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Gustafsson v Sweden, 25 April 1996 [ECtHR]

Case no 15773/89

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. (...)
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

(...) 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.

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