DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF

Application No. 12860/87

by Kjeld ANDERSEN

against Denmark

The European Commission of Human Rights sitting in private on 3 May 1988, the following members being present :

MM. J.A. FROWEIN, Acting President

C.A. NORGAARD

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs; G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs.  J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 April 1987 by Kjeld Andersen against Denmark and registered on 13 April 1987 under file No. 12860/87;

Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission:

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a Danish citizen, born in 1944. He lives in Copenhagen. Before the Commission he is represented by his lawyer, Mr. Henrik Christrup, of the law firm Gorrisen & Partners, Copenhagen, Denmark.

I. Particular facts of the case

Until 23 May 1984 the applicant was employed as a bus driver, under usual labour contract conditions, by the Traffic Company of the Metropolitan Area (Hovedstadsomradets Trafikselskab (HT)) which is under the authority of the Metropolitan Council (Hovedstadsradet), a public authority. The HT services four districts in and around Copenhagen and has approximately 4,800 employees of whom approximately 3,700 are chauffeurs. The chauffeurs of District 1 are organised under the Traffic Employers Trade Union (Trafikfunktonaerernes Fagforening (TF)) which is a sub-division of the Danish Municipal Workers Union (Dansk Kommunalarbejder Forbund (DKA)) while the drivers of the remaining districts are organised in the The Danish Trade Union for Unskilled Workers (Specialarbejderforbundet I Danmark (SID)).

On 30 October 1983 a bus driver was transferred from District 1 to District 2. He was accordingly requested to leave the TF in order to become a member of the SID. He realised, however, that he was not obliged to do so and thus refused, his main reason for the being that the SID contributed economically to the Social Democratic Party, the political views of which he did not share.

This situation led to certain controversies among the chauffeurs of the district in question and in March 1984 a number of spontaneous strikes took place in this district as well as in other districts aimed at making the above bus driver change his mind and join the SID.

On 16 April 1984, however, other chauffeurs decided to withdraw from the SID. This triggered off new strikes, the legality of which was brought before the Labour Court (Arbejdsretten). At a preparatory meeting held immediately the SID and the DKA admitted that the strikes were illegal and promised to order their members back to work. Nevertheless the HT decided on the same day to exempt the above bus driver from duty until further notice. Subsequently all strikes were called off and the chauffeurs resumed work.

The following week, however, more chauffeurs withdrew from the SID and during the month of May 1984 the situation created thereby led to a number of demonstrations and strikes aimed at forcing the chauffeurs to join the SID again or at forcing the Metropolitan Council to dismiss the bus drivers who had left the SID.

The demonstrations and strikes elevated the case to one of national concern and on national television the Danish Prime Minister declared that it would be a “crystal clear” violation of Danish legislation if the Metropolitan Council would dismiss the chauffeurs. Nevertheless, on 22 and 23 May 1984, the strikes and blockades reached their peak, including inter alia hospitals, post offices, garbage collections, newspapers and the national television networks. Eventually on the night of the 23 May 1984 the Metropolitan Council decided to give in and dismissed eight bus drivers, among them the applicant, from their jobs as chauffeurs at the HT. the dismissals received by the chauffeurs read as follows:

“In the light of the conflict which had arisen concerning

your person and which led to a number of strikes in the

bus service in the Metropolitan area since 3 April 1984

HT will have to dismiss you from your job as chauffeur in

the Traffic Company of the Metropolitan Area with the usual

notice until the end of September 1984, in order to secure a

normal bus service.”

The bus drivers received their dismissals on 24 May 1984. Within two days all strikes were called off.

By letter of 1 June 1984 from the Ministry of the Interior (Indenrigsministeriet) the Minister informed the Metropolitan Council inter alia as follows:

“It is therefore with great regrets that I note that the

Metropolitan Council, which is a public authority, has taken

a decision which is clearly in violation of the applicable

legislation, in particular as this legislation aims at

protecting the individual citizen.

Since the Metropolitan Council’s decision of dismissal has

been communicated to the persons concerned a question of

annulments in accordance with the Act on Municipal

Administration (Den kommunale Styrelseslov) cannot be taken

into consideration. However, in the opinion of the

Government there is a considerable public interest in

obtaining an authoritative decision stating that the

Metropolitan Council’s decision of dismissing the chauffeurs

was a clearly illegal decision which could not in the

present case be characterised as taken as an emergency

measure (nodret).

I have, therefore, requested the Solicitor General

(Kammeradvokaten) to institute proceedings against the

Metropolitan Council in order to establish through the courts

that the decision of dismissal is null and void and that the

eight chauffeurs therefore remain employed.”

 

 Proceedings against the Metropolitan Council were instituted by the Solicitor General in the High Court (Landsretten). However, these proceedings were adjourned due to the fact that the dismissed bus drivers also instituted proceedings in the High Court against the Metropolitan Council as well as against the SID. The maintained that the dismissals were in violation of the Danish Constitution and other applicable domestic legislation, in particular Act No. 285 of 9 June 1982 concerning Protection against Dismissals because of Trade Union Relations (Lov nr. 285 af 9 juni 1982 om beskyttelse mod afskedigelse pa grund af foreningsforhold). They also referred to Article 11 of the European Convention on Human Rights.

The plaintiffs argued that they did not want to be members of the SID, for which reason they had either refused to become members or resigned and hence joined the Free Trade Union of Denmark (Danmarks Frie Fagforening). It was for this reason the Metropolitan Council had dismissed them. The plaintiffs claimed that the dismissals should be regarded as null and void with the result that they should be considered still employed by the Metropolitan Council. In the alternative they claimed that they should receive compensation.

The Ministry of the Interior applied for and was granted leave to join the proceedings as a co-plaintiff (biintervenient) supporting the dismissed bus drivers’ principal plea.

The High Court pronounced judgment in the case on 17 May 1985. In its judgment the High Court stated as follows:

“After an evaluation of the evidence submitted the Court

finds that the Metropolitan Council’s decision to dismiss

the plaintiffs on 23 May 1984 was based on the Council’s

legal obligation to secure the bus service in the

Metropolitan area. The plaintiffs cannot be considered as

having proved that the Metropolitan Council pursued or aimed at

pursuing an illegal purpose by dismissing them due to their

trade union relations even if these problems caused a

stand-still of the bus service in the area as well as

disturbances inter alia in other places of work during the

time up to the dismissals.

On the other hand the Court does not find it proven by the

Metropolitan Council that the situation at the time of the

dismissals was of such a character that it could give

grounds for a dismissal of the plaintiffs. The dismissals

must therefore be considered as being effected on an

insufficient basis and accordingly as being unjustified.

For these reasons and in the circumstances of the present

case the Court cannot find for the plaintiffs’ principal

plea that they have maintained their positions in spite of

the dismissals, but it considers that the Metropolitan Council

is under an obligations to pay damages to the plaintiffs for

economic losses and inconveniences which the dismissals have

caused.”

The amounts were determined on an equitable basis according to age, previous salaries and duration of employment with the HT and varied from 75,000 Danish crowns to 175,000 Danish crowns. The applicant received 100, 000 Danish crowns. The SID on the other hand was not found liable to pay damages to the plaintiffs.

The applicant and the other bus drivers appealed against this judgment to the Supreme Court (Hojesteret) where they repeated their claims submitted to the High Court. The Ministry of the Interior also joined the proceedings as a co(plaintiff before the Supreme Court.

In its judgment of 24 October 1986 the Supreme Court stated as follows:

“The Articles of the Constitution which the appellants have

invoked do not give any basis upon which it can be found

that the dismissals are null and void nor can such a claim

be based on other rules of a constitutional character.

The invoked provision contained in Article 11 of the

European Convention of Human Rights cannot be used directly

but the dismissals must be considered according to Act No.

285 of 9 June 1982 concerning the Protection against Dismissals

because of Trade Union Relations which was adopted in order

to fulfil Denmark’s obligations under Article 11 of the

Convention.

The dismissals are contrary to this Act’s Section 2 para. 1

and contrary to the fundamental concept of equality in

public administrative law which has been used earlier cf.

Supreme Court judgment of 13 June 1978 (U1978.626).

According to Section 4 the employer must pay damages to an

employee who is dismissed contrary to the law but the Act

does not give the employee a right to be re-employed.

Accordingly the Act cannot constitute the basis for the

appellants’ claim that the dismissals should be considered

null and void and that they are still employed as bus

drivers in the Traffic Company of the Metropolitan area.

Neither can the dismissals be considered null and void on

any other basis.

Since it is without relevance for the question of compensation

or damages whether there was an emergency situation (nodret),

the Court has not found any reason to consider this question.

The amounts awarded to the appellants by the High Court are

found to be reasonable.”

The Supreme Court upheld the judgment of the High Court insofar as it concerned the SID.

II Relevant domestic legislation

The Act No. 285 of 9 June 1982 concerning Protection against Dismissals because of Trade Union Relations contains the following provisions.

Section 1.

Para. 1: An employer may not dismiss an employee because he is a member of an association or a specific association.

Section 2.

Para. 1: The employer may not dismiss an employee because he is not a member of an association or a specific association.

Para. 2: Para. 1 is not applicable if the employee, when employed, knew that the employer made membership of an association or of a specific association a condition for employment in the business.

Para. 3: Para. 1 is furthermore not applicable when the employee, who is a member of an association, subsequent to the employment is informed that membership is a condition for continued employment in the business.

Section 3.

Para. 1: Sections 1 and 2 of the Act do not apply to employees who are employed by employers whose business specifically aims at furthering a political, ideological, religious or cultural purpose and the membership of the person concerned must be considered of importance for the business.

Section 4.

Para. 1: If an employee is dismissed contrary to the provisions of this Act the employer must pay damages.

Para. 2: Damages according to para. 1, which cannot exceed 78 weeks salary, are awarded having regard to the duration of the employee’s employment and the other circumstances of the case.

COMPLAINTS

The applicant invokes Articles 11, 13 and 14 of the Convention. He maintains that he can be considered a victim under Article 25 of the Convention as he has neither been reinstated in his previous job, nor obtained adequate compensation.

With regard to Article 11 the applicant has submitted that this provision has been violated due to the fact he was dismissed from his job as a bus driver with the Traffic Company of the Metropolitan Area merely because he did not wish to remain a member of the SID but instead joined the Free Trade Union of Denmark.

Under Article 13 the applicant complains that he had no effective remedy before a national authority, firstly, because he was denied reinstatement in his previous job and secondly because the compensation awarded to him was too small and inadequate.

Finally, the applicant invokes Article 14 in conjunction with Article 11 of the Convention. He maintains that he has not enjoyed the rights and freedoms set out in Article 11 of the Convention due to his political opinions.

THE LAW

The applicant has complained of the fact that he was dismissed from his job as a bus driver with the Traffic Company of the Metropolitan Area. He maintains that his dismissal was effected merely due to his refusal to join a certain trade union and he alleges that this amounts to a violation of Article 11 of the Convention which reads:

“1. Everybody has the right to freedom of peaceful assembly and

to freedom of association with others, including the right to

form and join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are necessary

in a democratic society in the interests of national security or

public safety, for the prevention of disorder or crime, for the

protection of health or morals or for the protection of the

rights and freedoms of others. This Article shall not prevent

the imposition of lawful restrictions on the exercise of these

rights by members of the armed forces, of the police or of the

administration of the State.”

However, it is clear from Article 25 para. 1 of the Convention that the Commission can only receive an application from a person, a non-governmental organisation or a group of individuals if such person, non-governmental organisation or group of individuals can claim to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.

In the present case the applicant maintains that he is a victim of a breach of Article 11 of the Convention as he was not reinstated in his previous job or in the alternative since he did not get adequate compensation.

When considering the victim question the Commission recalls that under Article 26 of the Convention it may only deal with an application when all domestic remedies have been exhausted according to the generally recognised rules of international law. Under this rule an applicant is obliged to make use of remedies likely to be effective and adequate to remedy the matters of which he complains. Where an applicant makes use of such remedies and thereby obtains adequate redress at the domestic level for the alleged violation of the Convention he cannot claim to be a victim of a violation (cf. for example No. 9320/81, Dec. 15.3.84, D.R. 36, p. 24, No. 10259/83, Dec. 10.12.84, D.R. 40, p. 170 and Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30, para. 66).

In its examination of this preliminary issue of admissibility the Commission has therefore considered whether the compensation awarded to the applicant by the courts had the effect to remedy the alleged violations.

The applicant argues that only reinstatement would be an effective remedy. In this respect the Commission first observes that under Article 1 of the Convention the High Contracting Parties are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in Section I. This includes the obligation, under Article 13, to provide individuals with an effective remedy against a violation of their rights and freedoms as set forth in the Convention. The possibility of obtaining compensation may in some circumstances constitute an adequate remedy, in particular where it is likely to be the only possible or practical means whereby redress can be given to the individual for the wrong he has suffered. In such circumstances the Commission is not called upon to address the problem whether under specific conditions a remedy, leading to restitutio in integrum may be required by the Convention.

Nevertheless, compensation may not be deemed to have rectified a violation in a situation where the State had not taken reasonable measures to comply with its obligations under the Convention. The obligation to provide a remedy does not constitute a substitute for, or an alternative to, compliance with other convention obligations. It is rather a means of redress within the domestic system for violations which occur despite measures taken to ensure compliance with the substantive provisions of the convention. Thus if conduct which contravened the Convention were to be authorised by domestic law the State could not escape from its obligations merely by paying compensation. The compensation machinery could only be seen as an adequate remedy in a situation where the authorities had taken reasonable steps to comply with their obligations under the Convention by preventing as far as possible the occurrences or repetition of the acts in question (mutatis mutandis No. 5577/72 - 5583/72, Dec. 15.12.75, D.R. 4, p. 4 (64)).

In the present case the Commission recalls that the Metropolitan Council decided in the area of employment on the basis of the applicable labour-law, i.e. Act No. 285 of 9 June 1982 concerning Protection against Dismissals because of Trade Union Relations. This Act was introduced by the respondent Government in the light of the judgment of the European Court of Human Rights in the case of Young, James and Webster (Eur. Court H.R., Young, James and Webster judgment of 13 august 1981, Series A no. 44) in order to comply with Denmark’s obligations under Article 11 of the convention. It prohibits dismissal of employees due to membership of an association and is applicable to persons employed in both private and public enterprises. It does not give an employee the right to be re-employed but secures to the employee compensation in case of dismissal in contravention of the provisions of the Act. The Commission has not found any indication of a general practice whereby public authorities would disregard the legislation introduced in Denmark by dismissing employees and merely pay compensation, a practice which in the Commission’s opinion would raise a serious issue under the Convention.

In these circumstances the Commission finds that Denmark has taken reasonable steps to comply with its obligations under Article 11 of the Convention by introducing this Act. It follows that the applicant cannot claim to be a victim of a violation of the Convention merely because he was not re-employed as a bus driver in the Traffic Company of the Metropolitan Area.

The applicant has next alleged that he may still claim to be a victim since the compensation actually received was inadequate. The Commission would not exclude that, where compensation granted under domestic law is inadequate, an issue may arise as to the question of victim and it has therefore considered whether the applicant’s right to compensation was effective in practice.

In this respect the Commission recalls that the compensation that could be awarded under Section 4 amounted to a maximum of 78 weeks salary and was to be determined having regard to the employee’s length of employment and the other circumstances of the case. In the present case the competent courts took into consideration the applicant’s age, the salary earned as well as the duration of his employment and fixed the compensation on an equitable basis in the light of these circumstances. The Commission furthermore recalls that the applicant received 100,000 Danish crowns in compensation.

The Commission finds that the applicant received a substantial sum in compensation and thereby obtained redress at the domestic level for the alleged violation of Article 11 of the Convention. Therefore he can no longer claim to be a victim of this alleged violation and it follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The applicant has also complained under Article 13 of the Convention that he had no effective remedy at his disposal. However, it follows from the Commission’s conclusion above that this complaint is also manifestly ill-founded within the meaning of article 27 para. 2 of the Convention.

3. Finally, the applicant has complained under Article 14 of the Convention that de did not enjoy the rights and freedoms set out in the convention due to his political opinions. The Commission has considered this complaint as submitted by the applicant. However, its examination has not disclosed any appearance of a violation of Article 14 of the Convention and it follows that this complaint is likewise manifestly ill-founded within the meaning of article 27 para. 2 of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission   Acting President of the Commission

(H.C. KRÜGER)     (J.A.FROWEIN)

12860/87


12860/87