AS TO THE ADMISSIBILITY OF
Application No. 36542/97
by Jaroslav NOVOTNY
against the Czech Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the 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 10 October 1996
by Jaroslav NOVOTNY against the Czech Republic and registered on
18 June 1997 under file No. 36542/97;
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 applicant is a Czech citizen, born in 1936 and residing in
Ostrava (Czech Republic).
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, can be
summarised as follows.
Since 1 July 1959 the applicant has worked for a State company
called Railway Constructions Brno (Zeleznicní stavitelství Brno). By
ruling (usnesení) of 1 April 1992 of the Brno-venkov District Court
(okresní soud) the company was entered in the Companies Register
(obchodní rejstrík) kept by the Brno Regional Commercial Court (krajsky
obchodní soud) as a public company (plc.). At the same time, two
organs of the company were appointed, namely the board of directors
(správní rada) and the supervisory board (dozorcí rada). The members
of the supervisory board were designated by the Federal Fund of
National Property (Federální fond národního majetku) and were entered
in the Companies Register.
On 23 April 1992 the applicant wrote a letter to the company
maintaining that according to the Commercial Code (obchodní zákoník),
one of three members of the supervisory board should be elected by the
employees, and announced his intention of standing in the elections.
On 24 March 1993 the applicant informed the president of his trade
union branch that the elections had not yet been held. In the middle
of April 1993 the applicant learnt that the elections had been
conducted on 9 April 1993 at a meeting of the presidents of the trade
union branches (Council of Presidents - Rada predsedu), and that a
representative of the employees to the supervisory board had been
elected.
On 15 April 1993 the company requested the Brno-venkov District
Court to remove the existing members of the supervisory board from the
Companies Register and to enter the three new ones (two had already
been elected at the general meeting (valná hromada) as representatives
of the shareholders of the company).
On 24 July 1993 the applicant issued proceedings against the
company at the Brno Municipal Court (mestsky soud) seeking an order
that the company hold, within two months, an ordinary election in
relation to the post of employees' representative on the supervisory
board and give the applicant an opportunity to participate in the
election.
On 7 April 1995 the Brno Municipal Court rejected the applicant's
action in the following terms:
"According to Section 38 of the articles of association of
the company, the supervisory board shall be elected by the
general meeting from the shareholders or other persons; the
board has three members; two members shall be elected and
removed by the general meeting and the third one shall be
elected by the employees in full-time employment. ...
Section 200 para. 1 of the Commercial Code provides that
the supervisory board must have at least three members.
Two thirds shall be elected by the general meeting and one
third shall be elected by employees of the company if the
company has, at the time of the elections, more than 50
employees in full-time employment.
According to Section 18 para. 1 of the Labour Code (zákoník
práce), trade union organs have the right to enter into
industrial relations including collective negotiations
under conditions provided for by law. According to
paragraph 2(c) of this Section, the employer shall discuss
with a competent trade union organ in particular those
measures which concern a higher number of employees. ...
According to the collective agreement of 1993 (kolektivní
smlouva pro rok 1993) and with reference to the provisions
of the Commercial Code, the general director of the company
invited, in a letter of 29 March 1993, the Council of
Presidents to conduct an election in relation to the post
of employees' representative on the supervisory board. The
Presidents of the trade union branches of the company were
invited ... to nominate a candidate for the election
scheduled for 9 April 1993. The applicant filed his
application as an independent candidate. The President of
the applicant's trade union branch was notified of the
latter's candidature and informed all its branches. Upon
a recommendation from technical economic employees, Mr B.
was proposed as a candidate. The elections were conducted
on 9 April 1993 in application of the rules on elections
(volební rád) of 7 April 1993, and Mr C. was elected member
of the supervisory board. ...
On the basis of these circumstances the court found that
the applicant's request that the company hold ordinary
elections was not founded. Having assessed all the
evidence, the court did not find any breach of legal
provisions by the company, in particular of the Labour Code
and the amended provisions. ...
The applicant has claimed the right to elect an employees'
representative to the supervisory board as a right
resulting from his contract of employment. Neither the
fact that the applicant did not participate in the election
nor the result of this election or the manner in which the
elected employees' representative accomplishes his
functions can be considered to be a violation of labour law
by the company."
On 22 May 1996 the Brno Regional Court (krajsky soud), upon the
applicant's appeal, upheld the judgment of first instance as regards
the merits and changed the judgment as to the court fees stating that
the parties had no right to recover the court fees, but ordered the
applicant to pay 431 crowns to the State. The Court held in
particular:
"According to Section 30 of the articles of association of
31 March 1992 ... the supervisory board shall be elected by
the general meeting from the shareholders and other
persons. The supervisory board has three members. On the
foundation of the company the founder shall appoint first
members of the supervisory board in the decision on the
foundation. Afterwards, two members shall be elected and
removed by the general meeting and the third one by the
employees in full-time employment. ...
The status of the supervisory board as an organ of a public
company (plc.) is governed by Section 197 et seq. of the
Commercial Code. The supervisory board is a collective
organ having at least three members. Section 200 of the
Commercial Code provides that 2/3 of the members of the
supervisory board shall be elected by the general meeting
and 1/3 by the employees of the company if the company has
more than 50 employees in full-time employment at the time
of the elections. ... The fact that 1/3 of the supervisory
board shall be elected by the employees constitutes a legal
guarantee that the employees can influence the composition
of the supervisory board. Section 200 of the Commercial
Code specifies who shall elect the supervisory board, but
determines neither who shall conduct the elections of the
employees' representative nor the way in which these
elections shall be held. It merely consistently separates
elections by the general meeting from elections of the
employees' representative. Section 200 only provides that
'1/3 shall be elected by the employees of the company'; it
only appears that all the employees of the company shall
participate in the elections. Neither the Commercial Code
nor any other legal act links the right of the employees to
vote and to be elected to the supervisory board and to
participate in organising the elections with any duty laid
on the company to organise and conduct these elections.
In a situation where the legal provisions do not place a
duty on a public company (plc.) to organise and conduct
elections of an employees' deputy to the supervisory board,
and where, at the same time, it has not been established
that the company concerned has undertaken such a duty by
means of a collective agreement, its articles of
association or otherwise, it is not possible to impose this
duty by a court decision."
On 7 October 1996 the applicant lodged a constitutional appeal
with the Constitutional Court (Ústavní soud) claiming that the
proceedings before the Brno Regional Court were unreasonably long and
unfair, in particular because the Regional Court had not informed him
of the possibility of filing a cassation appeal.
On 26 May 1997 the Constitutional Court rejected the applicant's
appeal as being manifestly ill-founded.
B. Relevant domestic law
Section 200 para. 1 of the Commercial Code provides in particular
that the supervisory board must have at least three members. Two
thirds shall be elected by the general meeting and one third shall be
elected by employees of the company if the company has, at the time of
the elections, more than 50 employees in full-time employment.
According to paragraph 2, the members of the supervisory board are
elected for the period determined by the articles of association, but
not for more than five years.
COMPLAINTS
The applicant complains that the proceedings before the Brno
Municipal Court and the Brno Regional Court as well as the Brno-venkov
District Court and the Brno Regional Commercial Court were unfair and
in breach of the Introduction and Articles 90, 95 and 96 of the
Constitution of the Czech Republic, Articles 1, 36 and 38 of the
Charter of the Fundamental Rights and Freedoms, Section 3 of the Civil
Code, Sections 2, 5, 6, 114, 115 and 200(b) of the Code of Civil
Procedure and Sections 1, 175, 200 and 265 of the Commercial Code. He
also claims that the proceedings concerning his action against the
company lasted unreasonably long. He further claims that the
proceedings were not held by an impartial tribunal in particular with
regard to the Brno Regional Court. He invokes Article 6 para. 1 and
Article 13 of the Convention.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention and 13 of the Convention that the proceedings before the
Brno Municipal Court and the Brno Regional Court as well as the Brno-
venkov District Court and the Brno Regional Commercial Court were
unfair and in breach of different national legal provisions. He also
claims that the proceedings concerning his action against the company
lasted unreasonably long and were not held by an impartial tribunal,
in particular with regard to the Brno Regional Court.
1. The Commission first notes that the proceedings before the Brno-
venkov District Court and the Brno Regional Commercial Court concerning
the registration of the member of the supervisory board elected on
9 April 1993 by the employees of the company in the Companies Register
relate to April 1993 which is more than six months before the date on
which the present application was submitted.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. As regards the proceedings before the Brno Municipal Court and
the Brno Regional Court dealing with the applicant's action against the
company, the Commission considers that as the requirements of
Article 13 (Art. 13) of the Convention invoked by the applicant are
less strict than the requirements of Article 6 para. 1 (Art. 6-1) of
the Convention the violation of which the applicant also alleges, the
applicant's complaints should be examined under the latter provision
which provides, inter alia, that in the determination of his civil
rights and obligations, everyone is entitled to a hearing within a
reasonable time by an independent and impartial tribunal.
The Commission further recalls that Article 6 para. 1 (Art. 6-1)
of the Convention extends only to "contestations" (disputes) over
(civil) "rights and obligations" which can be said, at least on
arguable grounds, to be recognised under domestic law; it does not in
itself guarantee any particular content of (civil) "rights and
obligations" in the substantive law of the Contracting States (see Eur.
Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A
no. 121-A, p. 32, para. 73). In particular, the dispute
("contestation") must be "genuine and serious" (see Eur. Court HR,
Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no.
163, p. 19, para. 67).
The Commission notes that in the proceedings brought before the
Brno Municipal Court the applicant sought an order that the company
hold, within two months, an ordinary election in relation to the post
of employees' representative on the supervisory board and give the
applicant an opportunity to participate in the election.
In the present case, the Commission notes that Czech law does not
contain a right for an employee to have elections to the supervisory
board of his company ordered at a particular time. Section 200 of the
Commercial Code merely provides that "the supervisory board must have
at least three members. Two thirds are elected by the general meeting
and one third is elected by employees of the company if the company
has, at the time of the elections, more than 50 employees in full-time
employment".
In any event, the "right" to participate in the elections of the
employees' representative to the supervisory board of the company or
to stand for election as such a representative cannot be described as
a right which is "civil" in nature. The Commission observes that even
though this "right" derives from the status of the employee which is
based on a contract of employment, a possible election to the
supervisory organ does not affect this status in any way. Moreover,
even assuming that the representative of the employees sitting on the
supervisory board defends the interests of the employees including
questions of salaries or working conditions, the Commission considers
that such a general task is not sufficiently decisive for his financial
and social situation as an employee.
The Commission considers, therefore, that the proceedings before
the Brno Municipal Court and the Brno Regional Court did not involve
a dispute ("contestation") about one of the applicant's civil rights.
It concludes that Article 6 para. 1 (Art. 6-1) of the Convention is
therefore not applicable in the present case.
It follows that this part of the application must be rejected as
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy