Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GUSTAFSSON v. SWEDEN - 15573/89 [1996] ECHR 20 (25 April 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/20.html
Cite as: [1996] ECHR 20, (1996) 22 EHRR 409, 22 EHRR 409
[New search] [Contents list] [Help]
In the case of Gustafsson v. Sweden (1),
The European Court of Human Rights, sitting, in pursuance of
Rule 53 of Rules of Court B (2), as a Grand Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr A. Spielmann,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr B. Repik,
Mr P. Jambrek,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 November 1995 and
28 March 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 18/1995/524/610. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of the corresponding originating
applications to the Commission.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
_______________
PROCEDURE
1. The case was referred to the Court on 1 March 1995 by the
European Commission of Human Rights ("the Commission") and on
15 May 1995 by the Government of the Kingdom of Sweden ("the
Government"), within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention"). It originated in an application (no. 15573/89)
against Sweden lodged with the Commission under Article 25 (art. 25)
by a Swedish national, Mr Torgny Gustafsson, on 1 July 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Sweden recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request and of the Government's application was to obtain
a decision as to whether the facts of the case disclosed breaches by
the respondent State of its obligations under Articles 6, 11 and 13 of
the Convention (art. 6, art. 11, art. 13) and Article 1 of
Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 31).
3. The Chamber to be constituted included ex officio Mrs E. Palm,
the elected judge of Swedish nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr B. Walsh, Mr S.K. Martens,
Mr R. Pekkanen, Mr A.N. Loizou, Mr F. Bigi and Mr P. Jambrek
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 12 September 1995 and the applicant's memorial
on 13 September 1995. In a letter of 19 October 1995 the Secretary to
the Commission informed the Registrar that the Delegate did not wish
to reply in writing.
5. On 28 September 1995 the Chamber, having regard to a request
by the Government of 30 August, decided to relinquish jurisdiction
forthwith in favour of a Grand Chamber (Rule 53). The President and
the Vice-President, Mr R. Bernhardt, as well as the other members of
the Chamber being ex officio members of the Grand Chamber, the names
of the other nine judges were drawn by lot by the President in the
presence of the Registrar on 28 September 1995 (Rule 53 para. 2 (a) and
(b)), namely Mr L.-E. Pettiti, Mr A. Spielmann, Mr I. Foighel,
Mr J.M. Morenilla, Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici,
Mr J. Makarczyk, Mr B. Repik and Mr E. Levits.
6. On 24 October 1995 the Grand Chamber dismissed a request to
hear witnesses which the Registrar had received from the Government on
17 October (Rule 43 para. 1, taken together with Rule 53 para. 6). On
various dates between 19 and 25 October, the Registrar received letters
from the applicant providing comments on the above request.
7. On 27 September, 24 October 1995 and 10 January 1996 the
applicant submitted further particulars on his Article 50 (art. 50)
claims. On 10 November 1995 the Commission produced a number of
documents from the file in the proceedings before it, as requested by
the Registrar on the President's instructions.
8. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
22 November 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr C.H. Ehrenkrona, Assistant Under-Secretary for
Legal Affairs, Ministry for Foreign Affairs, Agent,
Mr D. Ekman, Permanent Under-Secretary,
Ministry of Labour,
Mr P. Virdesten, Under-Secretary for Legal Affairs,
Ministry of Labour,
Mrs I. Åkerlund, Legal Adviser, Ministry of Labour,
Mrs H. Jäderblom, Legal Adviser, Ministry of Justice, Advisers;
(b) for the Commission
Mrs G.H. Thune, Delegate;
(c) for the applicant
Mr G. Ravnsborg, Lecturer in Law at the University
of Lund, Counsel.
The Court heard addresses by Mrs Thune, Mr Ravnsborg and
Mr Ehrenkrona, and also replies to questions put by the Court and by
the President.
AS TO THE FACTS
I. Particular circumstances of the case
9. From the summer of 1987 until the end of the summer of 1990 the
applicant owned the summer restaurant Ihrebaden at Ihreviken,
Tingstäde, on the island of Gotland. The applicant further owned - and
continues to own - the youth hostel Lummelunda at Nyhamn, Visby, also
on Gotland. The restaurant's employees numbered less than ten. They
were engaged on a seasonal basis, but had the option of being
re-employed the following year. The applicant's ownership of the
restaurant and youth hostel was direct and entailed his personal
financial liability (enskild firma).
10. As the applicant was not a member of either of the two
associations of restaurant employers, namely the Swedish Hotel and
Restaurant Entrepreneurs' Union (Hotell- och Restaurangar -
betsgivareföreningen - "HRAF", which is affiliated to the Swedish
Employers' Confederation (Svenska Arbetsgivareföreningen - "SAF")) and
the Employers' Association of the Swedish Union of Restaurant Owners
(Svenska Restauratörsförbundets Arbetsgivareförening - "SRA"), he was
not bound by any collective labour agreement (kollektivavtal) between
the two associations and the Hotel and Restaurant Workers' Union
(Hotell- och Restauranganställdas Förbund - "HRF"). Nor was he obliged
to subscribe to the various labour-market insurance schemes
(Arbetsmarknadsförsäkring) developed through agreements between SAF and
the Swedish Trade Union Confederation (Landsorganisationen).
It was, however, open to the applicant to accede to a
collective agreement by accepting a substitute agreement (hängavtal).
He could also subscribe to insurance schemes with Labour-Market
Insurances or any of the other ten or so insurance companies in the
field.
11. In late June or early July 1987 he refused to sign a separate
substitute agreement with HRF. He referred to his objections of
principle regarding the system of collective bargaining. He also
emphasised that his employees were paid more than they would have been
under a collective agreement and that they themselves objected to his
signing a substitute agreement on their behalf.
The substitute agreement proposed to the applicant included
these terms:
"Parties: [The applicant] and [HRF]
Term of validity: From 1 July 1987 up to and including
31 December 1988, thereafter for one year at a time, unless
notice is given two months prior to the expiry of the
[agreement].
...
As from the [above] date, the most recent agreement between
[the employers' association] and [HRF] shall be applied between
[the applicant and HRF]. Should [the employers' association]
and [HRF] subsequently reach a new agreement or agree to amend
or supplement the [present] agreement, [the new agreement,
amendments or supplements] shall automatically apply as from
the day on which [it or they] [has or have] been [agreed upon].
...
1. [The employer shall] [on his employees' behalf] subscribe
to and maintain [five different] insurance-policy schemes with
Labour-Market Insurances, ... as well as other possible
insurance-policy schemes which [the employers' association and
HRF] might later agree upon.
2. [The employer shall] issue employment certificates on a
special form ... A copy shall be sent to [HRF].
3. [The employer shall] only employ [workers who are members]
of or [have] requested membership of [HRF]. In the event of
re-employment the provisions of section 25 of the Employment
Protection Act (lag (1982:80) om anställnings-skydd) shall
apply.
4. [The employer shall] deduct on a monthly basis a part of
the salary of employed members of [HRF] corresponding to their
membership fees, and pay [the deducted part] to [HRF].
..."
12. On 16 July 1987, during further negotiations with the
applicant, HRF proposed another substitute agreement, which he also
rejected:
"Subject: The signing of a collective agreement regarding [the
restaurant] Ihrebaden ... and the Lummelunda youth hostel.
1. Having regard to the forthcoming end of the [season of
1987] the parties agree on the following procedure replacing
the signing of a collective agreement.
The enterprise agrees to comply, during this season ..., with
the collective labour agreement (`the green national
agreement') between [HRAF] and [HRF], this including the
obligation to subscribe to [certain] insurance schemes
(avtalsförsäkringar) with Labour-Market Insurances.
2. The enterprise also agrees to [comply with] [the]
collective labour agreement ... during the next season ...,
either by way of membership of the employers' union or by
signing a ... substitute agreement ..."
13. Had the applicant accepted a substitute agreement, it would
have applied not only to those of his employees who were unionised but
also to those who were not.
In the summer of 1986, one member of HRF was employed by the
applicant. In 1987 he employed another member of that union and also
two persons who were respectively members of the Commercial Employees'
Union (Handelsanställdas Förbund) and the Union of Municipal Workers
(Kommunalarbetareförbundet). In 1989, one member of the latter union
was employed by the applicant.
14. Following the applicant's refusal to sign a substitute
agreement, HRF, in July 1987, placed his restaurant under a "blockade"
and declared a boycott against it. Sympathy industrial action was
taken the same month by the Commercial Employees' Union and the Swedish
Food Workers' Union (Svenska Livsmedelsarbetareförbundet).
In the summer of 1988 sympathy action was also taken by the
Swedish Transport Workers' Union (Svenska transportarbetareförbundet)
and the Union of Municipal Employees (Kommunaltjenestemannaförbundet).
As a result deliveries to the restaurant were stopped.
15. One of the persons employed by the applicant at Ihrebaden who
was member of HRF had publicly expressed the opinion that the
industrial action was unnecessary, as the salary and working conditions
in the restaurant were not open to criticism.
According to the Government, the union action had its
background in a request for assistance in 1986 by an HRF member
employed by the applicant. In the view of the union, the applicant
paid his employees approximately 900 Swedish kronor (SEK) a month less
than what they would have received under a collective agreement. He
did not pay his staff holiday compensation as provided for in the
1977 Annual Leave Act (semesterlagen 1977:480), nor salary during
lay-offs due to poor weather conditions as required by the 1982
Employment Protection Act and he did not sign a labour-market insurance
until 1988.
16. In August 1988 the applicant, invoking the Convention,
requested the Government to prohibit HRF from continuing the blockade
and the other trade unions from continuing their sympathy action and
to order the unions to pay compensation for damages. In the
alternative, he requested that compensation be paid by the State.
17. By a decision of 12 January 1989 the Government (Ministry of
Justice) dismissed the applicant's request. The Government stated:
"The requests for a prohibition of the blockade and the
sympathy action as well as compensation for damage from the
trade unions concern a legal dispute between private subjects.
According to Chapter 11, Article 3, of the Instrument of
Government [Regeringsformen which forms part of the
Constitution], such disputes may not be determined by any
public authority other than a court of law, except by virtue
of law. There is no provision in the law which authorises the
Government to examine such disputes. The Government will not,
therefore, examine these requests on the merits.
The claim for damages is dismissed."
18. The applicant applied to the Supreme Administrative Court
(Regeringsrätten) for review under the 1988 Act on Judicial Review of
Certain Administrative Decisions (lag (1988:205) om rättsprövning av
vissa förvaltningsbeslut - "the 1988 Act"). On 29 June 1989 the
Supreme Administrative Court dismissed the application on the ground
that the Government's decision did not concern an administrative matter
involving the exercise of public power, which was a condition for
review under section 1 of the Act.
19. On 15 September 1989 the Swedish Touring Club (Svenska
turistföreningen - "STF"), a non-profit-making association promoting
tourism in Sweden, terminated the membership of the applicant's youth
hostel, referring to a lack of cooperation and the applicant's negative
attitude towards STF. As a result, the hostel was no longer mentioned
in STF's catalogue of youth hostels in Sweden. In 1989 about half of
the youth hostels in Sweden were enrolled in STF.
20. The applicant brought proceedings in the District Court
(tingsrätten) of Stockholm. He contested what he considered to be his
personal exclusion from STF, alleging that it had been caused by HRF
threats that it would take industrial action against other youth
hostels enrolled in STF if his hostel was not excluded. He also
challenged STF's termination of the membership of his youth hostel.
STF accepted, inter alia, that although the termination of the
membership contract concerning the applicant's youth hostel had not
been prompted by the conflict between the applicant and the trade
unions, this conflict might have affected the timing of the decision.
STF also referred to an opinion of the Competition Ombudsman
(ombudsmannen för näringsfrihet) of 14 November 1989 to the effect that
the termination of the contract in question would have only a very
limited impact on his business.
21. By a judgment of 8 May 1991 the District Court rejected the
applicant's action on both points. It found, inter alia, that the
applicant had not shown that he had been personally excluded from STF
by virtue of the termination of STF's contract concerning his youth
hostel. It also found that he had not shown that the contract had been
financially significant to his business. Reference was made to the
Competition Ombudsman's finding.
22. The applicant appealed to the Svea Court of Appeal (Svea
hovrätt) which, on 6 March 1992, upheld the District Court's judgment.
The Court of Appeal found, inter alia, that STF's termination of the
contract concerning the youth hostel had entailed the expiry of the
applicant's personal membership of STF. This, however, had not been
tantamount to his exclusion, given that he could have continued or
renewed his membership. Moreover, although the contract had been of
appreciable significance to the applicant's business, STF's termination
of the contract could not be considered unreasonable.
23. At the beginning of 1991 the applicant sold his restaurant due
to his difficulties in running his business which had allegedly been
caused by the industrial action. The restaurant was bought by a person
who signed a collective agreement with HRF. He continued, together
with his family, to run the youth hostel in Lummelunda.
Following the above, the union action was terminated.
24. On 9 November 1991 the applicant requested the Government to
support his application to the Commission. On 12 December 1991 the
Government decided not to take any action in respect of the request.
II. Relevant domestic law
A. Freedom of association
25. Chapter 2, Article 1, of the Instrument of Government provides:
"All citizens shall be guaranteed the following in their
relations with the public authorities:
1. freedom of expression: the freedom to communicate
information and to express ideas, opinions and emotions whether
orally, in writing, in pictorial representations, or in any
other way;
...
5. freedom of association: the freedom to unite with others
for public or private purposes; ..."
26. According to Chapter 2, Article 2:
"All citizens shall be protected in their relations with the
public authorities against all coercion designed to compel them
to divulge an opinion in any political, religious, cultural or
other similar connection. They shall furthermore be protected
in their relations with the public authorities against all
coercion designed to compel them to participate in any meeting
for the formation of opinion or in any demonstration or other
expression of opinion or to belong to any political
association, religious congregation or other association for
opinions of the nature referred to in the first sentence."
27. Chapter 2, Article 12 paras. 1 and 2, reads:
"The freedoms and rights referred to in Article 1 paras. 1 to
5 ... may be restricted by law to the extent provided for in
Articles 13-16 ...
The restrictions referred to in the preceding subsection may
only be imposed to achieve a purpose which is acceptable in a
democratic society. The restriction may never exceed what is
necessary having regard to the purpose which occasioned it, nor
may it be carried so far as to constitute a threat to the free
formation of opinion as one of the foundations of democracy.
No restriction may be imposed solely on grounds of political,
religious, cultural or other such opinions."
28. Chapter 2, Article 14 para. 2 provides:
"Freedom of association may only be restricted in respect of
organisations whose activities are of a military nature or the
like or which involve the persecution of a population group of
a particular race, skin colour or ethnic origin."
29. Pursuant to Chapter 2, Article 17:
"Any trade union or employer or association of employers has
a right to take industrial action unless otherwise provided by
law or by agreement."
B. Right of association
30. Section 7 of the 1976 Act on Co-Determination at Work reads:
"Right of association means the right of employers and
employees to belong to an organisation of employers or
employees, to benefit from their membership as well as to work
for an organisation or for the founding of one."
31. Section 8 provides:
"The right of association shall not be violated. A violation
... will occur, if anyone from the employer's side or the
employee's side takes any action to the detriment of anybody
on the other side by reason of that person having exercised his
right of association, or if anybody on either side takes any
action against anybody on the other side with a view to
inducing that person not to exercise his right of association.
A violation will occur even if the action so taken is designed
to fulfil an obligation towards another party.
An employers' or employees' organisation shall not have to
tolerate a violation of its right of association encroaching
upon its activities. Where there is both a local and a central
organisation, these provisions shall apply to the central
organisation.
If the right of association is violated by termination of an
agreement or another legal measure or by a provision in a
collective agreement or other contract, that measure or
provision shall be void."
32. According to section 10:
"An employees' organisation shall have the right to negotiate
with an employer regarding any matter relating to the
relationship between the employer and any member of the
organisation who is or has been employed by that employer. An
employer shall have a corresponding right to negotiate with an
employees' organisation.
A right of negotiation ... shall also be enjoyed by the
employees' organisation in relation to any organisation to
which an employer belongs, and by the employers' organisation
in relation to the employees' organisation."
C. Judicial remedies
33. Chapter 11, Article 3, of the Instrument of Government
provides:
"Legal disputes between private subjects shall only be settled
by a court of law, unless otherwise provided by law ..."
34. In principle, it is possible for an employer against whom
industrial action has been instituted to request a court injunction
requiring that the action cease, and to claim damages. Such orders may
be made by the relevant court if the industrial action is unlawful or
in breach of an existing collective agreement.
If the industrial action amounts to a criminal offence, a claim
for compensation may be made under Chapter 2, section 4, of the 1972
Compensation Act (skadeståndslag 1972:207).
35. Pursuant to section 1 of the 1988 Act, a person who has been
a party to administrative proceedings before the Government or another
public authority may, in the absence of any other remedy, apply to the
Supreme Administrative Court, as the first and only judicial instance,
for review of any decisions in the case which involve the exercise of
public authority vis-à-vis a private individual. The kind of
administrative decision covered by the Act is further defined in
Chapter 8, Articles 2 and 3, of the Instrument of Government, to which
section 1 of the 1988 Act refers. According to these provisions the
Act encompasses measures concerning, inter alia, personal and economic
matters arising in relations between private persons and between such
persons and the State. Section 2 of the Act specifies several types
of decision which fall outside its scope, none of which are relevant
in the instant case.
In proceedings brought under the 1988 Act, the Supreme
Administrative Court examines whether the contested decision "conflicts
with any legal rule" (section 1 of the 1988 Act). If the court finds
that the impugned decision is unlawful, it must quash it and, where
necessary, refer the case back to the relevant administrative authority
(section 5 of the 1988 Act).
PROCEEDINGS BEFORE THE COMMISSION
36. In his application to the Commission of 1 July 1989
(no. 15573/89) Mr Gustafsson complained that the lack of State
protection against the industrial action taken against his restaurant
gave rise to a violation of his right to freedom of association as
guaranteed by Article 11 (art. 11) of the Convention and also of his
right to peaceful enjoyment of possessions under Article 1 of
Protocol No. 1 (P1-1), in conjunction with Article 17 (art. 17) of the
Convention. He further alleged breaches of his rights under
Article 6 para. 1 (art. 6-1) (right to a fair hearing) and Article 13
(art. 13) (right to an effective remedy), complaining that the court
remedies to which he could have recourse in order to challenge the
industrial action would have been ineffective since such action was
lawful under Swedish law.
37. On 8 April 1994 the Commission declared the application
admissible. In its report of 10 January 1995 (Article 31) (art. 31),
the Commission expressed the opinion that
(a) there had been a violation of Article 11 (art. 11) (by thirteen
votes to four);
(b) it was not necessary to examine the complaint under Article 1
of Protocol No. 1 (P1-1) in conjunction with Article 17 (art. 17) of
the Convention (by eleven votes to six);
(c) there had been no violation of Article 6 para. 1 (art. 6-1) of
the Convention (by sixteen votes to one);
(d) there had been a violation of Article 13 (art. 13) of the
Convention (by fourteen votes to three).
The full text of the Commission's opinion and of the four
separate opinions contained in the report is reproduced as an annex to
this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-II), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
38. At the hearing on 22 November 1995 the Government, as they had
done in their memorial, invited the Court to hold that there had been
no violation of the Convention in the present case.
39. On the same occasion the applicant reiterated his request to
the Court stated in his memorial to find that there had been violations
of Articles 6, 11 and 13 (art. 6, art. 11, art. 13) of the Convention,
and of Article 1 of Protocol No. 1 (P1-1) in conjunction with
Article 17 (art. 17) of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 (art. 11) OF THE CONVENTION
40. The applicant complained that the union action had infringed
his right to freedom of association and that the failure of the
respondent State to protect him against this action constituted a
violation of Article 11 (art. 11) of the Convention, which reads:
"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
(art. 11) 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."
41. The Government disputed this contention, whereas the Commission
shared the applicant's view that there had been a violation.
A. Applicability of Article 11 (art. 11)
42. The Government contested the applicability of Article 11
(art. 11) to the matters complained of by the applicant. Unlike the
applicants in previous cases where the Court had recognised a negative
right to freedom of association (see the Young, James and Webster v.
the United Kingdom judgment of 13 August 1981, Series A no. 44,
pp. 21-22, paras. 55-58; and the Sigurdur A. Sigurjónsson v. Iceland
judgment of 30 June 1993, Series A no. 264, pp. 15-16, para. 35), the
applicant in the present case had not been compelled to join an
association. The union action had primarily been aimed at making the
applicant apply to his employees a certain agreement negotiated by the
relevant labour organisations. This could have been achieved not only
by the applicant joining one of the two employers' associations in the
trade - the Swedish Hotel and Restaurant Entrepreneurs' Union ("HRAF")
and the Employers' Association of the Swedish Union of Restaurant
Owners ("SRA") - but also by his signing with the Hotel and Restaurant
Workers' Union ("HRF") a substitute agreement to the existing
collective agreements applied in the restaurant trade (see paragraph 10
above). He could have avoided the union action by availing himself of
the possibility of entering into negotiations with the union with a
view to reaching a solution based on a substitute agreement drafted in
a way that was adapted to the special character of the business run by
the applicant (see paragraphs 11 and 12 above). The conclusion of such
an agreement might have affected the applicant's freedom as an employer
to conclude contracts with his employees, but this freedom was not as
such guaranteed by the Convention.
The Government in addition pointed out that in practice the
union action had essentially had the effect of stopping deliveries of
goods to his restaurant (see paragraph 14 above) and had not involved
occupation or picketing of the applicant's business premises. Nor had
he substantiated his claim that he had had to sell the restaurant or
had suffered any other form of pecuniary damage as a result of the
industrial action.
43. The applicant and the Commission maintained that the unions'
boycott and blockade of his business had affected his right to negative
freedom of association. Admittedly, had the applicant concluded a
substitute agreement, the primary purpose of the action, namely to
achieve the largest possible acceptance and the widest possible
application of the collective agreement to which HRF was a party, could
have been attained without the applicant becoming a member of HRAF or
SRA. However, the applicant objected not only to formal membership but
also to participation in the collective-bargaining system, since in
both cases he would have become bound by a collective agreement with
HRF. One of the most important effects of membership of an employers'
association in Sweden was the members' participation, through the
association, in collective bargaining and their undertaking to be bound
by any collective agreement concluded by the association. Therefore,
even though the applicant had had the possibility of accepting these
obligations without formally joining HRAF or any other association, it
would be artificial and formalistic to deny that his negative freedom
of association had been affected.
44. The Court considers that although the extent of the
inconvenience or damage caused by the union action to the applicant's
business may be open to question, the measures must have entailed
considerable pressure on the applicant to meet the union's demand that
he be bound by a collective agreement. He had two alternative means
of doing so: either by joining an employers' association, which would
have made him automatically bound by a collective agreement, or by
signing a substitute agreement (see paragraphs 10 and 11 above). The
Court accepts that, to a degree, the enjoyment of his freedom of
association was thereby affected. Article 11 (art. 11) is thus
applicable in the present case. The Court will therefore examine
whether there was an infringement of his right to freedom of
association for which the respondent State was responsible.
B. Compliance with Article 11 (art. 11)
1. General principles
45. The matters complained of by the applicant, although they were
made possible by national law, did not involve a direct intervention
by the State. The responsibility of Sweden would nevertheless be
engaged if those matters resulted from a failure on its part to secure
to him under domestic law the rights set forth in Article 11 (art. 11)
of the Convention (see, amongst others, the Sibson v. the United
Kingdom judgment of 20 April 1993, Series A no. 258-A, p. 13,
para. 27). Although the essential object of Article 11 (art. 11) is
to protect the individual against arbitrary interferences by the public
authorities with his or her exercise of the rights protected, there may
in addition be positive obligations to secure the effective enjoyment
of these rights.
In the most recent judgment delivered in this connection,
Article 11 (art. 11) of the Convention has been interpreted to
encompass not only a positive right to form and join an association,
but also the negative aspect of that freedom, namely the right not to
join or to withdraw from an association (see the above-mentioned
Sigurdur A. Sigurjónsson judgment, pp. 15-16, para. 35). Whilst
leaving open whether the negative right is to be considered on an equal
footing with the positive right, the Court has held that, although
compulsion to join a particular trade union may not always be contrary
to the Convention, a form of such compulsion which, in the
circumstances of the case, strikes at the very substance of the freedom
of association guaranteed by Article 11 (art. 11) will constitute an
interference with that freedom (see, for instance, the above-mentioned
Sibson judgment, p. 14, para. 29).
It follows that national authorities may, in certain
circumstances, be obliged to intervene in the relationships between
private individuals by taking reasonable and appropriate measures to
secure the effective enjoyment of the negative right to freedom of
association (see, mutatis mutandis, the Plattform "Ärzte für das Leben"
v. Austria judgment of 21 June 1988, Series A no. 139, p. 12,
paras. 32-34).
At the same time it should be recalled that, although
Article 11 (art. 11) does not secure any particular treatment of the
trade unions, or their members, by the State, such as a right to
conclude any given collective agreement, the words "for the protection
of [their] interests" in Article 11 para. 1 (art. 11-1) show that the
Convention safeguards freedom to protect the occupational interests of
trade-union members by trade-union action. In this respect the State
has a choice as to the means to be used and the Court has recognised
that the concluding of collective agreements may be one of these (see,
for instance, the Swedish Engine Drivers' Union v. Sweden judgment of
6 February 1976, Series A no. 20, pp. 15-16, paras. 39-40).
In view of the sensitive character of the social and political
issues involved in achieving a proper balance between the competing
interests and, in particular, in assessing the appropriateness of State
intervention to restrict union action aimed at extending a system of
collective bargaining, and the wide degree of divergence between the
domestic systems in the particular area under consideration, the
Contracting States should enjoy a wide margin of appreciation in their
choice of the means to be employed.
2. Application of the foregoing principles
46. The applicant emphasised that he objected to becoming bound by
a collective agreement mainly on grounds of political and philosophical
conviction. Rather than subjecting himself and his employees to union
corporatism, he wished to retain the personal character of the
relationship between himself as employer and his employees.
The applicant and the Commission were of the view that the
pressure which was brought to bear upon him was such as to require the
Swedish authorities to take positive measures of protection. Because
of the blockade and boycott, he was largely prevented from obtaining
deliveries of the necessary goods for the running of his restaurant
(see paragraph 14 above). As a result, the applicant's business
suffered considerably and he had to sell the restaurant (see
paragraph 23 above). These harsh measures had not been counterbalanced
by any strong legitimate interests of HRF in forcing the applicant to
sign a collective agreement. When taking action against the applicant,
HRF had not represented any members employed by him. The only HRF
member who was employed by the applicant had not asked for the union's
assistance but had expressly stated that she found the industrial
action unnecessary, as the terms of employment offered by him were not
open to criticism (see paragraph 15 above). On the contrary, they were
more favourable than those which would have applied under the
collective agreement in force. For these reasons HRF's action was
disproportionate to the interests which it sought to protect.
In such circumstances, the applicant and the Commission
underlined, it was incumbent on the respondent State to provide for
effective legal redress, for instance by making available to the
applicant legal procedures which would have made it possible for him
to mitigate or terminate the action taken against him. Since no such
legal protection existed in Swedish law, the facts giving rise to the
applicant's complaint constituted a violation of his rights under
Article 11 (art. 11) of the Convention.
47. The applicant further considered that the Government, having
refrained from arguing before the Commission that the union action was
justified, were estopped from changing their stance and adducing
evidence in this respect in the proceedings before the Court.
The Commission's Delegate pointed out that the additional
information and fresh arguments submitted by the Government on this
point could and should have been adduced and invoked before the
Commission. She invited the Court to consider very carefully what
weight could be given to that information and to those arguments at
this late stage of the proceedings.
48. The Government, in their memorial to the Court, stressed for
the first time that the Commission's finding that the terms of
employment of the applicant's employees were more favourable than those
that would have applied under a collective agreement, was based on the
applicant's own submissions to the Commission and had never been
confirmed or accepted by the Government. Before the Court, the
Government, relying on information provided by HRF, disputed this
finding. The collective agreement which the union sought to achieve
with the applicant had had the aim of substantially improving the
economic and social conditions for the applicant's existing and future
employees (see paragraph 15 above). In the absence of a collective
agreement governing the relationship between the applicant and his
employees, the latter could not benefit from the protection provided
in important parts of the Swedish labour legislation. The working
conditions applied by the applicant gave him a competitive advantage
over other restaurant owners.
49. In the Government's opinion, the applicant was in effect
challenging a system that had been applied in Sweden for sixty years
and which could be said to have formed one of the most important
elements in what had become known as the "Swedish model" of industrial
relations, believed by many to have contributed significantly to the
Swedish Welfare State. The Government stated that in Sweden most major
employers were affiliated to an employers' organisation bound by a
collective agreement and about 85% of employees were unionised. An
essential and long-standing feature of the Swedish model was that
industrial relations were determined primarily by the parties to the
labour-market rather than by State intervention. Thus, wages, working
hours, leave entitlements and various other kinds of terms of
employment were governed by collective agreements, covering 90% of the
labour-market, rather than by legislation. Another important feature
was that employers should not be able to gain a competitive advantage
over their competitors by offering less favourable working conditions
than those provided for by collective agreements.
Moreover, the Government pointed out that, as a result of the
prohibition under Swedish law to resort to strikes, boycotts and other
means in industrial relations governed by a collective agreement, such
actions had been kept at a tolerable level for many years. On the
other hand, unions not bound by a collective agreement with a
particular employer had been left with a wide discretion in taking
measures to make that employer sign a collective agreement. This
reflected the importance the legislator had attached to the right of
trade unions to promote their interests.
50. In these circumstances, the Government considered that Sweden
was not under an obligation under Article 11 (art. 11) of the
Convention to take positive measures to protect the applicant against
the union action.
51. As to the particular circumstances of the present case, the
Court notes from the outset that the additional information concerning
the terms and conditions of employment adduced by the Government before
it supplement the facts underlying the application declared admissible
by the Commission. The Court is not prevented from taking them into
account in determining the merits of the applicant's complaints under
the Convention if it considers them relevant (see the Barthold v.
Germany judgment of 25 March 1985, Series A no. 90, p. 20,
paras. 41-42; and the McMichael v. the United Kingdom judgment of
24 February 1995, Series A no. 307-B, p. 51, para. 73).
52. As indicated earlier (see paragraph 44 above), the union action
must have entailed a considerable pressure on the applicant to meet the
union's demand that he accept to be bound by a collective agreement,
either by joining an employers' association or by signing a substitute
agreement. However, only the first alternative involved membership of
an association.
It is true that, had the applicant opted for the second
alternative, he might have had less opportunity to influence the
contents of future collective agreements than as a member of an
employers' association. On the other hand, a substitute agreement
offered the advantage that it would have been possible to include in
it individual clauses tailored to the special character of the
applicant's business. In any event, it does not appear, nor has it
been contended, that the applicant was compelled to opt for membership
of an employers' association because of economic disadvantages attached
to the substitute agreement.
In reality the applicant's principal objection to the second
alternative was, as in relation to the first alternative, of a
political nature, namely his disagreement with the
collective-bargaining system in Sweden. However, Article 11 (art. 11)
of the Convention does not as such guarantee a right not to enter into
a collective agreement (see the above-mentioned Swedish Engine Drivers'
Union judgment, pp. 15-16, paras. 40-41). The positive obligation
incumbent on the State under Article 11 (art. 11), including the aspect
of protection of personal opinion, may well extend to treatment
connected with the operation of a collective-bargaining system, but
only where such treatment impinges on freedom of association.
Compulsion which, as here, does not significantly affect the enjoyment
of that freedom, even if it causes economic damage, cannot give rise
to any positive obligation under Article 11 (art. 11).
53. Furthermore, the applicant has not substantiated his submission
to the effect that the terms of employment which he offered were more
favourable than those required under a collective agreement. Bearing
in mind the special role and importance of collective agreements in the
regulation of labour relations in Sweden, the Court sees no reason to
doubt that the union action pursued legitimate interests consistent
with Article 11 (art. 11) of the Convention (see, for instance, the
above-mentioned Swedish Engine Drivers' Union judgment, pp. 15-16,
para. 40; and the Schmidt and Dahlström v. Sweden judgment of
6 February 1976, Series A no. 21, p. 16, para. 36). It should also be
recalled in this context that the legitimate character of collective
bargaining is recognised by a number of international instruments, in
particular Article 6 of the European Social Charter, Article 8 of the
1966 International Covenant on Economic, Social and Cultural Rights and
Conventions nos. 87 and 98 of the International Labour Organisation
(the first concerning freedom of association and the right to organise
and the second the application of the principles of the right to
organise and to bargain collectively).
54. In the light of the foregoing, having regard to the margin of
appreciation to be accorded to the respondent State in the area under
consideration, the Court does not find that Sweden failed to secure the
applicant's rights under Article 11 (art. 11) of the Convention.
55. In sum, the Court reaches the conclusion that the facts of the
present case did not give rise to a violation of Article 11 (art. 11)
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
56. The applicant, referring to his allegations mentioned above
(see paragraphs 39, 43, 46 and 47 above), submitted that the respondent
State's failure to provide protection against the industrial action had
caused him pecuniary damage, in violation of Article 1 of
Protocol No. 1 (P1-1), which reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles
of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other
contributions or penalties."
The applicant contended that, as a consequence of the union
action, he had had to sell his restaurant (see paragraph 23 above) at
a loss of SEK 600,000.
57. The Government disputed the above allegation, whereas the
Commission, having regard to its finding of a violation of Article 11
(art. 11), did not find it necessary to address the issue under
Article 1 of Protocol No. 1 (P1-1).
58. The Government conceded that the industrial action, having
mainly the effect that the applicant's suppliers could not deliver
goods necessary for the running of his restaurant, must have led to
difficulties in the running of the applicant's business. However, the
applicant had failed to substantiate any actual financial damage caused
thereby and the Government had doubts as to how serious the
consequences actually were for his business. The Government also
denied that this matter, which essentially concerned the contractual
relationships between the applicant and his suppliers, could engage the
responsibility of the State under Article 1 of Protocol No. 1 (P1-1).
The State had not interfered with the applicant's business but had only
passively tolerated the trade unions' activities in an open market.
The situation was comparable to a consumer boycott instituted against
a private company. Yet customers should be free to take such measures
without the State incurring liability, even if the boycott led to
bankruptcy of the company.
59. According to the Court's case-law, Article 1 (P1-1), which
guarantees in substance the right of property, comprises three distinct
rules. The first, which is expressed in the first sentence of the
first paragraph (P1-1) and is of a general nature, lays down the
principle of peaceful enjoyment of property. The second rule, in the
second sentence of the same paragraph (P1-1), covers deprivation of
possessions and subjects it to certain conditions. The third,
contained in the second paragraph (P1-2), recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The second
and third rules, which are concerned with particular instances of
interference with the right to peaceful enjoyment of property, are to
be construed in the light of the general principle laid down in the
first rule (see, among other authorities, the Pressos Compania Naviera
S.A. and Others v. Belgium judgment of 20 November 1995, Series A
no. 332, pp. 21-22, para. 33).
It was not contended that the second and third rules above were
applicable and the Court sees no reason to hold otherwise. On the
other hand, the applicant alleged that there had been a violation of
the first rule, namely the right "to the peaceful enjoyment of his
possessions".
60. Admittedly, the State may be responsible under Article 1 (P1-1)
for interferences with peaceful enjoyment of possessions resulting from
transactions between private individuals (see the James and Others v.
the United Kingdom judgment of 21 February 1986, Series A no. 98,
pp. 28-29, paras. 35-36). In the present case, however, not only were
the facts complained of not the product of an exercise of governmental
authority, but they concerned exclusively relationships of a
contractual nature between private individuals, namely the applicant
and his suppliers or deliverers. In the Court's opinion, such
repercussions as the stop in deliveries had on the applicant's
restaurant were not such as to bring Article 1 of Protocol No. 1 (P1-1)
into play.
III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
61. The applicant alleged that there had been a breach of Article 6
para. 1 (art. 6-1) of the Convention on the ground that the court
remedies at his disposal in order to obtain protection against the
industrial action would not have been effective. Article 6 para. 1
(art. 6-1), in so far as is relevant, reads:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by [a]
... tribunal ..."
62. In the Government's and the Commission's opinion, Article 6
para. 1 (art. 6-1) was inapplicable.
63. According to the principles in the Court's case-law (see, for
instance, the Kerojärvi v. Finland judgment of 19 July 1995, Series A
no. 322, p. 12, para. 32), the Court has first to ascertain whether
there was a dispute (contestation) over a "right" which could be said,
at least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious: it may relate not only to the
actual existence of a right but also to its scope and the manner of its
exercise. Finally, the result of the proceedings must be directly
decisive for the right in question. If the Court finds that there is
a dispute over a right, it must examine whether the right in question
was of a "civil" character.
64. The Government and the Commission observed that, although there
were various possibilities for the applicant to have the merits of his
case examined by a Swedish court (see paragraphs 33 and 34 above), it
was clear that the union action against him was lawful and that Swedish
law provided no basis for the national court to grant an order
remedying the situation complained of by the applicant. In these
circumstances, there was no dispute (contestation) over a right which
could be said on arguable grounds to be recognised under Swedish law.
Accordingly, Article 6 para. 1 (art. 6-1) was inapplicable.
65. The applicant, citing Swedish case-law, argued that the
negative right to freedom of association was recognised under Swedish
law. However, in his submission, by virtue of Article 17 of the
Instrument of Government which leaves it to the parties in the
labour-market to solve industrial disputes (see paragraph 29 above),
Sweden had abdicated its responsibilities as a Contracting Party to the
Convention. The notion of an "arguable claim" in the Court's case-law
under Article 6 (art. 6) of the Convention was not confined to the
position under national law but referred also to the law of the
Convention.
66. The Court observes that applicability of Article 6 (art. 6) of
the Convention depends on whether there is a dispute over a right
recognised by national law. The applicant's complaint under Article 6
para. 1 (art. 6-1) is not that he was denied an effective remedy
enabling him to submit to a court a claim alleging a failure to comply
with domestic law (as, for instance, in the Sporrong and Lönnroth v.
Sweden judgment of 23 September 1982, Series A no. 52, pp. 29-30,
paras. 80-82). Rather his complaint is essentially directed against
the fact that the union action was lawful under Swedish law. However,
that provision (art. 6-1) does not in itself guarantee any particular
content for (civil) "rights and obligations" in the Contracting States
(see, for example, the Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, pp. 16-17, para. 36). In the
instant case there was no right recognised under Swedish law to attract
the application of Article 6 para. 1 (art. 6-1) of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
67. The applicant in addition submitted that the same facts as
amounted to the alleged violation of Article 6 para. 1 (art. 6-1) (see
paragraphs 62 and 66 above) also constituted a breach of Article 13
(art. 13), which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity."
68. The Government disputed this allegation.
69. The Commission, having regard to its considerations with
respect to the applicant's complaint under Article 11 (art. 11) (see
paragraphs 43 and 46 above), was of the opinion that the applicant's
claim under this provision (art. 11) was arguable on its merits.
Furthermore, it was undisputed that no effective court or other remedy
was available to the applicant, given that the industrial action did
not contravene Swedish law. For these reasons the Commission shared
the applicant's view that there had been a breach of Article 13
(art. 13).
70. According to the Court's case-law, Article 13 (art. 13)
requires that, where an individual has an arguable claim to be the
victim of a violation of the rights set forth in the Convention, he or
she should have a remedy before a national authority in order both to
have his or her claim decided and, if appropriate, to obtain redress.
However, Article 13 (art. 13) does not go so far as to guarantee a
remedy allowing a Contracting State's laws as such to be challenged
before a national authority (see, for instance, the above-mentioned
James and Others judgment, p. 47, para. 84; and the above-mentioned
Powell and Rayner judgment, p. 16, para. 36). The applicant's
complaint under the Convention being essentially directed against the
fact that the union action was lawful under Swedish law, Article 13
(art. 13) is not applicable.
FOR THESE REASONS, THE COURT
1. Holds by eleven votes to eight that Article 11 (art. 11) of the
Convention was applicable in the present case;
2. Holds by twelve votes to seven that there has been no violation
of Article 11 (art. 11);
3. Holds by thirteen votes to six that Article 1 of Protocol No. 1
(P1-1) did not apply to the matters complained of by the
applicant and that there has accordingly been no breach of it
(P1-1);
4. Holds by fourteen votes to five that Article 6 para. 1
(art. 6-1) of the Convention did not apply in the present case
and that there has accordingly been no breach of it (art. 6-1);
5. Holds by eighteen votes to one that Article 13 (art. 13) of the
Convention did not apply in the instant case and that there has
accordingly been no breach of it (art. 13).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 25 April 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 55 para. 2 of Rules of Court B, the following
separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr Ryssdal, Mr Spielmann,
Mrs Palm, Mr Foighel, Mr Pekkanen, Mr Loizou, Mr Makarczyk and
Mr Repik;
(b) partly dissenting opinion of Mr Jambrek.
(c) dissenting opinion of Mr Walsh;
(d) dissenting opinion of Mr Martens, joined by Mr Matscher;
(e) dissenting opinion of Mr Morenilla;
(f) dissenting opinion of Mr Mifsud Bonnici;
Initialled: R.R.
Initialled: H.P.
PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, SPIELMANN, PALM,
FOIGHEL, PEKKANEN, LOIZOU, MAKARCZYK AND REPIK
Although we agree with our colleagues that there has been no
violation of Article 11 (art. 11) of the Convention, we arrive at this
conclusion on the ground that Article 11 (art. 11) is not applicable
to the complaint made by Mr Gustafsson.
The interests protected by Article 11 (art. 11)
As the judgment points out (at paragraph 45), Article 11
(art. 11) has been interpreted to encompass also the negative aspect
of freedom of association, namely the right not to join an association
(see Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June 1993,
Series A no. 264, pp. 15-16, para. 35). The Contracting States have
a duty under Article 11 (art. 11) to put in place a legal framework
enabling proper enjoyment of this negative right. It is apparent,
however, from the Court's case-law that Article 11 (art. 11) is not a
vehicle for regulating industrial relations in general or for generally
protecting against prejudice suffered as a result of industrial action
taken by one of the actors in the labour-market against another. The
Court has thus held that the right to collective bargaining is not an
inherent component of freedom of association under Article 11 (art. 11)
(see the Swedish Engine Drivers' Union v. Sweden judgment of
6 February 1976, Series A no. 20, p.15, para. 39). In our view,
neither does compulsion aimed at making an employer enter into a
collective agreement in itself - that is to say, in the absence of
compulsion to join an association - come within the safeguard afforded
by Article 11 (art. 11).
The compulsion complained of by the applicant
The judgment acknowledges that "the union action must have
entailed a considerable pressure on the applicant to meet the union's
demand that he accept to be bound by a collective agreement, either by
joining an employers' association or by signing a substitute agreement"
(see paragraphs 44 and 52). The facts of the present case are thus to
be distinguished from those in the cases of Young, James and Webster
v. the United Kingdom (judgment of 13 August 1981, Series A no. 44) and
Sigurdur A. Sigurjónsson (cited above), where the complainants were
compelled to join an association on pain of losing their means of
livelihood. Here the applicant was not forced to join an association
in order to be able to continue the pursuit of his economic activity,
since he had another alternative available to him, namely negotiating
a substitute agreement adapted to the special character of his
business. His objection to that alternative - because of his
disagreement with the collective-bargaining system in Sweden - does not
bring into play any interest protected by Article 11 (art. 11).
Conclusion
In the light of the foregoing considerations, we have come to
the conclusion that the facts complained of - in particular, the
compulsion exerted on the applicant to become bound by an agreement
governing the conditions of employment of his employees - do not
attract the application of Article 11 (art. 11).
PARTLY DISSENTING OPINION OF JUDGE JAMBREK
1. According to the Court's case-law, Sweden had a positive
obligation under Article 11 (art. 11) of the Convention to secure to
everyone within its jurisdiction the effective enjoyment of his or her
right to freedom of association with others, including the right not
to join or to withdraw from an association. The Convention being a
living instrument which must be interpreted in the light of present-day
conditions, that obligation entailed a duty for the respondent State
to prevent abuse of a dominant position by a trade union aimed at
compelling anyone to join an association or to adhere to a system of
collective bargaining.
To the above I would add that it does not follow from the
expression "striking at the very substance of", which has been used in
the Court's case-law in relation to complaints about compulsion to join
an association, that a different or more stringent test applies to the
assessment of whether there has been interference. Any interference
with an individual's exercise of his or her right to negative freedom
of association strikes, by definition and unconditionally, "at the very
substance" of that freedom.
2. Like the majority, I consider that the responsibility of Sweden
may be engaged even if the matters complained of did not involve direct
intervention by the respondent State, notably if they resulted from the
State's failure to secure to the applicant under domestic law the
rights set forth in Article 11 (art. 11).
My position differs, however, on the interpretation and
application of Article 11 (art. 11) in the light of the Drittwirkung
doctrine. In my view, the industrial action giving rise to the
applicant's complaint must be subject to the very same restrictions as
would apply to direct interference by the State. If the union action
was not justified under paragraph 2 of Article 11 (art. 11-2), the
respondent State was under a positive obligation to take action to
secure the applicant's enjoyment of his right to freedom of
association.
3. As to the specific circumstances of the case, I consider that
the facts complained of not only brought Article 11 (art. 11) into play
but also amounted to an interference with the applicant's right to
freedom of association as guaranteed by paragraph 1 of that Article
(art. 11-1). It must therefore be considered whether that interference
was justified under paragraph 2 (art. 11-2).
4. The union action, as was not contested, was clearly lawful
under Swedish law and I see no reason to doubt that it was "prescribed
by law" within the meaning of paragraph 2 of Article 11 (art. 11-2).
5. The restriction was obviously aimed at "the protection of the
rights and freedoms of others".
In this respect the judgment refers to "the occupational
interests of trade-union members" (see paragraph 45 of the judgment),
to "the special role and importance of collective agreements in the
regulation of labour relations in Sweden" and to the legitimacy of
collective bargaining "recognised by a number of international
instruments" (see paragraph 53 of the judgment).
It is not clear from the wording of the judgment whether the
majority assessed the unions' interests in relation to paragraph 1 or
paragraph 2 of Article 11 (art. 11-1, art. 11-2). Whilst the section
of the judgment dealing with "General principles" refers to "the words
'for the protection of [their] interests' in Article 11 para. 1
(art. 11-1)...", the section entitled "Application of the foregoing
principles" omits to mention which of the paragraphs of Article 11
(art. 11) is being applied.
It is important, when applying the proportionality test in
order to determine the question of necessity, to consider the "unions'
interests" in their proper context. As the unions are not parties to
the case before the Convention institutions, these interests should be
taken into account in the assessment of the legitimate aim pursued by
the impugned restrictions on the applicant's Article 11 (art. 11)
rights. The sole issue is whether there was a reasonable relationship
of proportionality between the aim sought to be achieved and
Mr Gustafsson's interest in not being compelled to conclude a
collective agreement.
6. However, for reasons which I will explain below, I do not find
that there was a reasonable relationship of proportionality between the
competing interests in the present case.
7. In the first place, it does not appear that Mr Gustafsson's
persistent refusal to associate himself or his employees with the
Swedish system of collective bargaining in any way interfered with the
rights and freedoms of the Hotel and Restaurant Workers' Union ("HRF").
Nor does it seem that any personal interest of any individual union
member was at stake. Indeed, the one of his employees who was a member
of HRF at the relevant time had publicly declared that she found the
action unnecessary as the salary and working conditions in
Mr Gustafsson's restaurant were not open to criticism.
8. Moreover, I would not attach any weight to the further
interests relied on by the majority, namely the corporate aim of
"extending a system of collective bargaining" in view of "the special
role and importance of collective agreements in the regulation of
labour relations in Sweden" (see paragraphs 45 and 53 of the judgment).
In this connection, it should be borne in mind that
approximately 85% of employees in Sweden were already covered by the
collective bargaining system. As a result, that system, which was
principally based on institutionalised relationships between employees
and employers, was already remarkably far-reaching, entrenched and
powerful. This was compounded by the fact that, according to the
applicant, the collective-bargaining system proved an effective means
of promoting membership of the Swedish Social Democratic Party, to the
point of making membership collective.
Further expansion of that system would have made it nearly
all-encompassing and all-powerful, which could hardly be said to be
consistent with the notion of pluralism in democratic society. On the
contrary, in order to secure the objectives implied by that notion,
namely institutional diversity and individual freedom of choice and
self-fulfilment, the State may be required to take protective measures
preventing trade unions from acquiring or using a dominant position,
especially where they constitute important corporate actors enjoying
broad economic, financial and political support.
9. Mr Gustafsson for his part had a number of legitimate interests
to defend when confronted with the collective action by the unions.
It not only endangered his business and financial interests but
threatened his whole philosophy of business, employment relations and
life-style.
As a matter of fact, it could be said that the employment
policy applied by the applicant at a micro-level in his restaurant
business was one based on co-determination and it sought to achieve the
very same societal goals as the collective-bargaining system at a
macro-level, namely industrial peace and solidarity.
10. Against this background, I do not find that the limitations
which the union action entailed on the applicant's exercise of his
right to freedom of association corresponded to any pressing social
need. The reasons adduced by the Swedish Government in this respect
were neither relevant nor sufficient for the purposes of paragraph 2
of Article 11 (art. 11-2). The form and degree of compulsion to which
Mr Gustafsson was subjected were disproportionate to the legitimate
aims pursued and were thus not necessary in a democratic society.
In these circumstances, the respondent State was under an
obligation to take appropriate measures to protect the applicant
against the union measures, so as to secure the effective enjoyment of
his right to negative freedom of association as guaranteed by
Article 11 (art. 11). By failing to do so, the State exceeded its
margin of appreciation, thereby violating Article 11 (art. 11).
DISSENTING OPINION OF JUDGE WALSH
1. I agree with the dissenting opinion of Judge Martens that this
case discloses a breach of Article 11 (art. 11). I also agree with his
reasoning.
2. Sweden is answerable for all breaches of the Convention
occurring within its jurisdiction whether caused by private parties or
by the State or its agencies (see the Young, James and Webster v. the
United Kingdom judgment of 13 August 1981, Series A no. 44, p. 20,
para. 49).
3. Under paragraph 1 of Article 11 (art. 11-1) the applicant had
the right of association with others. However, he also enjoyed as part
of that freedom the correlative right not to be forced, directly or
indirectly, into association with others. Even if one were to assume
that this correlative right could be restricted in accordance with
paragraph 2 of Article 11 (art. 11-2) there is nothing in the present
case to bring it within that provision (art. 11-2).
4. I also agree with the rest of Judge Martens's opinion.
DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE MATSCHER
1. To my regret I cannot agree with the opinion of the majority.
Since my analysis differs fundamentally from theirs, I will refrain
from engaging in controversy and simply set out my own views.
2. I base myself on the facts as they have been established by the
Commission. In so far as the Government have, before the Court, relied
on new facts which are contradictory to those established by the
Commission, I will ignore their assertions.
Certainly, in the proceedings before the Court the parties are,
in principle, free to allege new facts - that is facts not relied on
in the proceedings before the Commission - but this freedom is limited
by principles of fair procedure. Under the Convention system the
establishment and verification of the facts is primarily a matter for
the Commission (see, inter alia, the Ribitsch v. Austria judgment of
4 December 1995, Series A no. 336, p. 24, para. 32). Consequently,
additional facts supplementing or clarifying the facts established by
the Commission are admissible (see the McMichael v. the United Kingdom
judgment of 24 February 1995, Series A no. 307-B, p. 51, para. 73), but
new facts which are contradictory to those established by the
Commission, as a rule, are not. There are certainly exceptions to this
rule: facts which were unknown to the parties and the Commission at the
moment when the latter established its report and facts that occurred
after that moment are also admissible. However, the former category
does not include facts which the party adducing them could have known
had it been reasonably diligent and careful. The new contradictory
facts on which the Government now endeavour to rely fall into the
latter category. The Government have not denied that before the
Commission they were given ample opportunity to present their case.
They merely said that in availing themselves of that opportunity they
had omitted to consult the trade union concerned, giving no other
reason for that omission than "practical difficulties". Their omission
should remain at their own risk.
3. It will be recalled that the Commission established that:
(a) only one of the less than ten employees of the applicant was a
member of HRF, the trade union which took action against the applicant;
(b) this employee has publicly expressed the opinion that the trade
union's action was unnecessary since the salary and working conditions
in the restaurant were not open to criticism; (c) the conditions of
employment of the applicant's employees were more favourable than those
resulting from the collective agreement in force.
Thus, the trade union's action did not purport to improve
unacceptable, or at least less favourable, working conditions but
merely to enrol the applicant and his employees into the collective
bargaining system.
This is borne out by the fact that not only the applicant but
also five of his employees had recourse to the Convention organs. The
latter complained that the lack of State protection against what they
called the unjustified industrial actions instituted against their
employer's restaurant had violated their negative freedom of
association. They pointed out that the aim of the action was to
deprive them of any possibility of influencing the terms of their
contractual relationship with their employer. In its decision of
8 April 1994 (application no. 15533/89, Decisions and Reports 77-A,
pp. 10 et seq.) the Commission declared these complaints inadmissible,
but since they strongly corroborate its findings of fact in the present
case, they are, as such, a further argument against entertaining the
new factual assertions made by the Government.
Article 11 (art. 11)
4. Provisionally, this case can be seen as a conflict between -
on the one hand - a small employer whose deeply held political
convictions involve that a particular system of collective bargaining
and collective labour agreements has a harmful impact on the community
at large and is unacceptable per se and who therefore not only refrains
from joining an employers' association but also obstinately resists all
efforts of the trade union concerned to integrate him somehow or other
into that system, and - on the other hand - a trade union which is,
understandably, of the opinion that its occupational interests require
that every employer in the trade should take part in the system and
therefore endeavours to crush the employer's resistance by collective
action.
On this provisional analysis what is at stake is a conflict
between two fundamental rights, that of the trade union relying on its
positive freedom of association and that of the employer who invokes
his negative freedom of association.
5. The Government deny, however, that the applicant's negative
freedom of association was in issue. They submit that the primary aim
of the collective action was not to compel the applicant to join an
employers' association, but to make him bound by a collective
agreement.
This argument fails.
A first point to make is that the subjective aim of the
collective action is immaterial. What is decisive is the objective
effect of the trade union's conduct. Objectively speaking, the
applicant was confronted with a demand - under threat of collective
action - to integrate himself into the collective-bargaining system
either by joining an employers' association or by signing a so called
"substitute agreement", which amounted to accepting to be bound not
only by the existing collective labour agreement but also by future
agreements or at least next season's agreement.
The applicant was thus subjected to serious compulsion to
integrate himself, in one way or another, into the
collective-bargaining system. That compulsion interfered with his
negative freedom of association since it was incompatible with an
element necessarily inherent in that freedom, namely his freedom to
negotiate his own labour agreements.
6. The Government say that such a freedom is not protected under
the Convention. That argument fails to appreciate, however, the
indissoluble link which, in the context of industrial relations, exists
between trade-union freedom (as a special form of positive freedom of
association), the right to bargain collectively and the right to take
collective action in order to protect occupational interests. As is
illustrated inter alia by the twin Articles 5 and 6 of the European
Social Charter (and the pertinent conclusions concerning these
provisions of the Committee of Independent Experts), under
international labour law the right to bargain collectively is, if not
an objective of, then at any rate a corollary of both the positive
freedom of association of trade unions and its necessary derivative,
the freedom of the unions to protect their occupational interests by
collective action.
It is true that in its now twenty-year-old and rather reticent
judgments on the scope of the protection which trade unions enjoy under
Article 11 (art. 11) (the National Union of Belgian Police v. Belgium
judgment of 27 October 1975, Series A no. 19; the Swedish Engine
Drivers' Union v. Sweden judgment of 6 February 1976, Series A no. 20,
and the Schmidt and Dahlström v. Sweden judgment of 6 February 1976,
Series A no. 21) the Court refrained from subscribing to the
Commission's carefully reasoned and extensively documented opinion that
the right to bargain collectively is indispensable for the effective
enjoyment of trade-union freedom and is thus an element necessarily
inherent in that freedom as safeguarded under Article 11 (art. 11)
(Series B no. 18, pp. 47 et seq., paras. 76-78). However, under
present-day conditions - as reflected inter alia in the International
Labour Organisation ("ILO") Committee on Freedom of Association's
conclusions under ILO Convention no. 98 - it cannot be doubted that the
right to bargain collectively is such an element, just like the right
to protect the occupational interests of trade-union members by
collective action.
Likewise, but on the reverse side of the same coin, an
employer's negative freedom of association necessarily implies the
freedom not be integrated into a collective-bargaining system, that is
the freedom to negotiate his own labour agreements.
In sum, Article 11 (art. 11) is applicable. The next question
is whether it has been violated.
7. The finding that Article 11 (art. 11) is applicable renders
definitive the above provisional analysis of the case as a conflict
between the positive freedom of association of the trade union and the
negative freedom of association of the applicant employer.
Consequently, it becomes necessary in the present case to determine the
question left open in the Sigurdur A. Sigurjónsson v. Iceland judgment
(30 June 1993, Series A no. 264, p. 16, para. 35). In that judgment
the Court recognised (as the Committee of Independent Experts had done
with respect to Article 5 of the European Social Charter) that "Article
11 (art. 11) must be viewed as encompassing a negative right of
association", but left open the - crucial - question "whether this
right is to be considered on an equal footing with the positive right".
8. In the context of a conflict between the two rights, the
question is not so happily worded in so far as it postulates that the
only way to resolve a conflict between them is by assigning them
different weights. Quaeritur ergo which of the two is to be considered
the weightier? In answering this question under the Convention, the
point of departure should be the character of that instrument. The
Convention purports to lay down fundamental rights of the individual
and to furnish the individual an effective protection against
interferences with these rights. Therefore, once it is recognised that
Article 11 (art. 11) encompasses a negative as well as a positive
freedom of association, the negative freedom should in principle
prevail in a conflict between them.
The words "in principle" should be stressed. Admittedly, it
has now been accepted that these rights are two sides of the same coin,
but where they are in conflict the collective aspects of the positive
right, notably the importance of social solidarity, must not be
ignored. Consequently, it may well be that for the final balancing
exercise in such cases it is material whether the negative freedom of
an employee or that of an employer is at stake. Social solidarity does
not always have the same content or the same value. In other words,
it may make a difference whether the conflict of rights concerns a
friction within the same camp (a dissension between a trade union and
an individual employee) or one between camps (a dissension between a
trade union and an individual employer); just as, where the conflict
concerns only one camp, it may make a difference what is the object of
the dissension.
However that may be, the predominance in principle of the
negative right implies that in cases where (as here) trade unions use
collective action as a form of compulsion for compelling an individual
employer to be directly or indirectly integrated in the system of
collective bargaining, there is no longer any room for the
"striking-at-the-very-substance-of-the-right-guaranteed-by-Article-11"
(art. 11) test of the Young, James and Webster v. the United Kingdom
judgment (13 August 1981, Series A no. 44, p. 23, para. 52). This is
because this rather restrictive test was based on the assumption - only
accepted for the sake of the argument (ibid., p. 21) - that the
negative freedom is not enshrined in the Convention.
This test must be replaced by one which better reflects the
human rights ideal that the individual must in principle be free to act
according to his convictions and, accordingly, be protected against
having to go against those convictions as a result of constraining
collective action by one or more trade unions. In this context it
should be recalled that one of the objectives of freedom of association
is precisely the protection of freedom of thought, conscience and
religion and freedom of personal opinion (see, inter alia, the Vogt
v. Germany judgment of 26 September 1995, Series A no. 323 p. 25,
para. 64).
9. Since in case of conflict between the freedom of association
and the freedom of dissociation the latter prevails in principle, the
traditional - and legitimate - occupational interest of trade unions in
achieving widespread organisation and universality of the
collective-bargaining system cannot in itself justify the use of
collective action in order to compel an individual employer to join an
employers' association or to be otherwise integrated in the system of
collective bargaining. It follows that such constraining trade-union
action against an individual employer should be held to violate his
negative freedom under Article 11 (art. 11) unless:
(a) it is prompted by other legitimate occupational interests
than that of achieving widespread organisation and universality of the
collective-bargaining system; and
(b) wielding the weapon of collective action is proportionate
to those other interests.
This onus of alleging and proving such other interests should
be on the trade union. In cases like the present one such other
interests could be, for instance, that the employer exploits his
employees who are members of the trade union and perhaps even his
employees in general, if one is prepared - as I would be - to allow
trade unions to act in such cases also in the interests of employees
in general.
10. It follows that the High Contracting Parties, being bound to
secure every individual's negative freedom of association, have a
positive obligation to protect that freedom against abuse or
disproportionate use of collective action by trade unions. The
necessary inference is that Article 11 (art. 11) - just like Article 8
(art. 8) and Article 1 of Protocol No. 1 (P1-1) - implies a procedural
requirement: individuals claiming to be victims of abuse or
disproportionate use of collective action by trade unions should be
able to seek legal protection before an independent and impartial
tribunal. I note that this conclusion is consistent with the Committee
of Independent Experts' case-law as to a positive obligation for
Contracting States to provide legal remedies with respect to practices
which unduly obstruct negative freedom of association under Article 5
of the European Social Charter (see Conclusions VIII, p. 77, and XI-1,
p. 78).
11. In view of the Government's strongly worded argument based on
the so-called "Swedish model", I would like to add that the requirement
that victims of disproportionate use of trade-union action should be
able to bring their case to court is also a requirement of the rule of
law. The rule of law - that essential protection of the individual to
which the Preamble of the Convention refers and which the European
Court is bound to take into account - not only requires that the
individual should be enabled to have a court review the lawfulness and
proportionality of interferences in his rights by the executive, but
also that he be secured similar protection against other powerful
entities created or allowed by the State. Under the Convention there
is no scope for trade unions being exempt from judicial control to a
greater extent than States.
Thus, also the rule of law requires that a legal system which -
like the Swedish - confers on trade unions and employers' associations
a constitutional right to take strike or lock-out or any similar
measures, should make it possible for any individual victim of such
actions to seek protection in the courts and to have them determine
whether or not the trade union or employers' association, as the case
may be, has abused its constitutional freedom. It may be that under
the "Swedish model" the democratic legislature was convinced that
granting trade unions an (almost) unrestricted right to promote their
members' interests would best benefit the community as a whole, but the
rule of law - and, moreover, legal equality within the Council of
Europe - make it impossible to accept, even on the part of a democratic
legislature, that for whatever reasons a trade union should have the
privilege of being the sole and ultimate arbiter between the interests
of its members and those of a small employer who objects to joining the
system.
12. It is common ground that under Swedish law it was not possible
for the applicant to bring an action against the trade unions in order
to have the courts assess whether or not there were relevant and
sufficient grounds for interfering by collective action with his
negative right of association (see paragraph 7 above). That suffices
to warrant the conclusion that the applicant's rights under Article 11
(art. 11) have been violated.
13. The Government have argued that to hold that trade unions
should be answerable in court with respect to collective actions would
infringe the interpretative rule of Article 60 (art. 60) of the
Convention since Swedish law ensures them, as a fundamental freedom,
immunity from suit.
The argument fails. The immunity from suit which trade unions
enjoy under Swedish law does not come within the category of the "human
rights and fundamental freedoms" referred to in Article 60 (art. 60).
The essential flaw of that immunity is that it is incompatible both
with the rule of law and with a proper protection of the individual's
negative rights under Article 11 (art. 11). Having created a right
that is thus essentially flawed, Sweden should not be allowed to pass
it off as a human right or fundamental freedom within the meaning of
those terms in the context of the Convention.
Other complaints
14. In view of the above, I do not need to go into the complaints
under Articles 1 of Protocol No. 1 (P1-1), 6 or 13 (art. 6, art. 13)
of the Convention, since the lack of access to a tribunal is already
decisive under Article 11 (art. 11).
I would only add that the procedural requirement of Article 1
of Protocol No. 1 (P1-1) has not been satisfied and that this justifies
the conclusion that there is a violation under that provision (P1-1)
also.
The argument of the Government that the blockade, being a
measure of a private entity against a private person, falls outside the
scope of Article 1 of Protocol No. 1 (P1-1) cannot be accepted. Even
if collective actions of trade unions could, as the Government wrongly
suggest, be simply put on a par with a commercial boycott and similar
phenomena, the Government's argument fails to appreciate that a legal
system that did not allow the victim of such commercial actions to
bring a case against the tortfeasors in order to seek an injunction or
damages would likewise violate Article 1 of Protocol No. 1 (P1-1).
However that may be, the Government of a State which allows its trade
unions an almost unrestricted right to take collective action whenever
they deem such action in the interest of their members is certainly
under a positive obligation to see to it that such action does not
interfere with the rights of others under the first rule of Article 1
of Protocol No. 1 (P1-1); and this positive obligation implies at least
that the victims of such collective action should have the opportunity
to have an independent and impartial tribunal review the
proportionality issue.
Conclusion
15. In sum, Sweden has violated Article 11 (art. 11).
DISSENTING OPINION OF JUDGE MORENILLA
1. To my regret I am unable to share the majority's approach and
decision of non-violation of Article 11 (art. 11) of the Convention in
this case. For reasons that I expressed in my dissenting opinion in
the Sibson v. the United Kingdom judgment of 20 April 1993 (Series A
no. 258-A, pp. 16-19), I do follow however its conclusion on the
applicability of Article 11 (art. 11) of the Convention to the
subject-matter of the applicant's complaint. In spite of a certain
reluctance to "open the door" to the negative freedom of association
(paragraph 45, sub-paragraph 2) the Court, following the
Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June 1993
(Series A no. 264, pp. 15-16, para. 35), has interpreted this Article
(art. 11) in its logical sense that this negative right of
association - the right not to join or to withdraw from a trade union
- is only one aspect of the freedom of association with others.
2. In my opinion, however, the majority has not reached the
logical consequence of this premise, namely that the facts adduced by
Mr Gustafsson amounted to a violation of his right not to join a trade
union and of his right to refuse to enter into collective negotiation
with trade unions under the menace of collective action such as a
blockade or boycott.
3. The majority, on the contrary, arrives to its conclusion of
non-violation after establishing as "general principles" of compliance
with Article 11 (art. 11) of the Convention (paragraph 45 of the
judgment) the following: (a) the subject-matter of the applicant's
complaint did not involve a direct intervention by the State; (b) as
the Court held in the above-mentioned Sibson judgment, only a form of
compulsion which, in the circumstances of the case, strikes at the very
substance of the freedom of association guaranteed by Article 11
(art. 11) will constitute an interference with that freedom; (c) the
wording of Article 11 (art. 11) shows that the Convention safeguards
freedom to protect the occupational interests of trade-union members
by trade-union action; (d) according to the case-law of the Court (the
Swedish Engine Drivers' Union v. Sweden judgment of 6 February 1976,
Series A no. 20), the conclusion of collective agreements may be one
of the means chosen by the State for achieving that purpose; and (e)
the Contracting States should enjoy a wide margin of appreciation in
their choice of the means to be employed.
4. This reasoning, in my opinion, is not consistent with the very
substance of Mr Gustafsson's "negative" freedom of association
guaranteed by Article 11 (art. 11). The positive obligation of Sweden
under Article 1 (art. 1) of the Convention of securing the applicant's
right requires that legal and procedural means be established to
protect the individual against measures taken by the trade unions
considered by employers or employees to be "unreasonable or
inappropriate". In the present case the responsibility of Sweden under
the Convention is engaged precisely because of this failure.
5. The measures of blockade and boycott appear to have been taken
by trade unions against the applicant for refusing the alternatives of
either joining an employers' association or signing a "substitute"
collective agreement. The collective compulsion was therefore not in
the interest of Mr Gustafsson but rather in that of a system of imposed
collective labour agreements in which the will of the individual does
not seem to be taken into account. In the above-cited Swedish Engine
Drivers' Union judgment (in paragraphs 39 and 40), the Court states the
terms of collective agreements between employers and a trade union
representing the employees (Article 11 (art. 11) of the Convention) and
emphasises that the European Social Charter (Article 6 para. 2)
"affirms the voluntary nature of collective bargaining and collective
agreements". The right of trade unions under Article 11 (art. 11) of
the Convention to strive for the protection of their members' interests
"under national law" cannot, in my view, embrace measures so
inconsistent with the very substance of the right to freedom of
association, and the aim to achieve "industrial peace" seems to me also
incompatible with such a right under the Convention.
6. The only restrictions that can be placed on the exercise of the
right to freedom of association are those set forth in paragraph 2 of
Article 11 (art. 11-2) of the Convention. These restrictions are to
be prescribed by law and they must fulfil the standards established in
this Article (art. 11). I think that the margin of appreciation of the
State in social or political issues cannot be validly invoked to
justify the lacunae of the Swedish legal system concerning protection
of employers or employees against collective measures of compulsion
when their pertinence and proportionality is not checked by the courts
or by independent and impartial tribunals.
7. Since I have found a violation of Article 11 (art. 11) of the
Convention by reason of the Swedish legal system not affording
protection of the individual against collective action of trade unions
to the detriment of his rights or possessions, the other complaints of
the applicant under Article 1 of Protocol No. 1 (P1-1) and Articles 6
and 13 (art. 6, art. 13) of the Convention are mere consequences of the
violation of Article 11 (art. 11). The operative part of the judgment
has prompted me, however, to give a negative answer to the points at
issue.
DISSENTING OPINION OF JUDGE MIFSUD BONNICI
1. I am in general agreement with the dissenting opinions of my
brother judges Martens and Morenilla and I find that there has been a
violation of Article 11 (art. 11).
2. To that concurring dissent, I would only add the following
short observation. I too, like Judge Martens, was particularly
impressed by the facts which are mentioned in paragraphs 11 and 15 of
the judgment. It was not only the applicant, an employer, who was not
a union member, as he did not choose to join the Swedish Hotel and
Restaurant Entrepreneurs' Union ("HRAF"); his employees too, except
one, were not members of the Hotel and Restaurant Workers' Union
("HRF"). Employer and employees had obviously opted not to adhere to
any union in conformity with the fundamental right underlying Article
11 (art. 11) of the Convention. Both considered that it was in their
respective interests that they stay out, as going in would in fact have
meant that their relationship would be covered by a general collective
agreement, which they both considered to be less advantageous than the
terms on which they had mutually agreed. The only HRF member employed
by the applicant at the relevant time had in fact "publicly expressed
the opinion that the industrial action was unnecessary, as the salary
and working conditions in the restaurant were not open to criticism".
3. The actions of the unions created a situation of compulsion
which had decisive results. The most important and relevant of these
was that the contract or contracts of service between the applicant and
the employees were rendered completely ineffectual as they could, in
no way, be carried out. Paragraph 52 of the judgment, in considering
the matter of compulsion, concludes:
"Compulsion which, as here, does not significantly affect the
enjoyment of that freedom, even if it causes economic damage,
cannot give rise to any positive obligation under Article 11
(art. 11)."
In my view, however, the compulsion in issue did significantly
affect the applicant's enjoyment of his right to freedom of
association.