AS TO THE ADMISSIBILITY OF
Application No. 20005/92
by PROSA, Kirsten SJØGREN,
Nils AUGSBURG and Morten LIEDECKE
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 June 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
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 20 September 1991
by PROSA, Kirsten SJØGREN, Nils AUGSBURG and Morten LIEDECKE against
Denmark and registered on 18 May 1992 under file No. 20005/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 2 December 1994 and the observations in reply submitted
by the applicants on 27 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The first applicant (hereinafter called Prosa) is a trade union
domiciled in Copenhagen. Prosa is inter alia divided into a number of
branches which represent their members vis-à-vis the different
employers. In the following the term "Prosa" will cover the entire
trade union. The three other applicants are members of Prosa and reside
at Brønshøj, Copenhagen, and Vejle, respectively. They are computer
programmers by profession. Before the Commission all four applicants
are represented by Mr. Christian Harlang, a lawyer practising in
Copenhagen.
A. The particular circumstances of the case
On 10 November 1988 the employer Sparekassernes Datacenter
(hereinafter called SDC) and Prosa entered into a so-called general
framework agreement (Hovedaftale) which gave Prosa the exclusive right
to negotiate on behalf of its members salaries and other work
conditions with SDC. According to its section 2 SDC was obliged in its
letters of employment to refer to the fact that any employment should
be in accordance with the terms which followed from the agreements
between SDC and Prosa. According to section 10 the general framework
agreement could be terminated with six months notice, although at the
earliest as from 1 October 1991.
On 30 May 1989 SDC and Prosa signed an agreement (overenskomst)
concerning salaries and other work conditions. According to its
section 22 the agreement entered into force on 1 April 1989 and could
be terminated with three months notice, although at the earliest as
from 31 March 1991. This agreement applied to the second and third
applicants who at that moment in time were employed by SDC.
On 1 April 1990 three Danish banks merged thereby forming a new
bank, the Unibank A/S. A new data centre, called Unidata, was also
created for the purpose of handling all computer linked activities of
the Unibank A/S. In this connection 100-150 employees of SDC were, on
17 January 1990, offered employment in Unidata. By letter of
1 March 1990 the employees interested were informed that their existing
terms of employment would continue and that no changes would occur to
the agreements in force at the time.
As a result of this, 102 employees of SDC, including the second
and third applicants, took up employment at Unidata as from
1 April 1990. The fourth applicant was employed by Unidata from a job
in one of the banks which had merged. In their letters of employment
it was pointed out that they were employed on the same conditions as
those applicable to their previous jobs.
Subsequently, on 29 August 1990 Unidata informed the members of
Prosa who previously had been employed in SDC as follows:
(Translation)
"As mentioned in your letter of employment your present
conditions of employment are valid until and including
31 March 1991.
As part of a co-ordination of salary and work conditions in
the Uni Danmark Group your salary and employment conditions
will as from 1 April 1991 follow the agreements made
between ... the Financial Sector's Employers' Association
(Finanssektorens Arbejdsgiverforening, hereinafter called
FA) and the National Association of Bank Employees (Danske
Bankfunktionærers Landsforening, hereinafter called DBL).
..."
In the meantime a dispute had commenced between Prosa and Unidata
as to whether the latter was bound by the general framework agreement
and the collective agreement of 1988 and 1989 between Prosa and SDC in
respect of those members of Prosa who had now transferred to Unidata.
As no agreement could be reached Prosa instituted proceedings in the
Labour Court (Arbejdsretten) in September 1990 against FA and
Unidata/Unibank A/S. The case was registered as case No. 90.328.
On 30 October 1990 the Joint Council of Public Servants and
Salaried Employees (Fællesrådet for Tjenestemænd og Funktionærer,
hereinafter called FTF) requested permission to intervene in the
proceedings on behalf of DBL in support of FA and Unidata. This request
was made in particular due to the fact that FA had entered into a
collective agreement with DBL covering the employment area concerned
and that the outcome of the case would therefore be of importance to
this collective agreement.
By letter of 8 November 1990 Prosa opposed the request and
referred to section 19 of the Labour Court Act (arbejdsretsloven) and
section 252 of the Administration of Justice Act (retsplejeloven). It
considered that FTF had no legal interest (retlig interesse) in the
case.
Following further written observations in which the parties
maintained their above views the Labour Court held a meeting with the
parties after which the Court stated as follows:
(Translation)
"The parties agree to leave it to the presiding judge to
decide whether the request submitted by FTF to intervene in
the proceedings shall be granted. The presiding judge
decided that the above request to intervene in the
proceedings shall be granted."
During the meeting the case was furthermore scheduled for hearing
on 29 and 30 January 1991.
The case was heard by the Labour Court on 30 January 1991. Prosa
was represented by the applicants' present representative and four of
its members, including the second and third applicants.
The Court was composed of nine members, i.e. the President (P)
and two vice-presidents who were all Supreme Court judges, and six lay
judges one of whom had been appointed to the Labour Court's pool of lay
judges by the Ministry of Finance and two by the Danish Employers'
Confederation. Of the remaining three lay judges one had been appointed
to the pool of judges by the Federation of Danish Trade Unions and the
other two (MS and S) by a group of associations consisting of FTF, the
Central Organisation of Academic Staff and the Joint Central
Organisation of Supervisors' and Technical Officers' Societies. The
question of the impartiality of the Labour Court as composed was not
discussed before or during the hearing.
As regards the material question of law Prosa pointed out that
as per 1 April 1990 Unidata had employed 22 Prosa members who
previously had been employed by SDC. As they continued to carry out
identical work in Unidata the parties had agreed that SDC had been
partly incorporated into Unidata. Accordingly, pursuant to the
applicable legislation it followed that Unidata was bound by the
general framework agreement of 10 November 1988 and the agreement of
30 May 1989 between Prosa and SDC. Prosa furthermore maintained that
this also applied to members of Prosa who, prior to 1 April 1990, had
been employed from the banks which had merged or had been employed from
elsewhere.
FA, Unidata and FTF did not dispute that SDC had been partly
incorporated into Unidata and that therefore the employment of the 22
Prosa members as per 1 April 1990 should be considered under the
legislation covering business mergers. However, this could only mean
that they were guaranteed identical employment conditions until the
previous agreement would expire which, in their opinion, was on
31 March 1991. Furthermore, FA, Unidata and FTF maintained that there
was no basis upon which it could be concluded that Prosa members coming
from the merging banks or other employment could be covered by the
agreements in question. Finally, Unidata maintained that it had not in
any way accepted to be bound by the agreements between SDC and Prosa.
Following the parties' oral submissions the case was accepted for
adjudication. A copy of the court transcript concerning the hearing on
30 January 1991, including the names of everybody present, was sent to
the parties soon after the hearing.
In its judgment of 21 March 1991 the Labour Court found against
Prosa while sustaining the claim of FA, Unidata and FTF. The Court
stated that only those members of Prosa who had previously been
employed by SDC and who had now been employed by Unidata in connection
with the bank merger of 1 April 1990 could rely on the previous
collective agreement between Prosa and SDC and only until the expiry
of this agreement on 31 March 1991. The merger, however, did not mean
that Unidata was otherwise bound by the previous agreements.
No appeal lies against a judgment of the Labour Court.
On 28 May 1991 Prosa requested that the case be re-opened, the
reason being that the presiding judge and two of the lay judges were
considered to have been disqualified in a manner which in the request
was described as follows:
(Translation)
"... In connection with the preparations of (another Labour
Court) case No. 91.109 professor K represented Prosa on
27 March (1991). The Court sat with Supreme Court judge
(P). The court transcript reads inter alia as follows:
'The presiding judge noted that in an article in (the
newspaper) Politiken of 6 February 1986 professor K had
expressed the view in connection with the mentioning of an
arbitration case in which he had represented Prosa, that
the presiding judge is a 'willing employers' tool'. As it
may be expected that the professor maintains his view and
that it is shared by the party which the professor
represents, the presiding judge decides as follows pursuant
to section 62 subsection 1 second sentence of the
Administration of Justice Act:
DECISION
As there is in the circumstances reason to fear that the
plaintiffs, represented by professor dr. jur. K, cannot
consider the presiding judge as being entirely impartial it
is decided: the presiding judge vacates his seat on the
bench.'
...
Prosa considered - and considers - that the decision taken
by (P) in (the 1986 arbitration case) is wrong but Prosa
obviously does not consider a wrong decision of that kind
as a reason for being disqualified as far as future cases
are concerned. The fact that Prosa and Prosa's
representative publicly criticise (the 1986 decision)
obviously does not concern a matter which could reasonably
put (P's) impartiality in question.
In (Prosa's) opinion it is unacceptable that the presiding
judge's perception of being partial should refer back to
Prosa's criticism of (the 1986 decision), the more so since
Prosa, neither before the presiding judge's decision of
27 March (1991) nor on other occasions, has challenged the
impartiality of judge P. ...
...
Since the above-mentioned decision of 27 March (1991) is
based on the assumption that the lack of confidence 'is
shared by the party which the professor represents' Prosa
considers that the disqualification which the presiding
judge finds on 27 March also - although not admitted - must
have been present six days earlier when judgment was
pronounced in case No. 90.328 (the present case). We are
unable to explain why the presiding judge considers himself
to be disqualified in the one case but not in the other
although he maintains in his decision that the lack of
confidence 'is shared by' Prosa. But we consider it to be
a serious legal flaw in the judgment pronounced that
Supreme Court judge P in the circumstances did not vacate
his seat from the bench in case No. 90.328 but remained
there, even as the presiding judge.
...
This legal flaw is of particular importance having regard
to the fact that the Labour Court's judgment of
21 March 1991 has been pronounced with the participation of
two lay judges who are both affiliated to FTF-
organisations, i.e. judges MS and S.
Having regard to the fact that an important part of the
case concerns a dispute between two employee organisations,
i.e. Prosa ... and one of FTF's organisations, DBL ...,
Prosa has decided, after careful consideration, to
challenge the validity of the judgment pronounced. ...
...
As a reason for the present request we refer separately to
the assumption that such a request is a precondition for an
examination on the merits pursuant to the rules of the
European Convention on Human Rights ... ."
Following further observations from the parties the Labour Court
rejected the request for the re-opening of the proceedings on
27 November 1991 stating inter alia as follows:
(Translation)
"The lay judge S who participated in the case is not, and
has not been, affiliated to an FTF organisation, but is a
member of the Chief Engineers' Association which is
affiliated to the Joint Central Organisation of
Supervisors' and Technical Officers' Societies. Already for
this reason the objection to the impartiality of this judge
must be rejected.
...
In the newspaper article which is referred to in the
decision of 27 March 1991 in case No. 91.109 professor K
has submitted that he considers the presiding judge to be
partial and to favour in a prejudiced manner employer
interests.
When submitted by a professor of law at the University of
Copenhagen it cannot be excluded that such a statement has
been considered to be of some importance at least by the
party the professor represented in the arbitration case.
Against this background it was natural for the presiding
judge to vacate his seat on the bench in the Labour Court
case No. 91.109 - in which the party was once more
represented by professor K - without this being a sign that
the presiding judge was, or considered himself to be,
disqualified. Accordingly, there was no reason for the
presiding judge to vacate his seat when examining case
No. 90.328 (the present case) in which the party was
represented by a lawyer who only subsequently has submitted
that he shares the professor's view.
In these circumstances, and since the objection to the lay
judge MS was not submitted until approximately four months
after the hearing of the case, the objections of lack of
impartiality now submitted by the complainant cannot
constitute a reason for a re-opening of the case,
cf. section 19 of the Labour Court Act and section 399 of
the Administration of Justice Act."
A second request by Prosa for a re-opening of the case was
rejected by the Labour Court on 3 January 1992.
B. Domestic law and practice
a. The Danish labour market model
The Danish labour market is to a high extent governed by
collective agreements concluded between the labour market parties.
About 80 per cent of all employees are organised and nearly 90 per cent
of all employees are covered by collective agreements.
In the so-called September Compromise of 1899 between the labour
market parties the collective bargaining system was to a certain extent
put into a legal framework through the establishment of the Permanent
Arbitration Court. However, there were still unclear points about the
legal nature of "the collective agreement". Doubt continued to exist
as to how breaches of collective agreements should and could be
sanctioned. Claims for damages could only be brought before the
ordinary courts of law and the same applied to questions concerning the
interpretation of a collective agreement.
In 1908, a committee was set up to submit proposals for a model
to solve these problems.
In a report of 17 August 1908 the committee proposed three
measures which were later introduced:
1. A proposal for "Standard Rules for Handling Labour Disputes". The
aim of these standard rules was that all disputes should be made the
subject of negotiations and that disputes concerning the interpretation
of collective agreements should, if necessary, be settled by an
arbitration court. By virtue of section 22 of the Labour Court Act
these standard rules now form part of all collective agreements, unless
the parties themselves have agreed on other appropriate rules to settle
labour disputes.
2. A proposal for a proper labour court instead of the Permanent
Arbitration Court. This court was to deal with cases concerning alleged
breaches of collective agreements. This proposal was adopted in the
form of the Act on the new Permanent Arbitration Court which in 1973
was replaced by the Labour Court Act No. 317 of 13 June 1973.
3. A proposal for an act on conciliation in labour disputes. This
Act regulates the Danish system with publicly appointed conciliators
who, if necessary, assist the parties in connection with the conclusion
and renewal of collective agreements.
As a corollary of this historical development and as a
consequence of the high rate of organisation, pay and working
conditions in Denmark are mainly regulated by collective agreements
between labour market partners.
Pay and working conditions may further be agreed individually
between the individual employee and the employer.
There is an interaction among the three elements - collective
agreements, individual agreements and legislation - when it comes to
identifying the rights of an employee in relation to the employer.
A collective agreement has effect within the occupational field
covered by the agreement. An employer who has concluded or adhered to
a collective agreement has a duty in relation to the trade union to pay
the employees the wage or salary fixed in the collective agreement
whether the employee is or is not a member of the organisation
concerned. However, a non-organised employee may not invoke rights
under the collective agreement, but only under his or her individual
agreement. On the other hand employees have no independent and direct
rights which can be invoked under the collective agreement. Through the
membership of a trade union, the union is considered empowered to act
on behalf of its members.
The Danish trade union movement is organised as a network of
trade unions, federations and central organisations.
The basic element in this structure is the trade union (branch
of the federation) which is a local association of workers within the
same occupational field. The trade unions may have local branches in
the individual enterprises in the form of the so-called trade union
clubs.
These local associations - which typically have their own economy
- have joined together in national unions. They have wide powers in
connection with the conclusion of collective agreements. Traditionally,
the unions have been organised on the basis of professional skills -
craft unions. However, in recent years this traditional structure has
been disintegrating and several unions now form cartels within the
various trades and they have taken over some of the powers of the
unions, for instance negotiating rights.
The unions are again members of the central organisations which
are the biggest organisations of employees. The biggest central
organisation in Denmark is the Federation of Danish Trade Unions (LO).
b. The jurisdiction and functioning of the Labour Court
As early as in 1910 when the Permanent Arbitration Court was set
up, it was recognised that it was necessary to have a judicial
authority - a court - to deal with breaches of collective agreements.
However, the Labour Court does not have jurisdiction as regards
all matters concerning collective agreements. In Danish labour law a
distinction is made between disputes of right and conflicts of
interest. A dispute of right is a dispute concerning an existing
agreement. It may be a matter of interpretation of the agreement or a
dispute in which one of the parties commits a breach of the agreement.
A conflict of interest arises where there is no agreement between the
parties and where the dispute concerns the conclusion/renewal of such
an agreement.
Under Danish labour law conflicts of interest may lawfully be
supported by industrial action taken by the parties involved. In
connection with such disputes the parties are fighting an economic
struggle using the weapons of for instance strike and lockout.
When it comes to the solution of a dispute concerning an existing
agreement (a dispute of right) the parties are not allowed to resort
to industrial action in order to enforce their opinion. The parties may
only resort to legal remedies in connection with the solution of such
disputes.
In cases concerning the interpretation of an agreement the case
is settled through a special negotiating procedure which may be decided
by arbitration. The negotiating procedure is described in detail in the
Standard Rules for Handling Labour Disputes.
In the case of an alleged breach of a collective agreement the
alleged violation of the contractual rights must be determined and,
where necessary, steps must be taken to bring the violation to an end
and to impose a sanction.
The Labour Court has been given jurisdiction to hear such cases,
cf. section 9, subsection 1, of the Labour Court Act. The Labour Court
is further empowered to adjudicate cases concerning breach or
interpretation of the basic agreements, questions as to whether there
is or is not a valid agreement, and questions concerning the lawfulness
of industrial action of which notice has been given. The Labour Court
may sanction a breach of a collective agreement by imposing a penalty,
cf. section 12, subsection 1, of the Labour Court Act. A penalty
includes both an element of compensation and a penal element. The
penalty is imposed on the party who has committed the breach of the
agreement, i.e. typically the individual employer/employees/group of
employees. The organisations may also be held liable to pay a penalty.
The main condition for liability to pay a penalty is that there
has been a breach of the collective agreement. The agreement can only
be breached by somebody who is bound by it. Thus, liability may only
be imposed on those who are the actual parties to the agreement and
members of organisations which are parties to the agreement.
The Labour Court is established by statute. As regards the
procedure before the Labour Court the rules on civil procedure laid
down in title 2 of the Administration of Justice Act and in chapter 23
and chapters 28-30 of the Act apply mutatis mutandis, cf. section 19
of the Labour Court Act.
A case is brought before the Labour Court by submitting a written
complaint in two copies and the other party shall without further
request draw up a defence. This normally concludes the pleadings, but
the President of the Court may at his or her own initiative, or after
having consulted the parties, provide for further pleadings to be
exchanged.
According to the established practice of the Labour Court a
preliminary court meeting is then held at which the Court is composed
of the member of the presidency on service and the secretary of the
Court functioning as clerk of the Court. The aim of this Court meeting
is to establish the facts of the case without actually hearing
witnesses or experts and the president of the Court tries to settle the
case. There may be several preliminary court meetings.
During the main hearing the Court is presided over by the member
of the presidency who participated in the preliminary court meeting(s).
The Court is formed by a panel of one member of the presidency and
three ordinary judges or deputies representing the employer side and
the employee side, respectively. The presidency may be extended to
three members.
A case before the Labour Court shall be brought by and against
the appropriate employer or employee organisation, cf. section 14 of
the Labour Court Act. If an organisation is a member of a bigger
organisation the case must be brought by and against the biggest
organisation. However, a case may be brought against an individual
employer who is a party to a collective agreement if the individual
employer is not a member of an employer organisation.
The Labour Court consists of twelve ordinary judges and twenty-
eight deputy judges, one president, three vice-presidents and two
deputy presidents. Furthermore, there is a secretary to the Court. The
judges are partly professional, legally qualified, judges and partly
judges appointed by the labour market organisations. The members of the
presidency of the Court shall according to section 7 of the Labour
Court Act satisfy the general conditions for being appointed to the
office of a judge. At present the entire presidency, including the
deputies, are judges of the Supreme Court (Højesteret).
The ordinary judges of the Labour Court are appointed to the post
of judge by the labour market organisations. Under section 2 of the
Labour Court Act the ordinary judges are appointed as follows:
By the employers' organisations:
The Danish Employers' Confederation
SALA (the Associations of Employers in
Agriculture) and the Association of
Employers in the Finance Sector
The Ministry of Finance
The Association of Municipal Authorities
The Association of County Authorities,
and The Association of
the municipalities of
Copenhagen and
Frederiksberg
By the employees'
organisations:
The Federation of Danish
Trade Unions
The Joint Council of Public Servants and
Salaried Employees (FTF)
The Central Organisation of Academic
Staff (AC) and FR - the Joint Central
Organisation of Supervisors' and
Technical Officers' Societies
three ordinary judges
and six deputies
one ordinary judge and
four deputies
two ordinary judges and
four deputies
four ordinary judges and
seven deputies
two ordinary judges and
seven deputies
The judges are elected for a period of three years.
As mentioned above members of the presidency of the Labour Court
must satisfy the same requirements as to their legal qualifications as
those applying to ordinary judges under the provisions laid down in the
Administration of Justice Act. As regards the judges appointed by the
organisations it follows from the nature of the case that the
qualification requirements are different. The qualification
requirements applying to ordinary judges (and deputy judges) follow
from the rules laid down by agreement of 15 March 1948 between the
Danish Employers' Confederation and the Federation of Danish Trade
Unions.
c. Individual right of action
As regards cases settled within the machinery set up for
settlement of labour disputes, i.e. by arbitration or by the Labour
Court, the right to take legal action is vested in the organisation
which is a party to the agreement. It is also the organisation which
decides about the subject-matter of the case. Before the ordinary
courts of law it is the individual employee who has a right to sue.
As regards rights based on legislation the rule is that such
rights may always be enforced by the ordinary courts of law. The courts
will hear the case whether or not the employee is a member of a trade
union or other organisation. In such cases it is always the individual
employee who is entitled to bring the action and who may dispose of the
subject-matter of the case.
If the rights of the employee are based on a collective
agreement, the legal situation may be summarised as follows:
If the employee is not organised and thus not attached to any
organisation, but his or her rights are, nevertheless, based on a
collective agreement, the practice is that the ordinary courts of law
will hear the case. Reference is made to U85/800 V and U 1983/730H.
If the employee is organised, the starting point is that the
matter should be settled by the special machinery for settlement of
labour disputes, i.e. by arbitration or by the Labour Court. In such
cases the general rule is that the organisations have the full disposal
of the subject-matter and the right to take legal action. An exception
from this general rule follows from section 11, subsection 2, of the
Labour Court Act which reads as follows:
(Translation)
"An employee shall, however, be entitled to bring an action
for award of outstanding wages in the ordinary courts of
law unless the organisation, in proceedings before the
Labour Court, has waived this right on behalf of the
employee or when the failure to pay wages is related to a
labour market dispute."
The ordinary courts of law have, inter alia on the basis of this
provision, heard cases involving collective agreements, even if the
organisation has failed to proceed with the case within the framework
of the machinery set up for the settlement of labour disputes, cf.
U85/997Ø, U54/935H and most recently in U94/953H in which express
reference was made to the right of access to court under Article 6 of
the Convention.
Any decision (judgment) of the Labour Court is final. The Labour
Court is the first and only level of jurisdiction, since no appeal lies
against its decisions. Consequently, the judgments of the Labour Court
are directly enforceable in accordance with the rules of the
Administration of Justice Act relating to enforcement of judicial
awards, cf. Section 20 of the Act. This means that a judgment from the
Labour Court serves as the necessary and sufficient basis for court
orders issued by the ordinary courts when enforcing court decisions.
Thus, the legal effect of the judgments of the Labour Court is
identical to that of judgments from other courts.
COMPLAINTS
The applicants have submitted five complaints under Article 6 of
the Convention which they have summarised as follows:
"Article 6, para. 1, is violated as a result of Act no. 317
of 13 June 1973 because the provisions in the Act on the
composition of the Labour Court, by granting a legal
monopoly to certain designated organisations, eo ipso
constitute a denial of the right to a fair trial in public
before an independent and impartial tribunal; and
furthermore
in Article 6 it is stated that the court in question must
be established by law. It is submitted that Section 19 of
the Labour Court Act is not in conformity with the
requirements established by law (especially the
foreseeability requirements) in as much as it leaves it to
the discretion of the Labour Court to decide what parts of
the Administration of Justice Act apply to the proceedings
of the Labour Court;
Article 6, para. 1 guarantees access to court review of an
individual's civil rights and obligations. According to
Danish domestic law no such possibility exists. An
individual worker has no locus standi with the Labour Court
or any other court in the Danish legal system as concerns
questions of the impact of collective agreements or
individual labour contracts. Thus it is submitted that
Article 6, para. 1, is violated in the present case;
Article 6, para. 1, is violated in the instant case because
(the applicants) did not benefit from a public hearing as
a consequence of the non-disclosure of the identity of the
judges until after the hearing;
Article 6, para. 1, is violated in the instant case because
(the applicants) did not benefit from a fair trial before
an independent and impartial tribunal, in as much as the
composition of the Court on 30 January 1991 neither secured
personal impartiality nor created the appearance of
impartiality and independence."
On 22 November 1991 and 10 February 1992 the applicants submitted
four complaints under Articles 11, 13 and 14 of the Convention and
Article 1 of Protocol No. 1 which they have summarised as follows:
"Article 11 is violated as a result of Act no. 317 of
13 June 1973 because the right to represent members of
certain trade unions de jure or de facto is curtailed;
Article 13 of the Convention guarantees to everyone an
effective remedy to rectify and compensate violations of
the rights and freedoms guaranteed in the Convention. As
individual workers have no locus standi before Danish
courts and because no other effective remedy is available,
it is submitted that Article 13 of the Convention is
violated in the present case;
Article 14 in conjunction with Article 11 is violated as a
result of Act no. 317 of 13 June 1973 because the Act de
jure or de facto condones discrimination between trade
unions of different political opinions; and lastly that
Article 1 of the First Protocol to the Convention is
violated as a result of the Labour Court's condoning of a
procedure whereby Prosa workers were deprived of their
right to peaceful enjoyment of their possessions in as much
as they had to accept a significant decline in their salary
or other changes in their terms of employment."
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 September 1991 and
registered on 18 May 1992. On 2 September 1994 the Commission (Second
Chamber) decided that notice of the application should be given to the
respondent Government and invited them to submit written observations
on the admissibility and merits thereof.
Following one extension of the time-limit fixed for this purpose
the Government submitted their observations on 2 December 1994.
Following one extension of the time-limit the applicants
submitted their observations in reply to those of the Government on
27 February 1995.
THE LAW
1. The applicants have submitted a number of complaints which relate
to the Labour Court Act of 1973. They maintain first that Article 6
para. 1 (Art. 6-1) is violated as a result of the fact that the Labour
Court Act, by granting a legal monopoly to certain designated
organisations, constitutes a denial of the right to a fair trial by an
independent and impartial tribunal, the more so as certain provisions
of the Act are, allegedly, such that the Labour Court cannot be
considered as being "established by law".
In this respect the Commission recalls that in accordance with
Article 25 para. 1 (Art. 25-1) of the Convention it can receive an
application from a person, non-governmental organisation or group of
individuals only if such person, non-governmental organisation or group
of individuals can claim to be a victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention.
Moreover, the Commission is competent to examine the compatibility of
domestic legislation with the Convention only with respect to its
application in a concrete case, while it is not competent to examine
in abstracto its compatibility with the Convention (cf. for example No.
11045/84, Dec. 8.3.85, D.R. 42 p. 247).
Accordingly, the Commission will only examine the applicants'
complaints in so far as the legislation in question affects the
applicants themselves.
2. The applicants complain, under Article 6 (Art. 6) of the
Convention, that they did not have access to a court review of their
civil rights and obligations.
Article 6 para. 1 (Art. 6-1) of the Convention reads as far as
relevant as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by
law...".
The Commission recalls that the dispute was brought before the
Labour Court by Prosa, the first applicant, and concerned the question
whether or not Unidata was bound, in the particular circumstances, by
the collective agreements made between Prosa and SDC and, accordingly,
to what extent the individual members' terms of employment were covered
thereby. It is not in dispute between the parties that the issues which
the Labour Court was called upon to determine concerned a "civil right"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention
and it follows that "everyone" should have the right to have any such
claim brought before a court or tribunal (cf. Eur. Court H.R., Golder
judgment of 21 February 1975, Series A no. 18, para. 36, p. 18).
The applicants maintain, and this is disputed by the Government,
that the Labour Court is not a court established by law within the
meaning of Article 6 (Art. 6) of the Convention. In addition the
second, third and fourth applicants maintain that under Danish law the
individual employee has no locus standi with the Labour Court, or any
other court in the Danish legal system, in respect of the questions of
the impact of collective agreements or individual labour contracts.
In respect of the applicants' additional arguments the Government
maintain that it follows from established case-law that individual
employees always have the right to take legal action to defend their
rights. Such cases are dealt with either by the machinery set up for
settlement of labour disputes or by the ordinary courts of law. In the
present case the second, third and fourth applicants' rights were taken
care of by Prosa, to whom they had delegated the powers to bring cases
concerning rights in the employment relationship based on the
collective agreement before the Labour Court.
The Commission recalls that the Danish Labour Court has been set
up in accordance with the provisions of the Labour Court Act of 1973.
Irrespective of this Act's general reference as to the applicability
of the provisions of the Administration of Justice Act, the Commission
has no doubt that the Danish Labour Court is as such a "tribunal
established by law" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. It is clear, however, that the guarantees
of Article 6 (Art. 6) extend to both the organisation and composition
of the tribunal, and the conduct of the proceedings in the concrete
case. Whereas the latter points will be subject to a separate
evaluation by the Commission it finds that Prosa, the first applicant,
had access to a tribunal in respect of its dispute with Unidata.
As regards the second, third and fourth applicants the Commission
recalls that the right to access to a tribunal secured by Article 6
para. 1 (Art. 6-1) of the Convention may be subject to limitations in
the form of regulation by the State. The State enjoys a certain margin
of appreciation but in addition to pursuing a legitimate aim the
limitations applied shall not restrict or reduce the access left to the
individual in such a way that the very essence of the right is impaired
(cf. Eur. Court H.R., Tolstoy Miloslawsky v. the United Kingdom,
judgment of 13 July 1995, Series A no. 323, para. 59).
In the present case the Commission recalls that the second, third
and fourth applicants could not in their individual capacity institute
proceedings against their employer in the Labour Court. This was due
to the fact that their rights, which were in dispute, stemmed from a
collective agreement between their trade union (Prosa) and SDC. It is
not the Commission's task to substitute itself for the competent Danish
authority in determining the most appropriate policy of regulating
access to the Labour Court but in the circumstances of the present case
the system chosen did not mean that the "civil right" which directly
affected the individual applicants could not be brought before a
tribunal for determination. This was in fact done by their trade union
and it has not been submitted that the trade union failed to pursue
those interests which directly affected the applicants. The
"limitation" did not in the Commission's view in the present case
impair the very essence of the right of access to a tribunal, nor can
it be considered disproportionate, in particular having regard to the
fact that the individual employee, according to established Danish
case-law, may institute proceedings in the ordinary courts of law
should the trade union fail to pursue his or her interests in the
Labour Court.
In these circumstances the Commission finds that the application
does not disclose any appearance of a violation of the right to access
to a tribunal within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. As regards the actual proceedings in the Labour Court the
applicants maintain firstly that they did not benefit from a public
hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention
as a consequence of the non-disclosure of the identity of the judges
until after the hearing of the case.
The Commission recalls that the case was heard in the Labour
court on 30 January 1991 in the presence of the parties concerned. No
evidence has been submitted which would indicate that the proceedings
were not public or that the identity of the judges was secret or
confidential. It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. Finally, under Article 6 (Art. 6) of the Convention the
applicants complain that they did not have a fair hearing by an
independent and impartial tribunal inasmuch as the composition of the
Labour Court on 30 January 1991 neither secured personal impartiality
nor created the appearance of impartiality and independence. In support
of these allegations the applicants point out that according to the
Labour Court Act the ordinary judges and substitute judges are
appointed to the pool of judges by certain specified organisations to
which Prosa does not belong. Furthermore, in the concrete case two of
the three judges who were supposed to represent employee interests had
been appointed to the pool of judges by FTF which had intervened in the
case in support of the defendant employer.
The Government maintain firstly that the applicants did not
exhaust domestic remedies in respect of this part of the application.
In the alternative they maintain that the complaint is manifestly
ill-founded.
The applicants admit that they did not bring the issue to the
attention of the Labour Court during the proceedings in question. They
submit, however, that they trusted that the Labour Court itself would
secure that the issues of independence and impartiality would be
fulfilled and that, in any event, it would in all probability have been
futile to enter such a plea.
The Commission recalls that under the terms of Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law. This condition is not met by the
mere fact that an applicant has submitted his case to the various
competent courts. It is also necessary for the complaint brought before
the Commission to have been raised by the applicant, at least in
substance, during the proceedings in question. On this point the
Commission refers to its established case-law (cf. for example, No.
6861/75, Dec. 14.7.75, D.R. 3 p. 147,; Nos. 5573/72 and 5670/72, Dec.
16.7.76, D.R. 7 p. 8; No. 16810/90, Dec. 9.9.92, D.R. 73 p. 136 and No.
15669/89, Dec. 28.6.93, D.R. 75 p. 39).
It is true that only effective, adequate and accessible remedies
have to be exhausted. However, it appears from the domestic case-law
submitted that the problem of judges' independence or impartiality is
not dismissed as such but examined by the Labour Court when invoked by
a party and it cannot therefore be regarded as ineffective to raise
this issue before the Court during the proceedings in question. The
Commission also recalls that it has constantly held that the mere
existence of doubts as to the prospects of success does not absolve an
applicant from exhausting a given remedy (cf. Nos. 5577-5583/72, Dec.
15.12.75, D.R. 4 pp. 4, 72 with further references). The Commission
finally notes that the applicants subsequently tried, unsuccessfully,
to have the case re-opened referring to the complaint now brought
before the Commission. However, it finds that such an extraordinary
procedure did not absolve the applicants from raising the matter while
the case was pending.
The Commission accordingly finds that the remedy, i.e. bringing
the issue of independence and impartiality to the attention of the
Labour Court during the proceedings in question, cannot be said to have
been clearly without any prospects of success. Consequently, the
applicants cannot be considered to have exhausted the effective
remedies available to them under Danish law.
It follows that this part of the application must therefore be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
5. The applicants also complain of violations of Articles 11, 13 and
14 (Art. 11, 13, 14) of the Convention and Article 1 of Protocol No.
1 (P1-1) to the Convention.
In respect of these complaints the Commission recalls that
according to Rule 44 para. 4 of its Rules of Procedure the date of
introduction of an application shall in general be considered to be the
date of the first communication from the applicant. The Commission may
nevertheless for good cause decide that a different date be considered
to be the date of introduction.
In the applicants' first communication with the Commission of
20 September 1991 they merely stated that the proceedings before the
Labour Court, in their opinion, violated Article 6 para. 1
(Art. 6-1) of the Convention. This communication was clearly not
sufficient to constitute a full application in accordance with Rule 44
paras. 1 and 2 of the Commission's Rules of Procedure, in particular
as it contained no statement of the facts or arguments. Nevertheless,
the Commission considers that the telefax letter submitted on 20
September 1991 was sufficient to constitute the introduction of an
application since it set out, albeit summarily, the object of the
application (cf. No. 10293/83, Dec. 12.12.85, D.R. 45 p. 41).
Since the scope of the application in respect of the date of
introduction is circumscribed by the terms of the applicants' first
communication the Commission must next examine whether the further
details of the application should be considered as legal submissions
in respect of the applicants' main complaints to which the six months
rule set out in Article 26 (Art. 26) of the Convention would not be
opposable (cf. no. 12015/86, Dec. 6.7.88., D.R. 57 p. 108) or whether
they should be considered as separate complaints introduced at a later
stage (cf. No. 10857/84, Dec. 15.7.86. D.R. 48 p. 106).
In this respect the Commission notes the contents of the
applicants' second communication with the Commission of
22 November 1991 which contained further arguments as to the basis for
their complaints under Article 6 (Art. 6) of the Convention and, for
the first time, an allegation of a breach of Article 11 (Art. 11) of
the Convention. The Commission also notes the contents of their third
communication of 10 February 1992 which contained, for the first time,
an allegation of a breach of Articles 13 and 14 (Art. 13, 14) of the
Convention and Article 1 of Protocol No. 1 (P1-1) as described above.
The Commission considers that the complaints submitted under
Articles 11, 13 and 14 (Art. 11, 13, 14) of the Convention and Article
1 of Protocol No. 1 (P1-1) cannot be interpreted as merely some
particular aspects of the complaints based on Article 6 para. 1
(Art. 6-1) of the Convention. In these circumstances, for the purposes
of the six months rule, these complaints must be considered separately.
In the present case the judgment of the Labour Court was given
on 21 March 1991. Subsequently, the applicants submitted a petition to
the Court for the re-opening of the proceedings and this petition was
rejected by the Court on 27 November 1991 with reference to section 19
of the Labour Court Act and section 399 of the Administration of
Justice Act which contains provisions concerning the possibility, in
exceptional circumstances, to re-open a case already decided upon.
As indicated above the Commission considers that the applicants'
complaints under Article 11 (Art. 11) of the Convention were introduced
on 22 November 1991 and the complaints under Articles 13 and 14
(Art. 13, 14) of the Convention and Article 1 of Protocol No. 1
(P1-1) on 10 February 1992.
It follows that the Commission can only deal with these
complaints if the petition for the re-opening of the case can be
considered a remedy within the meaning of Article 26 (Art. 6) of the
Convention, in which case the six months period provided for in that
Article should be calculated from the date of the decision of the
Labour Court to reject it.
The Commission recalls that it has the competence in every case
to appreciate in the light of the particular facts whether a remedy
appears to offer the possibility of effective and sufficient redress
within the meaning of the generally recognised rules of international
law in regard to the exhaustion of domestic remedies and, if not, to
exclude it from consideration in applying the six months time-limit.
It refers, however, to its extensive jurisprudence according to
which an application for re-trial or similar extraordinary remedies
cannot, as a general rule, be taken into account in the application of
Article 26 (Art. 26) of the Convention (cf. No. 10326/83, Dec. 6.10.83,
D.R. 35 p. 218 with further references).
In the present case the Commission finds it justified to base its
decision on an interpretation of Article 26 (Art. 26) consistent with
its extensive jurisprudence regarding such applications for re-trial
and from which it follows that such remedies should not normally be
taken into consideration as a remedy under Article 26 (Art. 26) of the
Convention. The Commission has found no special circumstances in the
present case which would permit a different conclusion as to the
relevance of a request for the re-opening of the Labour Court
proceedings.
Consequently this remedy did not constitute a domestic remedy
under the generally recognised rules of international law and the
rejection of the applicants' request cannot be taken into consideration
in determining the final decision for the purpose of applying the six
months time-limit laid down in Article 26 (Art. 26). Accordingly, the
complaints submitted under Articles 11, 13 and 14 (Art. 11, 13, 14) of
the Convention and Article 1 of Protocol No. 1 (P1-1) submitted to the
Commission on 22 November 1991 and 10 February 1992 have been
introduced out of time. Furthermore, an examination of the case does
not disclose the existence of any other special circumstances which
might have interrupted or suspended the running of the six months
period.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy