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SECOND
SECTION
CASE OF
EVALDSSON AND OTHERS v. SWEDEN
(Application
no. 75252/01)
JUDGMENT
STRASBOURG
13
February 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Evaldsson and Others v. Sweden,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr A.B. Baka, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D.
Jočienė, judges,
and Mrs S. Dollé,
Section Registrar,
Having
deliberated in private on 20 June 2006 and 16 January 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 75252/01) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by five Swedish nationals, Mr Tommy Evaldsson,
Mr Johan Svahn, Mr Tonnie Hodell, Mr Jonny Lindqvist and Mr
Conny Brandt (“the applicants”), and the Swedish
Construction Industries (Sveriges Byggindustrier) (hereinafter
“the Industries”) on 4 September 2001.
- The
applicants alleged that the levying of monitoring fees on the
individual applicants’ wages involved violations of Articles 9,
10, 11 and 14 of the Convention and Article 1 of Protocol No. 1 to
the Convention.
- By
a decision of 28 March 2006, the Court declared the application
admissible with respect to the five individual applicants and
inadmissible insofar it concerned the Industries.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 20 June 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr C.H. Ehrenkrona,
Ministry for Foreign Affairs, Agent,
Ms K. Renman, Ministry
of Industry, Employment and Communications,
Mr M. Falk, Ministry
for Foreign Affairs,
Ms P. Herzfeld Olsson, Ministry of Industry,
Employment and Communications, Advisers;
(b) for the applicants
Mr P. Bratt,
Representative, Counsel,
Mr J. Södergren,
Representative, Co-counsel,
Mr C. Crafoord, Lawyer,
Mr G.
Herrlin, Head of the Lawyers’ Section of the Industries,
Ms T.
Holm, Lawyer, Advisers,
Mr T. Evaldsson, Applicant.
The
Court heard addresses by Mr Ehrenkrona, Mr Bratt and Mr Södergren.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1948, 1974, 1965, 1964 and
1963 respectively. They were employed by the construction company LK
Mässinteriör AB (hereinafter “the company”)
between 3 March and 30 July 1999 on a time-wage basis.
- The
company, being a member of the Industries, was bound by a collective
labour agreement, the Construction Agreement (Byggnads-avtalet),
concluded between the Swedish Building Workers’ Union (Svenska
Byggnadsarbetareförbundet, hereinafter “the Union”)
and the Industries. The relevant local branch of the Union in the
instant case was the Stockholm branch, Byggettan.
- At
the material time, eight employees in the company carried out work
covered by the labour agreement. Three of these workers were members
of the Union whereas the five applicants were not members of the
Union or of any other trade union.
- Under
section 3, subsection f 5 of the collective agreement, as it
stood at the relevant time, the local branch had the right to inspect
on a continuous basis wage conditions by measuring piecework
(ackordsarbete) and result work (resultatarbete), as
well as monitoring time-based work (tidlönearbete). If
inspections were carried out in accordance with the collective
agreement, the local branch had the right to reimbursement of the
costs involved on the basis of a fee of 1.5% of the worker’s
wages. The employer was obliged to deduct this amount from the
worker’s wages and to supply the local branch with the
information necessary for the inspection work.
- On
12 January 1978 the Industries and the Union concluded an accord
pursuant to which a worker organised in a trade union other than the
Union could request his or her employer not to deduct the inspection
fee, with the result that the Union would no longer have the right to
request either information or the payment of a fee in respect of that
worker. In a subsequent dispute between the Industries and the Union
over the interpretation of the accord, an out-of-court settlement was
reached on 29 February 2000 to the effect that it applied to all
workers belonging to a trade union other than the Union.
- On
22 May 1991 the company and Byggettan concluded an agreement
concerning the inspection work. The agreement gave details of the
work and specified, inter alia, that it was the company’s
responsibility to provide Byggettan with the wage information
and to deduct fees from the wages of the workers and pay them to
Byggettan six times a year. The information was to include the
place of work, the names and social security numbers of the workers
and the working hours and net wages.
- The
applicants requested to be exempt from the deductions, which in their
case concerned fees for monitoring the wages for hourly work. The
company complied with their requests, stopped paying the fees to
Byggettan and did not provide it with the above-mentioned wage
information concerning the applicants. Byggettan insisted on
payment and initiated formal local negotiations. These were held on
23 March and 19 April 1999. However, no solution was reached, either
in the local negotiations or in the subsequent central negotiations
between the Industries and the Union.
- The
Industries eventually brought the case before the Labour Court
(Arbetsdomstolen), seeking a declaratory judgment to the
effect that the company was not obliged to levy the monitoring fees
in question. It argued that the inspection of wages, in so far as it
did not concern the technical measuring of piecework, aimed at
securing the observance of the provisions of the collective labour
agreement and was therefore part of the general activities of the
Union. Moreover, the 1998 and 1999 annual reports of Byggettan
allegedly showed that the inspection fees greatly exceeded the
costs of the work and that the surplus was used for general union
activities. Consequently, the corresponding deductions from the
applicants’ wages were tantamount to forced union membership
or, at least, involved an unacceptable compulsion to join the Union
or another trade union. The conduct thus violated their negative
freedom of association under Article 11 of the Convention as well as
under domestic law. Furthermore, since the applicants did not share
the political values of the Union, the levy on their wages also
violated their rights under Article 10 of the Convention.
- Two
of the applicants, Mr Evaldsson and Mr Hodell, were heard by the
Labour Court. They submitted that they opposed the deductions because
they did not think that the monitoring work was of any use to them
and considered the deductions an unnecessary expense. Allegedly, they
also submitted that they felt that the deductions were unjust.
- The
Union disagreed with the Industries, arguing that the monitoring fees
could not be seen as tantamount to forced membership of the Union,
such membership being secured through the payment of a separate
membership fee. The system of monitoring fees did not involve a
compulsion to join a trade union. Moreover, the applicants had not
expressed any ideological reasons for their unwillingness to
contribute to the monitoring work. The Union claimed that, contrary
to the Industries’ allegation, the 1998 and 1999 annual reports
of Byggettan showed that the proceeds of that work had not
contributed to general union activities but that, in fact, the
monitoring had been run at a loss. Furthermore, the inspection work
was strictly separated, economically and otherwise, from the other
activities of Byggettan. Finally, arguing that the positive
aspect of the freedom of association under Article 11 of the
Convention was stronger than its negative counterpart, the Union
claimed that a ban on the levying of monitoring fees on unorganised
workers’ wages would violate the positive rights of its
members, as this could induce members to leave the Union in order to
avoid paying the fees.
- By
a judgment of 7 March 2001, the Labour Court rejected the Industries’
claims. It referred to several of its previous judgments concerning
various types of measurement and monitoring fees. In a case from 1977
(AD 1977 nr 222), the court had found that the monitoring of
time-based wages was wholly different from the measuring of
piecework, as no special action had to be taken to establish the
amount and type of work performed. Instead, the inspection of
time-based wages rather aimed at securing the observance of the
collective labour agreement and also served as a basis for the
statistics used by the Union in wage negotiations with the employers.
Consequently, the monitoring benefited the general union activities
and the fees contributed financially to those activities. The court
had therefore concluded that the levying of fees on the wages of
members of the Syndicalist Union for monitoring work carried out by
another trade union involved a violation of those worker’s
positive freedom of association, as they would have to resign from
their own organisation in order to avoid contributing to both
organisations.
The
Labour Court stated that there was no reason to come to a different
conclusion in the instant case as to the nature of the monitoring
work. Thus, from the point of view of association law, there was no
reason to distinguish between monitoring work and general union
activities. Having reached that conclusion, the court found no reason
to determine whether the monitoring fees generated a surplus which
contributed to other union activities.
However,
the situation in the instant case was different from the 1977 case in
that the applicants were not subjected to pressure to leave their
organisation. Instead, the question was to what extent they were
protected by a right to negative freedom of association. The Labour
Court noted that the negative freedom of association under domestic
law was exclusively based on the Convention. It referred to the
European Court’s case-law and drew the conclusion that only the
core of the negative freedom of association was protected under
Article 11 of the Convention, meaning that a person must have been
subjected to a certain measure of force or at least strong pressure
to join an organisation in order to give rise to a violation of
Article 11.
The
Labour Court initially concluded that the monitoring fee deductions
did not entail membership of the Union and that no pressure had been
exerted to compel the applicants to join the Union against their
will.
It
further found that the fact that the applicants, through payment of
the monitoring fee, indirectly supported the activities of the Union
did not in itself amount to forced membership, since being a member
of the Union also entailed certain other duties, such as loyalty to
its objectives and payment of a membership fee. The situation would
have been different if the applicants would to some extent have been
associated with the Union’s ideology as a result of the
monitoring fee deductions. However, the fee in issue was deducted in
accordance with their employer’s obligations under the
collective labour agreement, and it was, accordingly, difficult to
see a link with the Union’s ideology. In this connection, the
court also referred to the evidence given before it by Mr Evaldsson
and Mr Hodell. While it questioned whether the grounds for their
position in the case could have a bearing on their negative freedom
of association, the court nevertheless found that there was no
indication that they opposed the deduction of the fees because they
took exception to union activities in general or to the ideology of
the Union.
The
Labour Court went on to state that, while the applicants, through the
fee deductions, contributed to the general activities of the Union,
they were not treated any differently from Union members as concerns
the monitoring. In order to monitor the observance of the collective
labour agreement, the work was carried out with respect to all
employees affected by the agreement, whether belonging to a trade
union or not. Noting that it could appear offensive to an unorganised
worker to have to contribute to the work, the court stated that it
was not without importance that the unorganised worker in fact
obtained something in return for the fee paid.
The
Labour Court further noted that, theoretically, the applicants could
be inclined to join a trade union other than the Union in order to
avoid the wage deduction for the monitoring fee. It found, however,
that it was not very realistic that an employee would regard the wage
deduction as a particular incentive to do so.
The
Labour Court concluded that all the above considerations indicated
that the deductions did not breach the applicants’ rights under
the Convention. As to the main issue to be determined – whether
the monitoring fee was intended as a measure to pressure them to join
the Union – the court could not find that it had any such
coercive effect. As the fee was not tantamount to forced membership
of the Union and had not influenced or forced the applicants to join
the Union, the company had been obliged to make a deduction from
their wages in accordance with the collective labour agreement.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Freedom of association
- Freedom
of association is guaranteed in the Swedish constitution. Chapter 2,
section 1 of the Instrument of Government (Regeringsformen)
provides in its relevant parts:
“In relation to the public administration, every
citizen is guaranteed:
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; ...”
Chapter
2, section 2 protects, inter alia, the negative aspect of
freedom of association. It reads:
“In relation to the public administration, every
citizen is protected against coercion to divulge an opinion in a
political, religious, cultural or other such connection. In relation
to the public administration, he is furthermore protected against
coercion to participate in a meeting for the formation of opinion or
in a demonstration or other manifestation of opinion, or to belong to
a political association, religious congregation or other association
for opinions referred to in the first sentence.”
- Section
7 of the 1976 Act on Co-Determination at Work (Lag om
medbestämmande i arbetslivet, SFS 1976:580, hereinafter “the
1976 Act”) guarantees the right of employers and employees to
form, belong to and work for labour market organisations. The right
of association is further protected by section 8, which forbids any
recourse to action against someone on the opposing side for having
exercised this right or in order not to exercise it.
B. The relationship between employers and employees
- Section
10 of the 1976 Act gives employers’ and employees’
organisations as well as individual employers a right of negotiation
in regard to matters concerning the relationship between employers
and employees. It does not provide for any right of negotiation for
the individual employees, who are obliged to exercise their powers
through the trade unions.
- Under
section 26 of the 1976 Act, a collective labour agreement is binding
not only on the employer’s and employee’s organisations
but also on their members, i.e. companies and individual workers.
Moreover, in practice, the collective agreement is also of
significance for employees who are not trade union members in that it
has a normative effect. This entails that the individual work
contracts are considered to have the same contents as the collective
agreement unless the parties to the contract have expressly agreed
otherwise.
- Under
section 27 of the 1976 Act, an employer and an employee cannot
conclude a legally valid agreement which contradicts the collective
agreement by which they are bound. This means that an agreement
contradicting the collective agreement is automatically null and
void. While contracts with less favourable conditions than the
collective agreement are normally invalid, the validity of contracts
with more favourable conditions depends on an interpretation of the
agreement in question. As the instant provision formally only
prohibits an employer from concluding contradictory contracts with
members of the trade union which is party to the collective
agreement, it is possible for the employer to conclude such contracts
with employees who are not members of the relevant trade union.
However, most collective agreements are based on the presumption that
an employer does not have a right to conclude such contracts with
non-member workers. Consequently, while the contracts in question
remain valid, the employer may be liable to pay damages to the trade
union.
C. The monitoring system
- Monitoring
of wages for hourly work is conducted in a manner determined by the
employer and the local union branch. It normally involves the
examination of documents provided by the employer and personal visits
by the union’s representatives to the employer. If a mistake is
discovered, clarifications or corrections can be made by telephone or
letter. In some cases, formal negotiations are required.
- Under
the terms of the Construction Agreement, the local union branch is
entitled to a fee as compensation for the costs entailed by the
monitoring work. The fee – 1.5% of the employee’s wages –
is deducted by the employer from the wages of each individual worker.
- According
to the applicants, a member of the Union pays about 3,500 Swedish
kronor (SEK)
per year in monitoring fees in addition to the union membership fee
of SEK 3,000. The largest competing trade union, the Syndicalist
union, does not have a monitoring system. The Union therefore has a
de facto monopoly in this field.
- The
regulation regarding the monitoring of wages was incorporated in the
1976 Construction Agreement. Previously, workers paid time-based
wages had not been subjected to deductions for monitoring fees.
According to the applicants, the purpose was that workers paid
time-based wages, as an act of solidarity with workers carrying out
piecework, should contribute to the whole inspection system. At the
material time, the majority of the workers performed piecework, the
measurement of which was costly and time-consuming. The fee for
monitoring time-based wages was thus not primarily introduced as
reimbursement for the service in question, but as a means of
supporting the measurement of piecework wages.
- Today,
approximately 80% of workers are paid time-based wages, which is
almost the opposite ratio compared to the situation in 1976. In
general, the monitoring of wages is now computerised and based on
information provided by the employer.
- According
to a statement of 24 May 2006 by Mr Lars-Göran Bromander, former
division manager at Byggettan, a review of the still existing
audit material for 1999 showed that, as a result of the monitoring
work, wages had been adjusted upwards for 648 workers, of which 250
were not Union members.
- The
activities of Byggettan, the local union branch, are divided
into two parts: branch activities (inter alia, wage
negotiations, union agitation and political work) and business
activities (i.e. the inspection work, comprised of the monitoring of
time-based wages and the measurement of piecework). Branch or
non-profit activities are to be paid for by means of union membership
fees. Revenue from the business activities, which is subject to
value-added tax, should cover the costs of such activities.
D. Figures concerning monitoring and measuring work
- The
parties have submitted various documents to the Court containing
information on the revenue and cost of the activities of the Building
Workers’ Union and the Byggettan branch. The following
information has been compiled from these documents.
1. The annual reports of Byggettan
- According
to the annual report for 1998, Byggettan had 94 permanent
employees (54 officials and 40 administrative personnel) on
31 December 1998. Before the Labour Court, the Building Workers’
Union stated that the number of persons involved in inspection work
(monitoring and measuring) during the period relevant to the present
case, March – July 1999, was the same as at the end of 1998,
and that the 1998 annual report named 21 officials who had been
occupied with this activity. However, the annual report only
mentions, in addition to the head of the relevant department, 12
officials who were dealing with such work, one of whom had been doing
so only until 26 March 1998. It thus appears that, during the
relevant period, 12-13 officials were involved in inspection work,
i.e. about 22-24% of the total number of officials. Incidentally, the
annual report for 1999 indicates that, at the end of 1999, the total
workforce of Byggettan remained the same.
- Byggettan’s
annual reports for 1997-2000 contain statements of accounts where its
business activities, i.e. the inspection work, are separated from its
branch activities. According to the statement of accounts for 1999,
Byggettan’s branch activities showed a loss of SEK 10.3
million, whereas the inspection work recorded a profit of SEK 5
million. The total revenue from the inspection work amounted to SEK
30.9 million, the operational and administrative costs of this sector
of activity were SEK 25.2 million and the write-offs of movables came
to SEK 0.7 million. Whereas it is shown, in a footnote to the
statement of accounts, that, of the revenue from the inspection work,
SEK 21.6 million derived from monitoring fees, there is no such
differentiation as regards the costs.
However,
in another footnote, information is provided on Byggettan’s
costs, which are given separately for the branch activities and the
inspection work. The total costs for wages and remunerations in 1999
amounted to SEK 25.5 million, of which SEK 12.5 million (i.e. about
49%) were attributed to the inspection work. The total amount of
pension payments was SEK 6.9 million, of which SEK 6.346 million (or
about 92%) were a burden on the latter activities. The remaining
costs, including offices, travels, administration and social
contributions, totalled SEK 28 million, of which SEK 12.7 million
(about 45%) were attributed to the inspection work.
- In
submissions by the Building Workers’ Union to the Labour Court
and by the Government in the present proceedings, it has been claimed
that the result of the inspection work has to be corrected to the
extent that a reimbursement was received from the pension fund of the
Building Workers’ Union. In the statement of accounts for 1999,
a reimbursement of SEK 6.360 million was recorded for the inspection
work. As this reimbursement in effect reduced the costs, the amount
has to be deducted from the recorded profit of SEK 5 million in order
to arrive at the real financial result of the inspection work. Thus,
in the Government’s view, the pension payments should be
recorded as a cost, whereas the pension fund reimbursement should not
be considered as revenue. Consequently, in 1999, that sector of
activity was actually run at a loss of more than SEK 1.3 million.
The
applicants, however, disagree with the above calculation. They have
stated that, throughout the years, the branches of the Building
Workers’ Union have made contributions to the pension fund,
whose accumulated assets are used to honour the Union’s pension
commitments towards its retired personnel. Thus, when making pension
payments, the Union branches are not the actual payer but are making
the payments on behalf of the pension fund, presumably because the
fund does not have an administrative division of its own to handle
such payments. Accordingly, the applicants claim that, when
determining the actual annual result of the inspection work, the
pension transactions should only be taken into account to the extent
that the fund reimbursements differ from the pension payments. In
1999, the reimbursement received by Byggettan exceeded the
pension payments by as little as SEK 14,000. The financial result of
that year should thus be reduced by only that amount and the recorded
profit of SEK 5 million consequently remains virtually unchanged.
In
the statements of accounts of the Building Workers Union’s
Gothenburg branch for the years 1997-2000, pension fund
reimbursements have been recorded as revenue and pension payments as
costs. Consequently, only the differences between reimbursements and
payments have affected the annual results.
- The
statements of accounts in the annual reports of Byggettan for
1997, 1998 and 2000 contain figures which give a picture similar to
1999. In 1997, the revenue from the inspection work was SEK 27.9
million (of which the monitoring fees came to SEK 17.3 million) and
the recorded profit of that sector of activity amounted to SEK 3.4
million. Byggettan received a pension fund reimbursement of
more than SEK 8.3 million. If the result is corrected with this
amount, in the manner claimed by the Government, the profit would
turn into a loss of SEK 4.9 million. However, the reimbursement
exceeded the pension payments by only SEK 1.7 million. If pension
transactions were altogether excluded from the calculation, as
effectively suggested by the applicants, the profit would be halved
and amount to SEK 1.7 million. 45% of the wage costs, 92% of the
pension payments and 42% of the other costs of that year were
attributed to the inspection work.
- In
1998, the inspection work revenue was SEK 28.8 million (of which the
monitoring fees amounted to SEK 19.8 million) and the recorded profit
was SEK 3.5 million. A pension fund reimbursement of SEK 6.8 million
was received which, if allowed to correct the result in full, would
change the latter into a loss of SEK 3.3 million. However, as the
reimbursement exceeded the pension payments by only SEK 14,000, the
profit would remain at SEK 3.5 million if pension transactions were
not taken into account. 46% of the wage costs, 93% of the pension
payments and 44% of the other costs were attributed to the inspection
work.
- In
2000, the inspection work revenue was SEK 37 million (of which the
monitoring fees came to SEK 27.2 million) and the recorded profit was
SEK 8.5 million. A pension fund reimbursement of SEK 6.4 million was
received which, if correcting the result, would reduce the profit to
SEK 2.1 million. However, as the reimbursement exceeded the pension
payments by only SEK 315,000, the profit would be SEK 8.2 million if
pension transactions were not taken into account. 53% of the wage
costs, 93% of the pension payments and 51% of the other costs were
attributed to the inspection work.
2. The annual budgets of Byggettan
- The
budgets for 1998 and 2000-2003 have been made available to the Court
by the parties.
- In
its budget for 1998, Byggettan estimated that the monitoring
work would cost SEK 3.9 million and that the direct costs of the
inspection unit (dealing with both monitoring of time-based wages and
measuring of piecework) would amount to SEK 12 million. The projected
revenue from the inspection work was SEK 29 million. It thus appears
that the costs of the monitoring work accounted for about one-third
of the inspection costs. However, as can be seen from the
above-mentioned figures presented in the annual report for 1998 (see
paragraph 33 above), the monitoring fees’ share of the
inspection revenue came to more than two-thirds (SEK 19.8 million out
of a recorded total of SEK 28.8 million). That share was
approximately the same in 1997, 1999 and 2000.
- The
budgets for 2000-2003 give the estimated total costs of the various
units of Byggettan. In 2000, the total projected costs of all
sectors of activity were SEK 69.4 million. The monitoring unit had a
budget of SEK 6.1. million and the wages and contracts unit (the
largest unit of Byggettan, which, according to the description
in the budget, was dealing with, inter alia, the measurement
of piecework, wage negotiations and matters concerning workers’
co-determination, the work environment and safety) had a budget of
SEK 18.1 million. It is not possible to discern, from the material
available to the Court, how much of the latter unit’s budgeted
costs related to the measuring work. Furthermore, as an unknown
portion of Byggettan’s general administrative costs
would presumably have to be attributed to monitoring and measuring,
the total budgeted costs for the two types of inspection work cannot
be established.
However,
the costs of the inspection work according to the official results
for 2000 appear to be considerably higher than the budgeted costs for
that activity. Thus, the statement of accounts for that year
attributes SEK 28.5 million in operational and administrative
costs and write-offs to the inspection work, which corresponds to
about 52% of the grand total of SEK 54.8 million. If, as claimed by
the Government, an amount corresponding to that year’s pension
fund reimbursement is to be added as an actual cost, the official
costs attributed to the inspection work rise to 57% of the total
costs.
- In
the budget for 2001, the projected total costs of Byggettan
were SEK 73.5 million, while those pertaining to the monitoring unit
and the wages and contracts unit were SEK 6.3 million and 19.6
million, respectively. The 2002 budget estimated the total costs at
SEK 73.1 million. Both the monitoring unit and the new wages unit
(responsible, inter alia, for measuring work) had a budget of
SEK 7.2 million. In 2003, the budgeted total costs were SEK 77.8
million and those pertaining to the monitoring unit and the wages
unit were SEK 7.1 million and 8.6 million, respectively.
3. The financial results of inspection work performed
by all branches of the Building Workers’ Union in the years
2001-2005
- A
chart compiled by Mr Leif Hjelm, Deputy Head of Finance at the Union,
and submitted to the Court by the Government, contains the results of
the monitoring and measuring activities of all 34 branches of the
Union. According to the chart, Byggettan recorded a positive
result in four out of the five years presented and had an accumulated
profit of SEK 36.2 million during the period. If corrected with the
reimbursements received from the pension fund, the accumulated profit
would amount to SEK 21.8 million. However, the chart shows a negative
overall result for 26 of the branches. As a consequence, the
accumulated five-year result of the inspection work of all the
branches of the Union was a loss of SEK 5 million, or – if the
result is corrected with the contributions made by the branches to
the pension fund and the reimbursements received from that fund
during the period – a loss of SEK 58 million.
It
should be noted that the chart in question does not provide any
information on the actual pension payments made by the Union
branches, nor how the annual costs had been assigned between the
inspection work and the branches’ other activities. The
statements of accounts of the Gothenburg branch for the years
1997-2000 show, however, that that branch allocated the costs in much
the same way as Byggettan.
4. Statement by Mr Rolf Andersson, treasurer at
Byggettan
- In
a statement of 23 February 2005, made in regard to the present case
and submitted to the Court by the Government, Mr Rolf Andersson gave
the following information on the monitoring activities of Byggettan
in 1999. A total of about SEK 9.4 million was deducted from the wages
of workers working for employers bound by the Construction Agreement.
The total costs of the monitoring work were approximately SEK 16.4
million. A large part of the costs was financed by the employers
themselves and not by means of deductions from workers’ wages.
5. Statement by Mr Hans Tilly, president of the
Building Workers’ Union
- In
the Union’s periodical, Byggnadsarbetaren, issue no.
8/2006 (published on 18 May 2006), Mr Hans Tilly stated that the
Union had a relatively low membership fee compared to other major
trade unions because the monitoring and measuring fees bore the cost
of the organisation of negotiations.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants asserted that the levying of the monitoring fees on their
wages had amounted to a violation of their property rights. They
relied on Article 1 of Protocol No. 1, which provides:
“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.”
A. The submissions of the parties
1. The applicants
- The
applicants submitted that the situation in the present case was to be
examined under the second sentence of the first paragraph of Article
1 of Protocol No. 1, as the wage deductions involved a deprivation of
their property for a service which they had never requested and
which, as regards the greater part of the deductions, did not
correspond to any service at all. Whichever rule of Article 1 was
applicable, there had been an interference with their property rights
which lacked a legitimate aim and which, in any event, was not
proportionate to any such aim.
- As
to the proportionality of the alleged interference, the applicants
submitted, inter alia, the following. The monitoring fees
constituted covert union membership fees. That conclusion followed
already from the judgment of the Labour Court, which had stated that
there was no reason to distinguish between monitoring work and
general union activities and that the monitoring fees contributed
financially to those general activities. Through the payment of those
fees, the applicants came to support the Union’s political and
ideological programme with which they did not agree. Moreover,
the monitoring system was unique to the Building Workers’ Union
and could not be seen as an indispensable tool for the proper
functioning of the Union on the labour market. In balancing the
interests involved, the applicants’ interests thus weighed more
heavily. Further, in so far as the monitoring work generated a
surplus, a legitimate union interest was lacking altogether and a
balancing exercise was irrelevant.
- Referring
to the documents submitted to the Court, including the annual reports
and budgets of Byggettan, the applicants claimed that the
monitoring work generated a substantial annual surplus. This could be
seen already from the official results in the annual reports. The
Union’s and the Government’s claim, that the actual
results were negative as amounts corresponding to the pension fund
reimbursements had to be added to the costs for each year, was
repudiated by the applicants; only the difference between
reimbursements and actual pension payments affected the results,
which thus remained positive. The applicants also questioned the
allocation of costs made by Byggettan and other branches of
the Union; despite the fact that only a small number of employees
were involved in monitoring and measuring work – the majority
of staff being occupied with branch activities – more than 90%
of the pension payments and about half of the wage costs were
allocated to the monitoring and measuring work. It was the
applicants’ opinion that this had been done because of the fact
that the costs of wages attributed to the business activities were
tax deductible. They also pointed out that the results forecasted in
the budgets were far better than the results recorded in the annual
reports and that these “negative budget deviations”, i.e.
miscalculations, continued year after year. In their view, the only
possible conclusion was that the budgets more accurately indicated
the true profits and that the results recorded in the annual reports
were the effect of certain reallocations of costs.
The
applicants further asserted that their submissions constituted
sufficient evidence to conclude that the inspection work, in
particular the monitoring activities, generated a surplus far
exceeding the profits recorded in the annual reports of Byggettan.
In these circumstances, the Government should bear the burden of
proof for their claim that the Union’s inspection work was run
at a loss. To date, the Government had not presented adequate
information allowing a full examination of the Union’s revenue
and costs in respect of the inspection work.
- As
to the Government’s contention that all construction workers
benefited from the wage monitoring, the applicants submitted that it
was the wish of the Union that collective agreements have strong
normative effects and that there was always a risk for the Union that
its work, to a greater or lesser extent, benefited non-members. They
also maintained that unorganised workers did not receive any help
from the Union if a fault was discovered during the wage monitoring.
Moreover, while, formally, the Union was entitled to compensation
only if monitoring work actually had been carried out, it had never,
in practice, declined to receive any monitoring fees.
- The
applicants finally submitted that it was the system of collective
agreements with normative effect, regulated by law, which had made
possible the alleged violations of their rights. The Swedish State,
therefore, had had a positive obligation to protect their rights in
relation to the Union.
2. The Government
- The
Government contended that, if Article 1 of Protocol No. 1 was at all
applicable, what had occurred in the present case had to be
considered as a control of the use of property falling within the
scope of its second paragraph. They left it to the Court to decide
whether an interference giving rise to State responsibility had
occurred. They submitted, however, that the alleged interference had
been lawful. Furthermore, the wage monitoring system that followed
from the Construction Agreement, and the costs to which the
applicants were compelled to contribute, served not only the
legitimate aim of protecting the rights and freedoms of others, but
also pursued the general interest of the community, namely to uphold
the legitimacy of the Swedish approach in the area of industrial
relations.
- The
Government further maintained that the alleged interference under
Article 1 of Protocol No. 1 had been proportionate to the aim
pursued. In support of that contention they submitted, inter alia,
the following. In general, the assessment of proportionality had to
be made in the light of the importance attributed in Sweden to the
system of collective bargaining. The collective agreements had an
important normative effect and protected workers’ interests in
a general sense. In the construction business, employees who were not
members of the Union also benefited from the latter’s
negotiations with the Industries concerning, for instance, wage
levels, although they did not contribute financially to this part of
the Union’s activities, which was financed by means of
membership fees. As wage monitoring ensured that the collective
agreement was adhered to by the employers, it fulfilled an important
function in the interests of construction workers generally. There
was no difference in treatment between Union members and other
workers; Byggettan would also inform non-unionised workers and
contact their employers in case any discrepancies were found. In this
respect, the Government referred the statement by Mr Bromander,
according to which, in 1999, wages had been adjusted upwards for 250
non-unionised workers as a result of the monitoring work (paragraph
26 above). The Government asserted that, if non-unionised workers
were exempt from contributing to the wage monitoring system, it would
appear to be at the expense of the Union’s members, who would
presumably have to contribute more to help cover the costs of the
monitoring work.
- The
Government also adduced that it was an essential trade union
interest, as such, to ensure that the wage clauses of the
Construction Agreement were adhered to. The wage monitoring system
had a preventive impact in the sense that employers, being aware of
the fact that deviations from the Construction Agreement would
probably not go unnoticed, presumably would take more care in
respecting the wage levels specified by the agreement. Due to the
short duration of their employment periods and their resultant
difficulties in being informed of the applicable collective
agreement, this effect was particularly vital for construction
workers. Furthermore, Byggettan was only entitled to
compensation if monitoring work had actually been carried out and
only the actual costs of monitoring were to be covered by the fees.
According to the treasurer at Byggettan, during the relevant
year 1999, the overall costs for wage monitoring had exceeded the
total amount which had been deducted from the wages of workers
employed by an employer bound by the Construction Agreement. This
indicated that the applicants had not contributed to Byggettan’s
branch activities by means of the deductions made to their wages.
Further, in the Government’s opinion, the applicants had
provided no direct evidence to establish that any such contribution
had occurred. Moreover, according to the Union, its business
activities, including wage monitoring, were strictly separated,
financially, from the branch activities. Thus, the monitoring fees
provided financial support only to the monitoring work, which aimed
to verify compliance with the collective agreement’s provisions
on wages. The fees should therefore be viewed as payment for a
service which – as a consequence of the legal framework
governing the labour market in Sweden – was provided by the
Union rather than the State. The Government further pointed out that
the amounts deducted from the applicants’ wages were relatively
limited.
- With
respect to the results of the wage monitoring activities, the
Government submitted that the use of a standard fee of 1.5% of the
wages necessarily meant that the precise outcome of the monitoring
work might vary between different years and between the local
branches of the Union. However, according to the information provided
to the Government by the Union, the majority of local branches showed
neither significant profits nor losses from their monitoring work. As
regards the documents made available to the Court, the Union’s
position was that the profits from the monitoring and measuring
activities of Byggettan, as shown in its annual reports for
the years 1997-2000, did not reflect the real results, as money from
the Union’s pension fund had been used to cover part of the
costs. Instead, when the effects of these pension fund reimbursements
had been taken into account, the monitoring and measuring activities
of Byggettan showed a loss in the first three years and a
profit for the year 2000 of only SEK 2.1 million, rather than the
profit of SEK 8.5 million recorded in the annual report. Furthermore,
the chart compiled by the Union for the years 2001-2005 showed that,
whether or not pension fund reimbursements were taken into account,
the accumulated result of the monitoring and measuring activities of
all the Union branches was a negative one. In this connection, the
Government asserted that a fair examination required that not only
the situation of one local branch was taken into account. The
Government maintained, however, that they were entirely depending on
information provided by the Union and were not in a position to
assess whether the Union’s analysis of the matter was
economically correct.
B. The Court’s assessment
1. Whether there has been an interference
- The
Court notes that, in accordance with the rules of the Construction
Agreement, deductions of 1.5% on the applicants’ wages were
made to cover the monitoring fee. The Court finds that these
deductions deprived the applicants of their possessions within the
meaning of the second sentence of the first paragraph of Article 1 of
Protocol No. 1.
2. Purpose and lawfulness of the interference
- It
must therefore be determined whether this deprivation pursued a
legitimate aim “in the public interest” and was “subject
to the conditions provided for by law” within the meaning of
the second rule of Article 1 of Protocol No. 1.
- The
Court reiterates that a deprivation of property effected in pursuance
of legitimate social, economic or other policies may be “in the
public interest” even if the community at large derives no
direct benefit from that deprivation (see James and Others v. the
United Kingdom, judgment of 21 February 1986, Series A no. 98,
pp. 31-32, § 45). Having regard to the wider context of the
case, namely the fact that, in Sweden, it has been left to the
parties on the labour market to regulate wages and various other work
conditions through collective agreements and that there is no State
authority overseeing compliance with these agreements, the Court
accepts that the levying on workers’ wages of a fee to cover
the costs of the Union’s inspection work, as such, can be
considered to pursue a legitimate aim “in the public interest”,
as the inspection work aims to protect the interests of construction
workers generally. It further notes that it is not in dispute between
the parties of the present case that this scheme was in accordance
with Swedish law.
3. Proportionality of the interference
- An
interference with the peaceful enjoyment of possessions must strike a
fair balance between the demands of the general interests of the
community and the requirements of the protection of the individual’s
fundamental rights. The concern to achieve this balance is reflected
in the structure of Article 1 of Protocol No. 1 as a whole. The
requisite balance will not be found if the person concerned has had
to bear an individual and excessive burden (see, among other
authorities, Sporrong and Lönnroth v. Sweden, judgment of
23 September 1982, Series A no. 52, pp. 26 and 28, §§ 69
and 73). In other words, there must be a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised (see, for instance, James and Others, cited above, p.
34, § 50).
- As
to the facts of the present case, the Court notes that approximately
30 euros were deducted monthly from the applicants’ wages
during their five-month employment with the company in order to
reimburse Byggettan for its costs relating to the monitoring
of building workers’ wages in the Stockholm region. The
applicants have claimed that they, as unorganised workers, would not
have received any help from Byggettan if faults had been
discovered in the course of the wage monitoring. The Court accepts,
however, the information given by Mr Bromander in his statement
of 24 May 2006 that, in 1999, 250 unorganised workers had had their
wages adjusted upwards as a result of Byggettan’s
monitoring activities (paragraph 26 above). As concluded by the
Labour Court in its judgment of 7 March 2001 (paragraph 15 above), it
thus appears that the applicants received a certain service in return
for the fee paid.
- The
Court further notes that the Construction Agreement stipulates that
the fees which construction workers are compelled to pay for the
monitoring of time-based wages and measuring of piecework and result
work are to cover the costs pertaining to those inspection
activities. The fees should not be used as a contribution towards the
Union’s branch activities. Moreover, the business activities,
i.e. the inspection work, of Byggettan and other branches of
the Union, are accounted for separately from the branch activities.
- Nevertheless,
the Court has taken into consideration the financial information
submitted in regard to the activities carried out by Byggettan.
It notes that, whereas less than one-fourth of its officials appear
to have been involved in inspection work, the statement of accounts
for the years 1997-2000, included in the annual reports, attributed
more than 90% of the pension payments and almost half of the costs
for wages, remunerations and other expenses to the inspection work.
The Government have not commented on this fact and the annual reports
of Byggettan do not provide any explanation for the allocation
of costs between its business and branch activities. Whereas no
information is available to the Court as to the allocation of costs
for the Union as a whole, the statement of accounts of the Gothenburg
branch for the same period show that it allocated the costs in the
same manner as Byggettan. Noting that the matter at issue in
the present case is the fees imposed for the monitoring of time-based
wages, the Court observes that these statements of accounts do not
differentiate between the costs of the monitoring work and those
pertaining to the measuring activities.
The
Court further notes that the annual reports of Byggettan and
the Gothenburg branch for 1997-2000 all recorded profits from the
inspection work, despite the rather high costs attributed to that
sector of activity. It is true that the results in several of these
years would be negative if, as claimed by the Union, the amounts
reimbursed by the pension fund would be added to the costs of the
inspection work. The Court, however, accepts the applicants’
view that, in order to arrive at correct annual results, the
reimbursements should only be taken into account to the extent that
they exceeded the actual pension payments made by the Union branches.
The recorded profits remain largely unchanged if this excess is taken
into account.
- In
estimating the financial results of the inspection work, the budgets
of Byggettan, naturally, provide less reliable information
than the annual reports. This is even more so as it is not entirely
clear which units of Byggettan were involved, directly or
indirectly, in the monitoring and measuring activities. Nevertheless,
even a very careful analysis would appear to show that the budgeted
costs of the inspection work were considerably lower than the costs
attributed to these activities in the annual reports. No explanation
has been forthcoming from the Government, or the Union, as to the
difference between these figures or to the fact that the difference
remained year after year.
- However,
the Government have presented a chart compiled by the Union for the
years 2001-2005, which indicates an accumulated loss of SEK 5
million for the inspection work of all the branches of the Union
taken together. Still, as the chart does not specify the revenue and
costs of the various branches or the allocation of costs between the
business and branch activities, it does not provide a basis for an
analysis of the financial results of the inspection work in those
years.
- The
Court considers that, although the above-mentioned documents give
certain indications, it cannot draw any completely reliable
conclusion from the available information as to whether profits have
been made from the monitoring activities of Byggettan or the
inspection work carried out by the Union branches as a whole.
Moreover, it cannot be ascertained whether a possible surplus
generated by the inspection work has been used to cover part of the
costs relating to the Union’s branch activities, i.e., inter
alia, wage negotiations, union agitation and political work. It
notes, however, the statement made by the Union president, Mr Tilly,
that the monitoring and measuring fees carry the costs of the
negotiation organisation (paragraph 41 above).
- Even
so, the Court finds that the absence of full information enabling a
reliable examination of the results of the Union’s inspection
work and the actual use of the money received for that work raises an
issue under Article 1 of Protocol No. 1. As has been noted above, the
monitoring fees deducted from the applicants’ wages constituted
payment for a service provided by Byggettan. In accordance
with the Construction Agreement, only the actual cost of monitoring
was to be covered by the fees. In these circumstances, the applicants
were entitled to information which was sufficiently exhaustive for
them to verify that the fees corresponded to the actual cost of the
inspection work and that the amounts paid were also not used for
other purposes. This was even more important as they had to pay the
fees against their will to an organisation with a political agenda
which they did not support. However, neither the facts and figures
presented in the annual reports and budgets of Byggettan,
nor those contained in the submissions of the Union and the
Government in the domestic and the present proceedings, can be
considered to have been sufficient for that purpose.
- Moreover,
while the respondent State has to be given a wide margin of
appreciation in the organisation of its labour market, a system
which, as in the present case, in reality delegates the power to
legislate, or regulate, important labour issues to independent
organisations acting on that market requires that these organisations
are held accountable for their activities. This requirement was
particularly significant in the present case, where the relevant
labour market organisations had concluded a collective agreement
whose effects also extended to unorganised workers, obliging them to
contribute financially to a particular activity carried out by a
trade union. In these circumstances, the Court finds that the State
had a positive obligation to protect the applicants’ interests.
- In
conclusion, the Court considers that the Union’s wage
monitoring activities, as applied in the present case in the context
of the Swedish system of collective bargaining, lacked the necessary
transparency. Thus, even having regard to the limited amounts of
money involved for the applicants, it was not proportionate to “the
public interest” in the case to make deductions to their wages
without giving them a proper opportunity to check how that money was
spent.
There
has accordingly been a breach of Article 1 of Protocol No. 1 to the
Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 9, 10, 11 AND 14 OF THE
CONVENTION
- The
applicants also complained that the levying of the monitoring fees on
their wages had violated their right to negative freedom of
association under Article 11 of the Convention, since the fees had
been tantamount to forced membership of the Union and had contributed
to the general union activities. Moreover, under that Article, read
in conjunction with Articles 9 and 10 of the Convention, they claimed
that, through the payment of the fees, they had come to support the
Union’s political and ideological programme. Finally, under
Article 14 of the Convention in conjunction with Article 11 and
Article 1 of Protocol No. 1, they asserted that they had been
discriminated against in relation to members of the Union as well as
members of other trade unions.
- The
Government contested the applicants’ allegations.
- In
the light of its findings with regard to Article 1 of Protocol No. 1
(paragraph 64 above), the Court does not consider that a separate
examination of the merits of the case under Articles 9, 10, 11 and 14
is necessary.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants sought EUR 7,500 each for non-pecuniary damage, on account
of anger, frustration and emotional distress caused by the events of
the case.
- The
Government did not contest that, should the Court conclude that a
violation of the Convention had occurred, the applicants might be
entitled to compensation for non-pecuniary damage. In view of the
limited financial impact that the monitoring scheme had had upon the
applicants, the Government found, however, their claims to be
somewhat excessive. They left it to the Court to determine an award.
- The
Court finds it appropriate to make an award for non-pecuniary damage.
Ruling on an equitable basis, it awards each of the five applicants
EUR 5,000 under that head.
B. Costs and expenses
- The
applicants claimed a total of SEK 1,012,500 (approximately EUR
112,000) in legal fees for the proceedings before the Court. This
amount corresponded to 385 hours of work for the applicants’
counsel Mr Bratt and Mr Södergren, and 65 hours of work for
Mr Herrlin, all at an hourly rate of SEK 2,250, inclusive of
value-added tax (VAT). They further claimed SEK 20,000 for an expert
opinion given by Mr Eskil Qwerin, an accountant. Finally, they
claimed SEK 28,513.50 for travel and accommodation expenses incurred
in attending the Court’s hearing in the case.
- The
Government did not question the number of hours worked by the
applicants’ counsel. With regard to the work of Mr Herrlin,
they pointed out that he is the head of the lawyers’ section of
the Industries, the sixth applicant in the case whose complaints had
been declared inadmissible by the Court’s decision of 28 March
2006. They could therefore accept the claim for compensation for his
work only in so far as it had been undertaken to assist Mr Bratt and
Mr Södergren in representing the five remaining applicants.
Bearing in mind that the hourly rate applied within the Swedish
legal-aid system was SEK 1,286, including VAT, the Government further
considered that the hourly rate applied for the legal work was unduly
high. Instead, they could accept an hourly rate of SEK 1,800,
including VAT. They also found the sum concerning the expert opinion
to be excessive, considering no more than half that sum to be
appropriate. The Government, however, accepted the amount claimed for
expenses incurred in connection with the Court’s hearing.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court finds the
views expressed by the Government to be reasonable. It awards the
applicants, jointly, compensation of EUR 77,000 (corresponding to 385
hours at an hourly rate of SEK 1,800) for the work carried out by Mr
Bratt and Mr Södergren, EUR 6,500 (corresponding to half
the hours claimed at an hourly rate of SEK 1,800) for the work
undertaken by Mr Herrlin, and EUR 1,100 for the expert opinion given
by Mr Qwerin. The expenses incurred in connection with the Court’s
hearing, approximately EUR 3,200, are to be compensated in full. In
total, therefore, the Court awards the applicants, by way of costs
and expenses, EUR 87,800.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that it is unnecessary to examine the
merits of the remainder of the applicants’ complaints;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Swedish kronor at the rate applicable at the date of
settlement:
(i) EUR
5,000 (five thousand euros) to each of the five applicants in respect
of non-pecuniary damage;
(ii) EUR
87,800 (eighty-seven thousand eight hundred euros) to the applicants
jointly in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé A.B.
Baka
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Ms
Fura-Sandström is annexed to this judgment.
A.B.
B.
S. D.
CONCURRING OPINION OF JUDGE FURA-SANDSTRÖM
After
some hesitation I voted with the majority in finding a violation of
Article 1 of Protocol No. 1 although I would have preferred to have
the case examined under Article 11 of the Convention for the
following reasons:
Having
reached the conclusion that the right to negative freedom of
association under the Convention is weaker than the positive right,
the Labour Court in its judgment of 7 March 2001 put the emphasis on
the undisputed fact that the applicants were never under pressure or
forced to join the Union. Hence there was no violation of their
negative freedom of association, which under domestic law is
exclusively based on the Convention. Referring to the European
Court’s case-law, the Labour Court considered that only the
core of the negative freedom of association was protected under
Article 11, meaning that a person must have been subjected to a
certain measure of force or at least strong pressure to join an
organisation in order to give rise to a violation of that Article
(see paragraph 15 of the judgment). Assuming that the Court’s
case-law on the negative freedom of association can be interpreted in
this way, it might be fair to describe it as somewhat undeveloped and
conservative to date. Perhaps this case was not the appropriate one
for developing the case-law further to include other situations than
those where actual force or strong pressure had been exercised.
The
applicants claim, among other things, that they cannot see where
their money has gone. The lack of transparency of the accounts and
other reports from Byggettan leads them to suspect that the
fees levied on their wages might have been contributing to the
general activities of “an organisation with a political
agenda which they did not support” (see paragraph 62 of the
judgment, my emphasis), which they find contrary to their rights
under Article 11. Having regard to the financial information made
available concerning the Union’s monitoring work, I find that
the applicants’ suspicions in this respect were justified.
Using the same reasoning as the national court, I find that the
complaint falls within the ambit of Article 11 and, contrary to the
national court, that there was a violation, since the Government
failed in their positive obligation to protect the interests of the
applicants (see paragraph 63 of the judgment). Taking this approach
it would not have been necessary to examine the complaint under
Article 1 of Protocol No. 1, which in my opinion would have been a
more satisfactory line of reasoning, especially in view of the
relatively small sum levied, in all about 160 euros per applicant.
