 February 2000, pursuant to case law and practises in labour market matters, the right of management encompasses the right to issue regulations justified by operational considerations, and the management have a right to introduce measures of control justified by operational considerations if such measures have a reasonable purpose, do not offend the employees’ dignity, and do not cause any loss or appreciable inconvenience for the employees.
The applicant has pointed out that the shipping trade is not covered by any central agreement between employer’s federations on the one side and trade union federations on the other side, and he thus alleges that DFDS’ right to manage and control work is unrestricted.
The Court notes, however, that according to the “Danish Model” the content and scope of the employer’s managerial right depend on labour law principles in so far as it is not governed by any agreements or by statutes or rules laid down in pursuance of statutes. Thus, as also taken for granted by the Court of Arbitration in its decision of 23 February 2000 the dispute between the trade unions DSRF and RBF and the employer DFDS was to be solved on the basis of case law and practices in labour market matters.
In these circumstances the Court is satisfied that the random control measure introduced by DFDS has sufficient basis in Danish law and was thus “in accordance with the law”.
With regards to the legitimate aims the Government have submitted that these are covered by the terms “public safety” or “protection of the rights and freedoms of others”, namely the relevant passengers. The applicant does not seem to disagree with this assessment, which the Court can endorse.
Finally, as to the question whether the assumed interference in dispute was “necessary in a democratic society” for the aforesaid aims, the Court recalls that according to its established case law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society” the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake (see. e.g. the above mentioned Pretty v. United Kingdom judgment of 29 April 2002, § 70).
As regards the necessity requirement, the arguments submitted by the Government have concentrated on the importance of the optimum functioning of a safety plan on board a vessel, while those submitted by the applicant have focused on the issue whether an employer by means of an urine test, that is not carried out on a daily basis, can prevent that employees on board, either during work or during their spare time, consume alcohol or use drugs.
The Court considers that it is common knowledge that the consumption of alcohol or the use of drugs usually has a direct influence to the detriment of ones ability to function mentally and/or physically.
With relevance to the current case it notes in particular the ILO joint Maritime Commission’s adoption in 1991 of a resolution concerning drugs and alcohol in the maritime industry, and the adoption by the joint ILO/WHO Committee on the Health of Seafarers in 1993 of the Guiding Principles on Drugs and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry.
As to relevant domestic legislation the Court recalls the executive order no. 903 of 28 September 1999 according to which the consequence of the use of drugs or hashish or abuse of medicine or alcohol is absolute rejection irrespective of the relevant person’s function on board a vessel, and the relevant provisions of the Seamen’s Act including related case law, according to which an incident of gross intoxication may lead to dismissal.
Moreover, the Court reiterates the opinion by the Chemical-Legal Institute submitted before the Court of Arbitration which stated that besides from reducing learning and memory, using hashish might reduce one’s psychomotor functions up till 24 hours when doing complex tasks.
Furthermore, the Court notes that all crew members employed by DFDS, when on board, are part of the safety crew and that although rarely needed it is absolutely essential that they are, in a fully adequate way at all times, able to perform functions related to the safety on board, which in case of a catastrophe might entail complex tasks.
Thus, taking all circumstances into account, the Court finds that DFDS was entitled to secure that its crew members were not under influence of alcohol or drugs while on board, that encompassing being on board subsequent to a leave off board.
The Court reiterates that is was undisputed during the proceedings before the Court of Arbitration that on two occasions DFDS employees had been in possession of and used drugs and that the testimonies heard before the said court substantiated that other employees on board had used drugs as a stimulant.
In these circumstances, the Court finds that considerations as to the public safety and the protection of the rights and freedoms of others, being passengers or crew members, justified that DFDS in order to secure this aim introduced adequate control measures like a random urine test by which both traces of alcohol and drugs could be detected.
In the award of 23 February 2000 it was stated that the consumption of alcohol and the use of drugs, unless taken on a regularly basis, will not leave traces for more than one or two days.
Thus, in the Court’s opinion a control test carried out in relation to crew members on board shortly after their leave off board does not in an unreasonable way interfere with their right to respect for private life during spare time.
The Court notes that when introducing the random urine test, DFDS informed the employees that they could expect to be submitted to such a test at least once a year. In the period from the introduction of the said control measure in June 1999 until the applicant gave his notice in May 2000, that is a period of approximately 11 months, the applicant had to submit to a random urine test once, namely on 15 September 1999.
In addition, the Court recalls that the control measure introduced by DFDS applied to all employees on board including the Captain.
In these circumstances the Court finds that the case discloses no elements which could lead to the conclusion that the control measure and the way it was carried out was disproportionate.
The Court concludes that the assumed interference in this case may be justified as “necessary in a democratic society” for the protection of the public safety and for the rights of others.
It follows that the application must be rejected as being manifestly ill‑founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy