PROCEDURE

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).

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).

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).

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.

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.

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.

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.

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 THE CASE

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).

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.

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 including31 December 1988, thereafter for one year at a time, unlessnotice 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 amendor supplement the [present] agreement, [the new agreement,amendments or supplements] shall automatically apply as fromthe day on which [it or they] [has or have] been [agreed upon]. ...

[The employer shall] [on his employees’ behalf] subscribeto and maintain [five different] insurance-policy schemes withLabour-Market Insurances, ... as well as other possibleinsurance-policy schemes which [the employers’ association andHRF] might later agree upon.

[The employer shall] issue employment certificates on aspecial form ... A copy shall be sent to [HRF].

[The employer shall] only employ [workers who are members]of or [have] requested membership of [HRF]. In the event ofre-employment the provisions of section 25 of the EmploymentProtection Act (lag (1982:80) om anställnings-skydd) shallapply.

[The employer shall] deduct on a monthly basis a part ofthe salary of employed members of [HRF] corresponding to theirmembership fees, and pay [the deducted part] to [HRF]. ...“

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 [therestaurant] Ihrebaden ... and the Lummelunda youth hostel.

Having regard to the forthcoming end of the [season of1987] 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 nationalagreement’) between [HRAF] and [HRF], this including the obligation to subscribe to [certain] insurance schemes(avtalsförsäkringar) with Labour-Market Insurances.

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 bysigning a ... substitute agreement ...“

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.

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.

One of the persons employed by the applicant at Ihre baden 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.

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.

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 thesympathy action as well as compensation for damage from thetrade unions concern a legal dispute between private subjects.According to Chapter 11, Article 3, of the Instrument of Government [Regeringsformen which forms part of theConstitution], such disputes may not be determined by anypublic authority other than a court of law, except by virtueof law. There is no provision in the law which authorises theGovernment to examine such disputes. The Government will not,therefore, examine these requests on the merits. The claim for damages is dismissed.“

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.

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.

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.

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.

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.

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.

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.