FOURTH SECTION
DECISION
Application no. 72417/10
Vasile PREDESCU
against Romania
The European Court of Human Rights (Fourth Section), sitting on 3 May 2016 as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris,
Iulia Motoc, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above application lodged on 19 October 2010,
Having regard to the observations submitted by the respondent Government and the applicant’s submissions,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vasile Predescu, is a Romanian national who was born in 1975 and lives in Timişoara.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. On 6 January 2000 the applicant was employed as an electrical technician by the Timişoara office of a multinational company, F.
5. According to a report issued on 17 January 2009, the general assembly of the Solectron Free Trade Union (Sindicatul Liber Solectron – “the union”), formed by 206 of F.’s employees, organised elections for executive positions (funcțiile de conducere) at the union. According to the same report, the auditing committee was listed among the union’s executive functions and the applicant was elected as a member of that committee.
6. On 28 January 2009 F. gave the applicant notice that he would be dismissed.
7. On 16 February 2009 the union applied to the Timişoara District Court for authorisation for the changes made on 17 January 2009 in the composition of the union’s executive bodies (organe de conducere). F. was not a party to the proceedings.
8. On 18 March 2009 the Timişoara District Court allowed the union’s application and ordered the registration of the changes in the composition of the union’s executive bodies in the Special Register for Unions, held at the aforementioned court’s registry.
2. The applicant’s dismissal and proceedings before the domestic courts
9. On 21 April 2009 the applicant was dismissed. The reason given in the dismissal decision, which was issued on the same date, was that the company had faced financial difficulties following a severe drop in client orders, which had forced it to reorganise and reduce its activities, to downsize and to remove 720 posts, including the applicant’s. The dismissal decision noted that the applicant was given the opportunity to apply for a position that had not been removed, but did not take up that opportunity. The dismissal decision also took account of the criteria established by the collective agreement concerning the order of priority in respect of dismissals and the fact that no other posts suitable for his professional qualifications or other posts in general had been available within the company.
10. On 19 May 2009 the applicant challenged the dismissal decision before the domestic courts and asked to be reinstated. He argued, inter alia, that on the dates that the dismissal notice and decision had been issued by the company he had already been an elected member of the union’s auditing committee and had therefore been occupying an elected position within the union. He stated that according to Article 60 of the Romanian Labour Code the company was not allowed to fire him while he held such a position. He further stated that he had been dismissed because on 15 January 2009 he had brought court proceedings for a salary increase and award of seniority bonuses and because as a union member he had caused problems for the company’s management in claiming his lawful rights.
11. F. defended itself by arguing that the applicant’s dismissal had been the result of a large downsizing process which had started in November 2008 and had been due to end in July 2009. Moreover, the dismissal had been lawful and had not breached the provisions of the collective agreement or the Romanian Labour Code.
12. On 25 November 2009 the Timiş County Court allowed the applicant’s claim, quashed the dismissal decision and ordered his reinstatement. It noted that the report of the meeting of 17 January 2009 had shown that the union had considered the auditing committee to be one of its executive bodies and that the applicant had been elected as a member of that committee. The court considered that even if it had accepted the company’s argument that the auditing committee had not been part of the union’s executive functions and that therefore the conditions set out by Article 223 of the Romanian Labour Code had not been met, the dismissal decision had still been unlawful because the provisions of Article 60 § 1(h) applied. The conclusion that at the time of his dismissal the applicant had been occupying an elected position in a union body (even if not an executive one, as Article 60 § 1(h) did not make the same distinction as Article 223) had become reasonable and even mandatory, given that he had been elected to the union’s auditing committee. Consequently, the dismissal decision had breached Article 60 § 1(h), given that that provision represented a legal safeguard against potential pressure on those occupying elected positions within the union from exercising their mandate. However, relying on the evidence before it, the court accepted F.’s argument that the selection of the staff affected by the downsizing process had been made by consulting with the trade union and by complying with the established criteria, in particular the level of professional performance and the order of priority set out in the collective agreement and the Labour Code.
13. F. appealed on points of law (recurs) against the judgment. It argued that the applicant’s dismissal had been lawful and justified by the company’s difficult financial situation.
14. The applicant reiterated the arguments raised before the first‑instance court.
15. By a final judgment of 21 April 2010, the Timişoara Court of Appeal allowed F.’s appeal on points of law, quashed the judgment of the first‑instance court and dismissed the applicant’s challenge to the decision to dismiss him. It held that Articles 9, 10 and 11 of Law no. 54/2003 concerned the protection enjoyed by representatives elected to a trade union’s executive bodies. The complimentary (complementare) provisions of Article 223 of the Romanian Labour Code concerned the same issues, while Article 60 § 1(h) prohibited dismissals during the exercise of the powers of an elected position. The collective agreement had also provided protection for representatives elected to the union’s executive bodies. Consequently, the court considered that it had been necessary to determine which of the union’s bodies were executive and whether the post of auditor had been an elected position.
16. In that connection, the court considered that Articles 8 and subsequent of Law no. 54/2003 provided that executive bodies were formed by elected union members. Moreover, the notion of an auditor and the functions of the auditing committee were regulated by Article 26 of Law no. 54/2003, which provided that the aforementioned committee operated according to the union’s constitution. Furthermore, according to the union’s constitution its executive bodies were the general assembly, the council and the permanent bureau. The union’s constitution also set out that the composition of the auditing committee was decided by the council and that its area of competence was approved by the general assembly.
17. The court held that according to the aforementioned legal provisions, taken together with the provisions of the union’s constitution, the auditing committee was neither an executive nor an elected body. While it was true that the applicant had been elected as an auditor, such a form of appointment had exceeded the provisions of the union’s constitution, which provided for the appointment of auditors by the council. In addition, the post of auditor could not have been an executive position because those positions had been clearly established by the union’s constitution.
18. The court also held that the provisions of Article 60 § 1(h) of the Romanian Labour Code had to be read in light of the provisions of Article 223 of the same code and Articles 8 to 11 of Law no. 54/2003. According to the aforementioned provisions, only workers occupying executive positions within the union enjoyed the protection claimed by the applicant. Consequently, the first-instance court had wrongfully held that the applicant’s dismissal had been unlawful.
19. Lastly, the court considered that it was unnecessary to examine the remaining aspects of the lawfulness of the decision in the context of F.’s appeal on points of law.
B. Relevant domestic law
20. The relevant provisions of the Romanian Labour Code in force at the material time read as follows:
Article 60
“(1) Employees may not be dismissed:
...
(h) while they hold an elected position within a union body, except in circumstances where the dismissal is ordered for serious or repeated disciplinary misconduct by those employees; ...
(2) The provisions of the first paragraph do not apply if the dismissal was ordered for reasons flowing from the employer’s judicial reorganisation or bankruptcy, according to law.”
Article 223
“(1) Representatives elected to a trade union’s executive bodies shall benefit from the protection of the law against any form of conditions, constraints or limitations in exercising their function.
(2) During their mandate and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot be dismissed for reasons which do not concern the employee’s person, for professional inadequacy, or for reasons connected to the exercise of a mandate received from other employees in the company.
(3) Other measures for the protection of representatives elected to a union’s executive body are provided in special laws and the applicable collective agreement.”
21. The relevant provisions of Law no. 54/2003 on trade unions in force at the material time read as follows:
Article 6
“Trade unions’ constitutions shall contain provisions with regard to:
...
(e) their executive bodies, name, method of election and removal, length of mandate and duties ...”
Article 8
“Members of a trade union with full legal capacity and who have not been prohibited as a complementary punishment from holding a position or practising a profession of the nature used by the sentenced person to commit the offence may be elected to executive bodies.”
Article 9
“The members of a trade union’s elected executive bodies shall benefit from the protection of the law against any conditions, constraints or limitations on exercising their function.”
Article 10
“(1) During their mandate, and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot have their work contracts terminated or changed for reasons not imputable to them, which the law leaves at the discretion of the employer, except with the written agreement of the elected executive collective body of the trade union.
(2) A change or termination of the individual work contract of representatives elected to a trade union’s executive bodies and of their members at the employer’s initiative for reasons which concern the trade union’s activities are prohibited.
(3) The provisions of the first paragraph do not apply to those who have been removed from executive positions held within the union for breaching the provisions of the [union’s] constitution or the law...“
Article 26
“(1) Reviews of a trade union’s own financial activities and of their social and financial units is carried out by the Auditing Committee, which operates according to the constitution ...”
22. The relevant provisions of the Solectron Free Trade Union’s constitution in force at the material time read as follows:
Article 19
“The trade union’s organisational structure includes: the General Assembly, the Trade Union’s Council, the Permanent Bureau and the Auditing Committee.”
Article 20
“The General Assembly is the trade union’s highest executive body...”
Article 23
“The activities of the General Assembly are organised and run by the Permanent Bureau.”
Article 24
“The General Assembly has the following duties: ... approves the competences and the report of the Auditing Committee ...”
Article 25
“The Trade Union’s Council is the trade union’s executive body which has decision-making and deliberative character and decides on the measures needed to enforce the resolutions and decisions adopted by the General Assembly ...”
Article 29
“The Trade Union’s Council has the following duties: ... decides on the composition of the Auditing Committee and any changes to it ...”
Article 31
“(1) The Permanent Bureau is the permanent executive body which carries out the operational management of the trade union and enforces the decisions of the General Assembly and of the Trade Union’s Council ...”
Article 34
“The Auditing Committee is the financial control body of the trade union’s economic and financial activities ...”
COMPLAINT
23. The applicant complained of a breach of his right to freedom of association.
THE LAW
24. Relying in substance on Article 11 and expressly on Articles 6 and 13 of the Convention, the applicant alleged that his union function had caused his dismissal, in breach of the legal provisions prohibiting the firing of workers occupying elected positions. Moreover, the Timişoara Court of Appeal had unjustifiably and arbitrarily refused to grant him the legal protection to which he was entitled as a union member elected to a union body.
25. The Court reiterates that it is master of the characterisation to be given in law to the facts of a case and does not consider itself bound by the characterisation given by an applicant or a government. It has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it. A complaint is characterised by the matters alleged in it and not merely by the legal grounds or arguments relied on (see, mutatis mutandis, Berktay v. Turkey, no. 22493/93, § 167, 1 March 2001, and Şişman and Others v. Turkey, no. 1305/05, § 16, 27 September 2011).
26. Having regard to the applicant’s allegations in the present case, the Court considers that they should be examined solely under Article 11 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to 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 the State.”
A. The parties’ submissions
1. The Government
27. The Government submitted that Article 11 was not applicable to the case. They argued that the applicant had not complained that it had been impossible for him to join the union or express himself within it, that his position within the union had caused tensions in his relationship with his employer or that his employer had discredited the union members.
28. The Government contended that the applicant had not stated a precise breach of his right of freedom of association and of joining a union and that there was no indication of a breach of his rights. There was no proof that the applicant’s employer had primarily dismissed union members during the process of reorganising the company and evidence suggested that there had been a good relationship between the two social partners.
29. The Government argued that there was no evidence in the file, to support the applicant’s allegation that his dismissal had been caused by his court claims for a salary increase after he had been elected as a member of the union’s auditing committee. In the absence of any conflict between the applicant and his employer prior to his dismissal, which could have shown a tense relationship between them, the Government considered that it was important to point out that the personal claims of elected union members did not fall under the protection enjoyed by unions under domestic and international law. Moreover, the Government contended that there had been no causal link between the position held by the applicant within the union and the aforementioned salary claim.
30. The Government further submitted that the applicant had been given the opportunity during his notice period to apply for another post in the company that had not been terminated and that he had been qualified for. However, he had ignored that opportunity.
31. The Government argued that the union’s constitution had not listed the auditing committee among its executive bodies. Moreover, the union had asked the domestic courts to validate the changes made in the composition of its executive positions following the elections held on 17 January 2009, but it had not asked them to change its constitution, the official document which regulated the scope of its activities, structure and operations. In the absence of such a request, the constitution had remained unchanged and the changes made in the composition of the union’s positions could not have been contrary to the constitution’s provisions.
32. The Government contended that the company had started its reorganisation process before the applicant had become a member of the auditing committee. Additionally, according to the Romanian Labour Code a union’s representatives no longer enjoyed legal protection when they had been dismissed as a result of a company’s reorganisation or bankruptcy.
33. The Government submitted that even assuming that the applicant’s union position could be considered to have been an elected one, or that the auditing committee could be considered as one of the union’s executive bodies, the applicant’s dismissal did not raise an issue under Article 11 of the Convention because his freedom of association as part of a union had not been breached by either his employer or the domestic courts.
34. The Government contended that even if it could be considered that there had been an interference with the applicant’s right to freedom of association, that interference had been lawful and necessary. In dismissing the applicant, his employer had relied on the combined provisions of the union’s constitution, the Romanian Labour Code and the relevant domestic legislation. Those provisions were accessible and foreseeable. By approving his dismissal the domestic authorities had also found the appropriate balance between the conflicting individual interests in question.
2. The applicant
35. The applicant did not submit observations to the Court. However, he confirmed that he maintained his application, without providing any further comments.
B. The Court’s assessment
36. The Court reiterates that Article 11 of the Convention mentions trade-union freedom as a specific aspect of the freedom of association, but does not guarantee trade-union members any particular treatment by the State (see National Union of Belgian Police v. Belgium, 27 October 1975, Series A no. 19, § 38; Akat v. Turkey, no. 45050/98, § 38, 20 September 2005; and Dumitrean v. Romania (dec.), no. 57664/08, § 29, 6 October 2015).
37. The Court notes that the applicant challenged his former employer’s decision to dismiss him before the domestic courts by relying, inter alia, on the provisions of Article 60 § 1(h) of the Romanian Labour Code, which prohibited the dismissal of employees while they held an elected position within a union body.
38. In so far as the applicant criticises the basis in domestic law of the impugned measure, the Court reiterates that it is primarily for the national authorities to interpret and apply domestic law, especially if there is a need to elucidate areas of uncertainty (see Dumitrean, cited above, § 30). In this connection, the Court notes that, in so far as the relevant provisions of the domestic legislation appear repetitive, contradictory or unclear, the domestic courts expressly examined the applicant’s argument that his former employer had breached the prohibition set out by Article 60 § 1(h). Each of the domestic courts carried out its own assessment of the available evidence in the context of the factual circumstances presented by the parties and provided an interpretation of the relevant domestic legislation. Unlike the first-instance court, the last-instance court considered that a joint examination of the relevant domestic legal provisions and of the trade union’s constitution was appropriate and provided arguments in support of its approach. Moreover, following an assessment of the relevant legal provisions, it considered that Article 60 § 1(h) of the Romanian Labour Code had to be read together with the other, relevant provisions of the aforementioned code and of the law on trade unions. Consequently, it overturned the judgment of the lower court, which had been favourable to the applicant, and held that the applicant’s position within the trade union was neither executive nor elected. Moreover, it considered that in any event only workers occupying executive positions within the union enjoyed the lawful protection claimed by the applicant.
39. In this regard, the Court notes that the applicant did not claim before it or the domestic courts that the last-instance court’s interpretation of domestic law was inconsistent with the practice of other courts of appeal that have examined similar matters or that it was the result of legal uncertainty stemming from the divergent interpretation of the relevant legislation by the courts. Moreover, the judgment of 18 March 2009 of the Timişoara District Court did not result in an amendment of the relevant domestic legislation or the union’s constitution, nor could it have. Furthermore, the aforementioned judgement was delivered in proceedings to which the company, F., had not been a party and had not involved an examination of the applicant’s individual circumstances on the merits.
40. The Court further notes that the applicant was dismissed in the context of a wide reorganisation process initiated by his former employer as a result of serious financial difficulties. Moreover, it is uncontested by the parties that that process had been initiated in November 2008, long before the applicant had initiated court proceedings against his employer to claim salary rights or had become an auditor at the union. Furthermore, following an assessment of the available evidence, the domestic courts accepted F.’s argument that the selection of the personnel affected by the downsizing process had been based on objective criteria and had been in compliance with the priority rules set down in the collective agreement.
41. In that context, and in the absence of any proof of arbitrariness in the assessment of evidence carried out by the domestic courts, the Court considers that the applicant has not sufficiently or convincingly substantiated his allegation that the impugned decision was a consequence of his trade-union activities. Moreover, the Court notes that the applicant was given the opportunity to apply for another post within the company that was suitable for his qualifications, but he ignored that opportunity. Furthermore, there is no evidence in the file that he would have not been able to continue exercising his trade union functions if he had been successful in obtaining such a post, and the applicant did not contend such a thing either.
42. In the light of the above and given the particular circumstances of the case, even assuming that the applicant had a right under Article 11 of the Convention not to be dismissed while holding a position in a union body, the Court considers that the applicant has not shown that the decision to dismiss him amounted to an interference that substantially affected the exercise of the aforementioned right (see, mutatis mutandis, Dumitrean, cited above, § 35).
43. The above conclusion dispenses the Court from examining the Government’s remaining arguments.
44. It follows that the application must be dismissed 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.
Done in English and notified in writing on 26 May 2016.
Marialena TsirliAndrás Sajó
RegistrarPresident
Full & Egal Universal Law Academy