AS TO THE ADMISSIBILITY OF
Application No. 13538/88
by Anders MYRMAN
against Sweden
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 October 1987
by Anders MYRMAN against Sweden and registered on 15 January 1988
under file No. 13538/88;
Having regard to the report provided for in Rule 40 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 a Swedish citizen born in 1945 and resident
at Gävle. He is represented by Göran Ravnsborg, a lecturer at the
University of Lund.
The applicant is by profession an electrician and has been for
many years a member of the Swedish Electricians Trade Union (Svenska
Elektrikerförbundet). In 1981, the Trade Union Congress
(förbundskongressen) of the Electricians Trade Union recommended the
Board of the Union (förbundsstyrelsen) to start negotiations with the
Folksam Insurance company in order to organise a collective home
insurance for all the members of the Union.
On 20 September 1982, the Board of the Union recommended the
Council of the Union (förbundsrådet) to enter into an agreement with
Folksam for a collective home insurance.
On 23 November 1982, the Council of the Union decided to
accept the agreement not only on behalf of the Union but on behalf of
all the Union's individual members.
The agreement between the Union and Folksam came into effect
on 1 January 1983 and imposed a compulsory collective home insurance
on the members of the Union. There were no provisions for a member to
opt out. The Union was to pay 160 SEK per annum for each member.
The cost for the collective home insurance is funded partly
from Union funds and partly from an increase in membership fees.
It appears that of the 30 branches of the Union, 5 decided to
increase members' fees from 1,2 per cent to 1,3 per cent of the
member's salary.
The collective insurance scheme had met strong opposition from
a number of Union members, who considered the scheme interfered with
an individual's sphere of private life and deprived him of the power
to decide for himself. The applicant, with other Union members, took
proceedings against the Union before the Stockholm District Court
(tingsrätt) in order to obtain a declaration that the collective
insurance scheme, and the decisions on which it was based, were
invalid. The applicant argued that the Union's decision to agree to a
compulsory collective home insurance fell outside the objects of the
Union as provided for in the Union's regulations.
The District Court found in favour of the applicant in its
judgment of 17 January 1985. The Court found inter alia:
"... However, the opinion of the District Court is that
the home insurance cannot be considered to have such a
link to the Union members in their capacity as employees
that it falls within the scope of the objects of the Union
as those are defined in the private regulations of the Union.
For those reasons the Board of the Union and the Council of
the Union, which organs must be considered to have acted
in accordance with mandate from the Trade Union Congress in
this connection, have not had the power to decide on the
home insurance. Those Union decisions shall for that
reason ... be declared void."
The Union appealed to the Svea Court of Appeal (Svea hovrätt)
on 5 February 1985. In its judgment of 6 December 1985, the Court of
Appeal rejected the Union's appeal.
The Union appealed to the Supreme Court (högsta domstolen),
which delivered judgment on 6 May 1987. The Supreme Court found inter
alia that it was clear that the home insurance fell within the general
objects of the Trade Union Movement to promote the increase of its
members' financial standard. But it was doubtful whether it fell
within the scope of Section 1 of the Union's regulations which
provided that its task was to secure its members' interests in the
labour market and in the general economy and in that context and
otherwise contribute to a development of society on the basis of
democratic socialism. The Supreme Court nevertheless concluded that
the Union decisions as to home insurance could not be regarded as
concerning aims obviously alien to the objects of the Union and
therefore void. There was also no other ground on which the decisions
could be considered to be void.
COMPLAINTS
The applicant complains of the decision of the Supreme Court
empowering the Union to bind individual members in a collective
insurance scheme. He submits that the Court erred in its
interpretation of the membership agreement between the Union and its
members, in particular in not applying the principle of objective
interpretation and the principle that a party to an agreement is not
bound by anything which does not directly appear from the wording of
the agreement. He submits that the decision constitutes a serious
violation of his freedom of association, in both the negative and
positive sense, contrary to Article 11 of the Convention. He
considers that the insurance has no connection with his status as
employee or trade union member and is an entirely private matter with
which no other party should interfere. He argues that he has thereby
been deprived of his right to manage his own affairs. He has also
been compelled to become a policy holder in Folksam. He invokes
Articles 3, 8 and 17 of the Convention and Article 1 of Protocol No. 1
to the Convention.
The applicant also submits that the decision of the Supreme
Court cannot be accepted as the outcome of a fair hearing by an
impartial tribunal. He accordingly complains of a violation of
Article 6 para. 1 of the Convention.
The applicant also submits that there is no effective remedy
against the Supreme Court's alleged violations of the applicant's
rights. He invokes Article 13 of the Convention in this respect.
THE LAW
1. The applicant has complained that the Supreme Court has upheld
the decision of his Union to impose a scheme of collective insurance
on its members. He complains that this constitutes a violation of
Article 11 (Art. 11) of the Convention, which provides:
"1. 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.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law
and are necessary in a democratic society in the
interests of national security or public safety, for
the prevention of disorder or crime, for the
protection of health or morals or for the protection
of the rights and freedoms of others. This Article
shall not prevent the imposition of lawful
restrictions on the exercise of these rights by
members of the armed forces, of the police or of the
administration of State."
The Commission recalls that right to freedom of association
protects primarily against State interference. The question which
arises in the present case concerns the extent to which Article 11
(Art. 11) obliges the State to protect a trade union member against
measures taken by his union.
In the Commission's view the right to form trade unions
involves, for example, the right of trade unions to draw up their own
rules and to administer their own affairs. Such trade union rights
are explicitly recognised in Articles 3 and 5 of I.L.O. Convention
No. 87 which have been taken into account by the Commission in
previous cases (see e.g. No. 10550/83, Dec. 13.5.85, D.R. 42,
p. 178).
Nonetheless for the right to join a union to be effective the
State must protect the individual against any abuse of a dominant
position by trade unions (see Eur. Court H.R., Young, James and Webster
judgment of 13 August 1981, Series A no. 44, p. 25, para. 63).
Such abuse might occur, for example, where exclusion or expulsion from
a trade union was not in accordance with union rules or where the
rules were wholly unreasonable or arbitrary or where the consequences
of exclusion or expulsion resulted in exceptional hardship.
The Commission recalls that the present case concerns the
applicant's dispute as to the validity of the collective home
insurance scheme entered into by his Union. The Commission notes that
the Supreme Court found that the Union's decision to affiliate its
members to the collective insurance scheme fell within the scope of
the Union's legal competence under its regulations and that it was
accordingly valid. The Commission finds no indication that the
decision of the Supreme Court was unreasonable or arbitrary or that
the applicant's affiliation to the collective insurance scheme
resulted in such an abuse of a dominant position that his right to
freedom of association under Article 11 (Art. 11) of the Convention
can be said to have been violated by the respondent Government.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has also complained that the decision
constitutes a violation of Articles 3 (Art. 3), 8 (Art. 8) and 17
(Art. 17) of the Convention and Article 1 of Protocol No. 1 (P1-1)
to the Convention.
The Commission has examined these complaints as they have been
submitted by the applicant. The Commission observes that when the
applicant became a member of the trade union, he thereby entered into
a private agreement with the trade union, which, inter alia, implied
that he accepted the regulations of the trade union. The applicant was
able to challenge the validity of the insurance scheme before the
courts, which at the final instance found that the scheme was valid
and within the competence of the Union. The Commission also notes
that the resulting increase, if any, in the applicant's membership
fees was in the order of 0,1 per cent of his salary. The Commission
finds, in these circumstances, that the applicant's complaints do not
disclose any appearance of a violation of the rights and freedoms
invoked by him.
It follows that these complaints are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant has also complained that he did not have a fair
hearing before the Supreme Court contrary to Article 6 (Art. 6) of the
Convention.
The Commission considers that the fact that the Supreme Court
reached a decision, with which the applicant strongly disagreed, is
not sufficient to substantiate a complaint of not receiving a fair
hearing contrary to Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant has put forward no other complaint or mentioned any
procedural irregularity which could have impinged on the fairness of
the hearing.
In these circumstances, the Commission finds that the
complaint is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicant has lastly complained that he has no effective
remedy against the Supreme Court's decision contrary to Article 13
(Art. 13) of the Convention.
The Commission notes that the applicant complains of the
Supreme Court which is the highest judicial authority in the Swedish
legal system. In such circumstances, the application of Article 13
(Art. 13) is subject to an implied limitation (see e.g.
No. 8603/79 and others, Dec. 18.12.80, D.R. 22 p. 147 at p. 224) and
cannot be interpreted as guaranteeing a further remedy.
Consequently, this complaint must also be declared manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy