AS TO THE ADMISSIBILITY OF
Application No. 12733/87
by Stallarholmens Plåtslageri o Ventilation
Handelsbolag and others
against Sweden
The European Commission of Human Rights sitting in private
on 7 September 1990, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
Sir Basil HALL
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
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 4 January 1987
by Stallarholmens Plåtslageri o Ventilation Handelsbolag and others
against Sweden and registered on 5 February 1987 under file No.
12733/87.
Having regard to the written observations submitted by the
Government on 19 December 1989 and the applicants' observations of
21 March 1990.
Having deliberated;
Decides as follows:
THE FACTS
The facts, as submitted by the parties, may be summarised
as follows.
Particular circumstances of the case
The applicants are Stallarholmens Plåtslageri o Ventilation
Handelsbolag, a company with its seat at Stallarholmen, and the owners
of the company: Lars-Fredrik Forsbäck, born in 1949, and his wife
Barbro Forsbäck, born in 1949, both resident at Stallarholmen. The
applicants are represented by Mr. Bertil Grennberg, a patent attorney
practising in Stockholm.
The applicant company is a member of FFSO (Fria Företagares
SamOrganisation, Association of Independent Businessmen), an organisation
of small employers.
On 30 March 1982 the applicant company (hereinafter referred to
as "the company") signed an accessory agreement (hängavtal) with the
Swedish Sheet Metal Workers' Union (Svenska Bleck- och Plåtslagare-
förbundet). The agreement contains, inter alia, a section according to
which the company was bound, unless otherwise provided in the
accessory agreement, to apply the collective agreement applicable at
any time between the Employers' Association of the Swedish Plateworks
(Plåtslageriernas Riksförbund) and the Swedish Sheet Metal Workers'
Union.
The Swedish Sheet Metal Workers' Union instituted proceedings
against the applicant company before the Labour Court (arbetsdomstolen)
and claimed that the company had violated the agreements. The Union
claimed that the company was obliged to pay holiday salary
(semesterlön) to their employees and that the company had violated
its duty to negotiate. The Union claimed that the company should pay
holiday salary in the amount of 41,252 SEK and general damages for
violation of the collective agreement in the amount of 20,000 SEK.
Before the Labour Court the applicants objected to the
participation of a lay assessor from the Swedish Employers'
Confederation (Svenska Arbetsgivareföreningen, SAF). They submitted
that the claimant (the Union) had wrongly stressed that the company
belonged to FFSO; it was well-known that the relations between FFSO
and SAF were not good. The applicants invoked Article 6 para. 1 of the
Convention. By decision of 22 May 1986 the Labour Court rejected this
challenge on the ground that there were no circumstances which would
appear to upset the impartiality of the lay assessors.
By a judgment of 20 August 1986 the Labour Court found that
the company had violated the collective agreement by refusing to
negotiate and by failing to pay holiday salaries and certain fees
under the collective agreement. The Labour Court ordered that the
company pay to the Union 18,729 SEK as regards holiday salaries and
collective agreement fees and general damages in the amount of 20,000
SEK. The company was also ordered to pay legal costs in the amount of
14,662 SEK.
The Labour Court was composed of one professional judge and
two lay assessors. The latter were Sten Wassberg, who was employed by
SAF, and Bert Lundin, who is the former president of the Swedish
Metal Workers' Union (Svenska Metallindustriarbetareförbundet), which,
like the Swedish Sheet Metal Workers' Union, is an organisation
affiliated to the Swedish Trade Union Confederation
(Landsorganisationen, LO) of which Bert Lundin was a Bureau member.
The lay assessors had been appointed by the Government after
nomination by SAF and LO respectively.
Relevant domestic law
The provisions which regulate proceedings in the Labour Curt
and the composition of the Labour Court are laid down in the 1974
Litigation in Labour Disputes Act ("the 1974 Act"; lagen om rättegången
i arbetstvister).
Labour Court procedures are based on the procedural rules
which apply in the ordinary courts to actions amenable to out of court
settlements. The relevant provisions are to be found in the Code of
Judicial Procedure (rättegångsbalken). In view of the type of cases
involved and the special conditions under which the Labour Court
operates, certain regulations which deviate from the provisions of the
Code of Judicial Procedure are included in the 1974 Act. Thus, the
procedural rules under the Code of Judicial Procedure apply, unless the
1974 Act provides otherwise.
The Labour Court is composed of professional judges and of
members representing the employers and the employees with individual
and equal voting rights for each participating member. When more than
one member of the Court is to examine a case, an equal number of
employer representatives and employee representatives participate.
Organisations considered to best represent conditions in the
Swedish labour market have the right to propose employer and employee
members of the Court. The decisive factor in this context is not
merely the size of the organisation, that is the number of its
members, but also its influence on legal developments on the labour
market through the negotiation of collective agreements or in other
ways.
Employer and employee members of the Court participate in the
examination of cases, not as representatives of the parties appearing
before the Court, but to provide the Labour Court with expert knowledge
of the legal opinions and views which are formed on the labour market
at large.
Members of the Labour Court are appointed by the Government
for a period of three years. They have equal status in every respect.
Also the members representing special interest groups on the labour
market thus swear the judicial oath, in accordance with the Code of
Judicial Procedure Chapter 4 Section 11, in the same way as
professional judges and lay assessors in the ordinary courts. Under
this oath, they are obliged to render judgment in accordance with
existing law, to be independent and impartial and to resist influence
by external pressures of any kind.
According to Chapter 11 Section 5 of the Instrument of
Government (regeringsformen), permanently appointed judges cannot, in
principle, be dismissed. This rule does not apply to judges in the
Labour Court, but they cannot be dismissed during the period for which
they are appointed.
The general regulations in Chapter 4 Section 13 of the Code of
Judicial Procedure regarding disqualification or challenge due to
conflict of interests are applicable also in the Labour Court. These
rules state, for example, that anyone (personally or as a
representative of a company, union etc.) who is a party in the dispute,
or otherwise concerned in the dispute, or who can expect significant
advantage or damage from the outcome of the dispute, must not
participate in the examination of a case. The same applies to anyone
who is opposed to or on unfriendly terms with a party in the dispute,
to anyone who has been connected with the dispute in another capacity
and to anyone who has represented one of the parties. In addition,
there is a general provision regarding conflict of interests, where
special circumstances exist which may impair confidence in the
member's impartiality.
As applied to the Labour Court, the disqualification or
challenge rules mean that a member of the board of an employer or
employee association may not participate in a case where the
association is one of the parties involved or has intervened in the
case. The rules regarding persons who can expect significant
advantage or damage from the outcome of the case or the regulation
regarding other special circumstances which may impair confidence in
the impartiality of the member, have, in view of the Court's
structure, only had a very restrictive application. For example, in
practice, members representing the head organisations or
associations/unions of either the employers or the employees
participate in cases concerning the interpretation of central
agreements which are the results of negotiations where the members
themselves have formed part of the central negotiating delegations on
either side.
COMPLAINTS
1. The applicants allege that the Labour Court was not
"independent and impartial" as required by Article 6 para. 1 of the
Convention.
They also allege a violation of Article 6 on the ground
that the judgment was not pronounced publicly.
2. The applicants allege that they are persecuted because they
are affiliated to FFSO. The Labour Court which settles the disputes is
composed of members hostile to FFSO. SAF tries to stop FFSO. The
applicants allege a violation of Article 11 in conjunction with
Article 17 of the Convention.
3. The applicants submit that the facts also constitute a
violation of Articles 13 and 14 of the Convention.
4. Finally, the applicants allege that the judgment of the Labour
Court involves a violation of the right to peaceful enjoyment of
possessions protected by Article 1 of Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 January 1987 and
registered on 5 February 1987.
On 4 September 1989 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application limited to Article 6 of the Convention.
The Government's observations were received by letter dated
19 December 1989 and the applicants' observations were dated
21 March 1990.
THE LAW
1. In their written observations, the applicants state that they
do not pursue their complaint under Article 6 para. 1 (Art. 6-1) of
the Convention that the judgment was not pronounced publicly. In
these circumstances and having regard to its decision on
admissibility in the Helmers case (No. 11826/85, Dec. 9.5. 89, to be
published in D.R.) the Commission finds no reason to examine this
complaint.
2. The applicants allege violations of Articles 6 (Art. 6)
and 11 (Art. 11) of the Convention on the ground that the Labour Court
was not an independent and impartial tribunal and the choice of lay
assessors from a limited number of employers' and employees' unions
involved discrimination against the applicants. The applicants also
invoke Articles 13 (Art. 13), 14 (Art. 14) and 17 (Art. 17) of the
Convention as well as Article 1 of Protocol No. 1 (P1-1) to the
Convention.
The Government make no objection against the admissibility of
the application under Article 26 (Art. 26) of the Convention. They
submit, however, that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Article 6 para. 1 (Art. 6-1) first sentence of the Convention,
insofar as relevant, reads:
"In the determination of his civil rights and
obligations..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law."
As to the complaint that the Labour Court was not an
"independent and impartial tribunal", the Commission recalls the
following case-law.
When examining whether a specific body can be considered
"independent", regard must be had, inter alia, to the manner of
appointment of its members and their term of office, to the existence
of guarantees against outside pressure and to the question whether
the body presents an appearance of independence. As to the question
of impartiality, two tests must be made: a subjective test under which
it is sought to establish the personal conviction of a given judge in
a given case, and an objective test, aimed at ascertaining whether the
judge offered guarantees sufficient to exclude any legitimate doubt in
this respect (cf. Eur. Court H.R., Langborger judgment of
22 June 1989, Series A no. 155, p. 16, para. 32).
In the Langborger case (loc. cit.), the Commission and the Court
were seized with an issue of a similar nature regarding the Swedish
Housing and Tenancy Court (bostadsdomstolen) where the lay assessors
had been nominated by the dominating unions on the housing and rent
market and where the dispute before the Housing and Tenancy Court
concerned the question whether a negotiation clause in the applicant's
lease should be retained. The European Court of Human Rights stated,
inter alia, as follows (above-mentioned Langborger judgment, p. 16,
paras. 34-35):
"34. Because of their specialised experience, the lay
assessors, who sit on the Housing and Tenancy Court with
professional judges, appear in principle to be extremely
well qualified to participate in the adjudication of
disputes between landlords and tenants and the specific
questions which may arise in such disputes. This does not,
however, exclude the possibility that their independence and
impartiality may be open to doubt in a particular case.
35. In the present case there is no reason to doubt the
personal impartiality of the lay assessors in the absence of
any proof.
As regards their objective impartiality and the question
whether they presented an appearance of independence,
however, the Court notes that they had been nominated by,
and had close links with, two associations which both had an
interest in the continued existence of the negotiation
clause. As the applicant sought the deletion from the lease
of this clause, he could legitimately fear that the lay
assessors had a common interest contrary to his own and
therefore that the balance of interests, inherent in the
Housing and Tenancy Court's composition in other cases, was
liable to be upset when the court came to decide his own
claim.
The fact that the Housing and Tenancy Court also included
two professional judges, whose independence and impartiality
are not in question, makes no difference in this respect."
In the present case, the applicants do not question the
personal impartiality of the lay assessors. In the absence of proof,
the Commission finds no reason to doubt the personal impartiality of
the lay assessors.
As regards the objective impartiality, the Government submit that
the present case is different from the Langborger case. They consider
that there is no reason for the applicants to fear that the lay
assessors had a common interest opposed to the applicants' interest.
The Government point out that here the dispute concerned the question
whether or not the applicant company had violated the rules of the
accessory agreement by not paying holiday salary and certain fees
according to the collective agreement and also whether the company had
violated its duty to negotiate with the trade union. When examining
this issue the Labour Court had to determine a question which
primarily was one of evaluating evidence. This question did not
directly involve the lay assessors. Neither did the two organisations
SAF and LO have any specific interest in the outcome of the case.
There was no interpretation of a principal character to be made of the
collective agreement in question, the outcome of which was of any
importance to the organisations represented by the lay assessors. For
these reasons, the Government submit that the balance of interests,
inherent in the Labour Court's composition, was not upset when the
Court came to decide the claim against the company. The mere fact that
the lay assessors are or have been active in SAF or LO is not
sufficient to consider them to lack impartiality and independence.
As to the applicants' argument that they had no representative
on the Court, whereas the opposing party had, the Government state
that the lay assessors are not to be seen as representatives of the
parties in the case but as independent judges in their own capacity.
A system where each party in every case would have its own
representative on the Court would have an effect, which would be
contrary to the one that is aimed at, i.e. the establishment of an
impartial tribunal with an inherent balance of different interests.
For the same reasons, the fact that there has been a press libel case
between Bengt Zachrisson on the one hand and the publisher of the SAF
newspaper on the other, is irrelevant for the question of the
impartiality of the lay assessors in the case between the Swedish
Sheet Metal Workers' Union and the company before the Labour Court.
The applicants submit in reply that the Court was not
independent and impartial for the following reasons. On the basis of
the reasoning of the European Court in the Langborger case, it is
sufficient for the applicants to show that they had doubts as to the
independence and impartiality of the Court and that these doubts were
reasonable. The existence of doubt is already clearly shown by the
applicants' challenge of the lay assessors before the Labour Court.
The applicants do not contest in general the composition of
the Labour Court in cases where an employer belonging to SAF is
involved in a dispute with an employee belonging to LO. However, in
the present case the applicants could legitimately fear that their
affiliation to FFSO and FAF (Fria Arbetsgivares Förening, Association
of Independent Employers) would be to their detriment. The dispute
before the Labour Court was brought by the Swedish Sheet Metal
Workers' Union which had its interests represented on the Court but
the applicants had no corresponding representatives. In regard to the
animosity between FFSO and FAF, on the one hand, and SAF, on the
other, the applicants recall that in October 1985 the SAF weekly
magazine published an article against FAF. There was thus not a
proper balance of interests on the Court and the applicants could
therefore reasonably fear that the Court was not impartial. In the
present case, SAF and LO had a common interest of getting rid of the
newcomer on the labour market and LO had an interest of obtaining the
damages claimed whereas SAF had an interest of maintaining its
monopoly and of showing to employers that they had no choice but to
join SAF. These common interests make the case similar to the
Langborger case.
The Commission considers that, in accordance with the principles
developed in the Langborger case, the decisive issue is whether the
balance of interests in the composition of the Labour Court was upset
and, if so, whether any such lack of balance could make the Court lack
the requirements of impartiality and independence in the determination
of the particular dispute before the Court. This could be so either
if the lay assessors had a common interest contrary to those of the
applicants or if their interests, although not common, were such that
they were nevertheless opposed to those of the applicants.
In this respect the Commission recalls that in the Langborger
case the applicant had sought the deletion of a clause from his
lease, a clause which had previously been agreed upon between
organisations which had close links with the organisations which had
nominated the lay assessors sitting in that applicant's case. The
dispute in that case had accordingly a clear link with the interests of
the organisations. Consequently, both sides represented by the
lay assessors could be said to have a common interest opposed to the
applicant's claim.
In the present case, the dispute before the Labour Court was
of a different nature. It was whether the company had violated the
collective agreement by failing to pay holiday salaries and certain
fees under the agreement and by failing to negotiate, and on
that ground was liable to pay damages. The nature of this dispute is
such that none of the organisations, LO or SAF, could objectively have
any other interest than to see to it that the agreements which had
been concluded were respected and correctly interpreted. This
interest cannot be contrary to that of the applicants.
The applicants argue that they could fear that the lay
assessors nominated by LO would be favourable to the claims made by
the Workers' Union whereas the applicants could not be said to have
correspondingly favourable lay assessors on the Court because they were
not affiliated to SAF but to FFSO and FAF, which were in conflict with
SAF.
The Commission notes the applicants' argument that they could
fear that the lay assessors nominated by LO would be favourable to the
claims made by the Workers' Union whereas the applicants could not be
said to have a correspondingly favourable lay assessor on the Court
because they were not affiliated to SAF but to FFSO and FAF which were
in conflict with SAF.
The Commission is, however, not persuaded by the argument that
the conflict between SAF, on the one hand, and FFSO and FAF, on the
other hand, would as such imply that the lay assessor nominated by SAF
had a common interest with the lay assessor nominated by LO or an
interest contrary to those of the applicants in the determination of
the particular dispute before the Labour Court.
To accept the applicants' remaining argument would, in the
Commission's opinion, be tantamount to considering that, in cases
where the lay assessors have been nominated by LO and SAF, the Labour
Court would fail to meet the condition "independent and impartial
tribunal" in all disputes where only one of the parties is affiliated
to LO or SAF. Although this issue was not addressed in the Langborger
judgment, the Commission considers that it would be contrary to the
considerations underlying the statement by the Europan Court in para.
34 (see quotation above) of the Langborger judgment to accept such a
proposition.
In sum, the Commission considers that, contrary to the
situation in the Langborger case, there cannot be said to have existed
any common interest between the lay assessors in the present case. The
applicants invoke elements which in their view cast some doubt on the
independence and impartiality of the lay assessors. The Commission is
nevertheless of the opinion that it cannot be held that the applicants
could legitimately fear that the lay assessors had interests contrary
to those of the applicants or that the balance of interests was upset
to such an extent that they did not satisfy the conditions of
independence and impartiality.
The Commission finds no other indication of a violation 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.
4. The applicants' allegation of a violation of Articles 11
(Art. 11), 14 (Art. 14) and 17 (Art. 17) of the Convention is largely
based on the same grounds as those examined above under Article 6
para. 1 (Art. 6-1) of the Convention.
The Commission finds no indication of a violation of these
provisions. It follows that in this respect the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The Commission finds that the complaint based on Article 1 of
Protocol No. 1 (P1-1) of the Convention is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
6. Finally, the applicants allege a violation of Article 13
(Art. 13) of the Convention.
Article 13 (Art. 13) requires a remedy in domestic law only in
respect of a claim of a violation which can be regarded as "arguable"
(cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,
Series A no. 131, p. 23, para. 52). Having found above that the
applicants' claims of violations of the Convention are manifestly
ill-founded, the Commission similarly considers that the these claims
cannot be regarded as "arguable" for the purpose of Article 13
(Art. 13) of the Convention. Consequently, Article 13 (Art. 13) of the
Convention does not entitle the applicants to a remedy in domestic
law.
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.
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