AB Kurt Kellermann v Sweden (decision), 1 July 2003 [ECtHR]

Case no 41579/98

The Court considers that it is not decisive whether the applicant expressed a clear aversion to participate in the Swedish collective-bargaining system as such; it accepts that the applicant wished to retain the possibility of negotiating the terms of employment directly with its employees and that it, to this end, opposed to joining an employers’ association or signing the collective agreement proposed by the Industrial Union. Facing industrial action, the applicant was placed under considerable pressure to meet the union’s demand that it accept one of these alternatives. In these circumstances, the Court finds that, to a degree, the applicant’s enjoyment of its freedom of association was affected and that, thus, Article 11 is applicable in the present case (see Gustafsson v. Sweden, judgment cited above, p. 652, § 44). (...)

The Court reiterates that Article 11 of the Convention encompasses 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, and that State responsibility may be engaged by a failure to secure the effective enjoyment of those rights. It should be recalled, however, that, 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 (see Gustafsson v. Sweden, judgment cited above, p. 652-53, § 45).

In the present case, the Court notes that the applicant was not compelled by the union action to join an employers’ association, as it could have avoided that action by accepting to sign the collective agreement, the so-called IG agreement, proposed by the union. It appears that the terms and conditions of that agreement could be adapted to some extent to meet the special requirements of the applicant company. Furthermore, there is no evidence that the applicant was, in effect, compelled to opt for membership of an employers’ association because of economic disadvantages attached to the IG agreement. The Court reiterates that Article 11 of the Convention does not guarantee a right not to enter into a collective agreement unless the measures taken with the aim of reaching such an agreement would impinge on freedom of association. Compulsion which, as in the present case, does not significantly affect the enjoyment of that freedom, even if it causes economic damage, cannot give rise to any positive obligation of the State under Article 11.

The Court has further regard to the judgment of the Labour Court of 11 February 1998, according to which the collective agreement proposed by the union contained a clause on compensation for overtime work which had no parallel in the terms of employment prevailing at the applicant company. There is no evidence that the Labour Court did not make an overall assessment of the terms of employment applied at the company and those stipulated by the IG agreement. It is true that the applicant claimed, in the later proceedings before the Labour Court, that the IG agreement’s rules on overtime work had been introduced at the company. However, the union did not confirm the applicant’s assertion. As the parties subsequently reached a settlement, the Labour Court had no reason to examine this case on the merits but struck it out of its list of cases on 30 April 1998. 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 of the Convention (see Gustafsson v. Sweden, judgment cited above, p. 655-56, §§ 52-53).

Moreover, the fact that the Industrial Union, in accordance with the Labour Court’s established case-law, was not asked to provide security for damage possibly inflicted on the applicant cannot be considered to have had any bearing on the applicant’s rights under Article 11. In view of the above, and 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 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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