THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32441/96

by Mümtaz KARAKURT

against Austria

The European Court of Human Rights (Third Section) sitting on 14 September 1999 as a Chamber composed of

Sir Nicolas Bratza, President
 Mr J.-P. Costa,

Mr  L. Loucaides, 
 Mrs F. Tulkens, 
 Mr W. Fuhrmann, 
 Mr K. Jungwiert, 
 Mrs H.S. Greve, Judges

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 July 1996 by Mümtaz Karakurt against Austria and registered on 30 July 1996 under file no. 32441/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is a Turkish national, born in 1962 and living in Linz.

He is represented before the Court by Mr E. Eypeltauer, a lawyer practising in Linz.

A. Particular circumstances of the case

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

On 24 May 1994 the applicant and the nine other employees of a Linz association promoting the interests of foreigners elected their works council (Betriebsrat), which, having regard to the number of employees, comprised two persons. The employees elected Mr P. and the applicant.

On 21 June 1994 Mr P. instituted proceedings with the Linz Regional Court (Landesgericht) challenging the applicant's election as member of the works council on account of his Turkish nationality.

On 15 September 1994 the Regional Court, sitting as the labour and social court (Arbeits- und Sozialgericht), deprived the applicant of his membership of the works council. It found that, as a Turkish national, the applicant was not eligible to stand for election to this council, pursuant to section 53(1)(1) of the Industrial Relations Act (Arbeits-verfassungsgesetz).

On 15 March 1995 the Linz Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal. As regards the applicant's argument that section 53(1)(1) of the Industrial Relations Act amounted to a breach of Article 11 of the Convention, the Court of Appeal considered that the restriction of the right to stand for election to a works council of an enterprise did not interfere with the right to form or to join trade unions.

On 21 December 1995 the Austrian Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law. It also rejected two procedural requests concerning a procedure before the Constitutional Court (Verfassungsgerichtshof), for the purpose of challenging part of section 53(1) of the Industrial Relations Act, and a case before the Court of Justice of the European Communities. As regards Article 11 of the Convention, the Supreme Court observed that freedom of association included the right to form and join associations of workers which, as compared to associations in general, pursued special aims and purposes, namely the promotion of working conditions. Trade unions are representative examples of such associations which are formed for a trade or profession (“überbetrieblich”). The works council, set up as a statutory organ of staff, could not be regarded as an association within the meaning of Article 11 of the Convention. In particular, the works council was not an association formed on a voluntary and private basis, but its organisation and functions were determined by law. In that respect, the Supreme Court, referring to a decision of the European Commission of Human Rights of 10 July 1991, found that it was comparable to chambers of trade. Moreover, the staff as such did not constitute an independent association within the meaning of Article 11 of the Convention, as they were not a group of persons associated on a voluntary basis. As regards the question of discrimination between foreigners, the Supreme Court considered that the accession to the European Communities had required the extension of eligibility to citizens of member States of the European Communities; and the difference in treatment between Austrian nationals and foreigners was generally justified on account of the particular relationship between nationals and their home State. Furthermore, as the stay of foreigners other than nationals of Member States of the European Communities, could be limited in time, the statutory period of their membership in a works council were subject to an administrative decision.

The decision was served on 5 February 1996.

B. Relevant domestic law

The Industrial Relations Act (Arbeitsverfassungsgesetz) concerns collective agreements (Part I) and the works constitution (Betriebsverfassung), i.e. the statutory framework for the rights of employees at work (Part II). Part III relates to the Federal Arbitration Board (Bundeseinigungamt) and arbitration committees (Schlichtungsstellen).

The representative bodies of staff (Organe der Arbeitnehmerschaft) have to promote the economic, social, health and cultural interests of the staff in a work place (section 38). The legal provisions on the works constitution and their application aim at balancing competing interests to the benefit of the staff and the work place, and these bodies are called upon to cooperate, inter alia, with the competent collective public-law bodies of staff or voluntary staff associations.

Section 40 provides that, in any work place with five or more permanent members of staff eligible to vote, representative bodies should be set up: as a rule, a general works meeting (Betriebshauptversammlung), group meetings of the workers and of the employees (Gruppenversammlungen der Arbeiter und der Angestellten), the works council electoral committee (Wahlvorstände für die Betriebsratswahl), the respective works councils of the workers and the employees, the works committee (Betriebsausschuss) and the auditor (Rechnungsprüfer).

Section 50 fixes the number of members of a works council in relation to the number of staff at the date of election: in a work place with five to nine employees, the works council consists of one person, in a work place with ten to nineteen employees, it consists of two persons, in a work place with twenty to fifty employees, it consists of three persons, and in a work place with fifty-one to one hundred employees, it consists of four persons. The number of members then increases by one per further hundred employees, and in work places with more than thousand employees by one per further four hundred employees. Men and women shall be represented in proportion to their numbers amongst the employees.

Section 51 lays down the principles of equal, direct and secret elections. All members of staff, irrespective of their nationality, are eligible to vote (section 52). As regards the eligibility to stand for election, section 53(1) requires that the member of staff is

- an Austrian national or national of a member State of the European Communities,

- 19 years old at the time of the declaration of the election,

- employed for at least six months at the work place concerned, and

- apart from the requirement of nationality, not ineligible for the national assembly.

Sections 89 to 93 concern the rights of the works council, in particular its supervisory powers regarding compliance with work conditions, the right to intervene on behalf of staff members, the right to be generally informed about matters affecting the interests of staff and the right to regular meetings with the owner of the business.

COMPLAINT

The applicant complains under Article 11 of the Convention that section 53(1) of the Industrial Relations Act, as applied by the Austrian Supreme Court in its decision of 21 December 1995, amounts to a violation of his right to freedom of association with others, including his rights to form and join trade unions for the protection of his interests. In his view, the works council, representing the staff forming part of a legal person under private law, could not be compared to a public-law institution.

THE LAW

The applicant complains that the annulment of his election to the works council amounted to a breach of his right to freedom of association with others. He invokes Article 11 § 1 of the Convention, which provides as follows:

“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

In the present case, the Linz Regional Court, as confirmed by the Linz Court of Appeal and the Supreme Court, annulled the applicant's election to the works council of a Linz association for lack of eligibility to stand for such elections under the Industrial Relations Act. In accordance with the relevant provisions of the Industrial Relations Act, in particular its sections 38 and 89 to 93, the works council is, at a work place with a minimum size of staff, one of the representative bodies promoting the interests of the staff there. Members of a works council are elected by the staff in accordance with the procedure laid down in the relevant statutory provisions.

In its Chassagnou v. France judgment, the Court held that “freedom of thought and opinion and freedom of expression, guaranteed by Articles 9 and 10 of the Convention respectively, would be of very limited scope if they were not accompanied by a guarantee of being able to share one's beliefs or ideas in community with others, particularly through associations of individuals having the same beliefs, ideas or interests. The term 'association' therefore possesses an autonomous meaning; the classification in national law has only relative value and constitutes no more than a starting-point” (see the Chassagnou v. France judgment of 29 April 1999, Reports 1999, § 100; see also the Le Compte, van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 26-27, §§ 64-66, and the Sigurður A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, pp. 15-16, § 35).

In the Austrian legal system, works councils are bodies established under the statutory provisions of the Industrial Relations Act. The Court notes the findings of the Supreme Court in its decision of 21 December 1995, according to which a works council is not regarded as an association under Austrian law.

The Court considers that works councils not only owe their existence to the will of parliament, but are also set up in accordance with the provisions of the Industrial Relations Act. Thus, a works council is only envisaged for a work place with five or more employees. The number of members of the works council is fixed in relation to the number of staff, and in case of a small number of staff, it consists of one person only. The staff, i.e. the body of persons employed at a work place which is not in itself an association, elect the members of their works council for the purpose of exercising, like the other representative bodies established under the Industrial Relations Act, the functions of staff participation at work. In these circumstances, a works council cannot be considered as an “association” within the meaning of Article 11 § 1 of the Convention.

Furthermore, there is nothing to show that the statutory provisions as applied in the present case otherwise interfered with the applicant's rights under Article 11 § 1 of the Convention. In particular, it does not follow from the applicant's submissions that the rules on the organisation of works councils, including the eligibility to stand for election, interfered with the lawful exercise of freedom of association with regard to trade unions. In this respect, the Court observes, having regard to a previous decision of the European Commission of Human Rights referred to by the applicant in support of his application (Application no. 4125/69, X v. Ireland, decision of 1 February 1971, Collection of decisions no. 37, pp. 42 seq., pp. 49-50), that the circumstances of the applicant in the present case cannot be compared to actions intended to bring about the relinquishment by an employee of the office of shop steward for a particular trade union.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé N. Bratza

Registrar President

32441/96 - -


- - 32441/96