THE FACTS

I.   Basic facts not in dispute between the Parties

The applicant is an association of Swedish pilots, founded in 1904, for
the purpose of safeguarding and forwarding the professional interests
of its members. According to the applicant, 84 per cent of all Swedish
pilots belong to the association.

It is represented by Mr. Olle Kindblom, a lawyer practising in
Stockholm. The application was originally introduced by the
intermediary of the European Maritime Pilots' Association. On 18
December 1970, the Commission decided, however, that only the Swedish
Pilots' Association - and not the European Association - should be
regarded as a party to the case.

In its observations on the admissibility the respondent Government has
given a detailed summary of the facts of the case. The applicant has
stated in reply that the summary appears to be largely correct. The
basic facts set out below have been taken from the Government's
observations. As they have not been contested by the applicant and
agree with the presentation of facts made in the submissions on behalf
of the applicant, they are taken not to be in dispute between the
Parties.

1.   As to collective agreements relating to State employees in Sweden
in general

The National Collective Bargaining Office, (Statens avtalsverk,
hereinafter referred to as SAV) is a public body which, on behalf of
the Swedish State, negotiates terms of employment and conditions of
work with different categories of State employees. The large majority
of Swedish State employees are members of unions or associations which
protect their professional interests, as regards salaries and
conditions of work. Most of these unions and associations are in their
turn affiliated to one of the major labour organisations in Sweden.
Consequently, the collective agreement which SAV concludes with these
major organisations become binding on the large majority of State
employees.

A small number of unions and associations are not, however, affiliated
to the major labour organisations and their members are therefore not
directly affected by the agreements concluded between SAV and the major
organisations. According to Section 4 of the Royal Ordinance of 30 June
1965, regarding certain collective labour agreements concluded by the
State etc. a public authority which is bound by a collective agreement
shall, however, apply the terms of the agreement also in regard to
employees who are not covered by the agreement, provided that they
belong to a profession and work within a sector dealt with in the
agreement and that no other collective agreement has been concluded in
regard to these employees.

2.   As to the facts

During the years 1966 to 1968, the salaries of Swedish State employees
and certain other terms of employment were laid down in a general
agreement which had been concluded by SAV, on the one hand, and four
major labour organisations, on the other. When this agreement was
concluded, the applicant association was affiliated to one of these
four organisations, namely, the Civil Servants Section of the Swedish
Central Organisation of Salaried Employees (Tjänstemännens
Centralorganisations statstjänstemannasektion, hereinafter referred to
as TCO-S). Consequently, the general agreement was binding on the
applicant and its members. On 1 July 1967, the applicant withdrew from
TCO-S. Nevertheless, under Swedish law, the general agreement remained
binding on the applicant until its expiry.

The general agreement for the years 1966 to 1968 provided that it
should automatically be prolonged by one year, unless notice was given
before 1 October 1968. The applicant, for its part, gave notice by
letter of 23 September 1968. Consequently, the general agreement
expired on 31 December 1968, insofar as the relations between the State
and the applicant were concerned.

At the end of 1968, the applicant requested a meeting with SAV in order
to discuss a temporary prolongation of the general agreement pending
the conclusion of a new agreement with SAV. A meeting was held on 30
December 1968. It appears from the minutes of this meeting that SAV was
not willing to sign an agreement with the applicant regarding a
temporary prolongation of the general agreement. The refusal of SAV to
prolong the agreement in regard to the applicant did not mean, however,
that the salaries or other benefits which the members of the applicant
received were in any way reduced after the expiry of the agreement on
31 December 1968. In fact, SAV had concluded a prolongation agreement
with TCO-S, whose membership included a certain number of pilots, and
according to the 1965 Ordinance referred to above, the State was bound
to apply the same terms of employment to pilots who were members of the
applicant. Consequently, the general agreement remained applicable to
the members of the applicant as an indirect result of the prolongation
agreement with TCO-S despite the fact that no separate prolongations
agreement had been concluded with the applicant.

By letter of 13 March 1969 the applicant asked for negotiations with
a view of concluding, inter alia, an agreement regarding salaries and
a separate agreement regarding working hours. A meeting between SAV and
the applicant was held on 10 April  1969. From the minutes of this
meeting it appears that, with one exception, SAV was only willing to
enter into collective agreements with the major labour organisations.
The minutes show that SAV communicated to the applicant certain
proposals regarding salaries in 1969 and 1970 which it had submitted
to the major labour organisations, including TCO-S. The applicant was
thereby given the opportunity of stating its views on these proposals
which also concerned the salaries of the pilots. The representative of
SAV gave some oral explanations in regard to the proposals and
undertook to keep the applicant informed of the development of SAV's
negotiations with the major organisations. They also declared their
willingness to discuss with the applicant the terms of employment of
pilots, although SAV did not intend to conclude a separate agreement
with the applicant. As explained above an agreement with SAV and TCO-S
would, however, be applicable also to members of the applicant, if no
agreement had been concluded with that organisation. It further appears
from the minutes of the meeting on 10 April 1969 that SAV intended to
submit a proposal for a working hours agreement.

Later on the same day, i.e. 10 April 1969, the applicant informed SAV
that it did not intend to pursue the negotiations and gave notice of
its intention to proclaim a strike and a blockade as from 16 April
1969.

On 18 April 1969 the King-in-Council appointed a conciliator to mediate
between the parties. Meeting were held before the conciliator on 19,
24 and 29 April 1969. On 19 April 1969 SAV submitted to the conciliator
a proposal which it had already presented to the major labour
organisations. SAV indicated that this proposal also concerned the
salaries which would apply to members of the applicant but maintained
at the same time its refusal to conclude a separate agreement with the
applicant. The conciliator subsequently informed SAV that the applicant
insisted on a formal agreement with SAV and did not wish to comment on
the substance of the SAV proposal. On 29 April 1969 the applicant
declared that the negotiations before the conciliator were terminated
and that the strike and the blockade which had been postponed pending
these negotiations would be put into effect on 30 April 1969. On 5 May
1969, SAV retaliated by proclaiming a lockout of members of the
applicant as from 13 May 1969.

On 13 May 1969 the applicant instituted proceedings against SAV before
the Labour Court (arbetsdomstolen)  In these proceedings, the applicant
alleged that SAV had violated Section 4 of the 1936 Act regarding the
right to organise and to negotiate. This Section guarantees the right
to negotiate which is defined as the right to demand negotiations
regarding the terms of employment or other relations between employers
and employees. Holders of this right are, on the one hand, any employer
or association of employers and, on the other hand, any union of
employees. If one party has the right to negotiate, the other party is
obliged to enter into negotiations.

In its judgment which was given on 22 May 1969, the Labour Court
pointed out that the obligation to negotiate could not be construed as
imposing on any of the parties an obligation to arrive at an agreement
with the other party. In fact, SAV and the applicant were agreed on
this point.  The Court further stated that if one party declares in the
beginning of the negotiations that he does not wish to conclude a
collective agreement with the other party, this is not in itself a
violation of his obligation to negotiate. Such a declaration does not,
however, "relieve the party concerned of the obligation to discuss, at
the request of the other party, both the form in which a settlement of
the points at issue would be effected and the substantive questions
regarding the terms of employment of the employees concerned". On this
basis and after examining the facts of the case, the Court concluded
that SAV had not violated its obligation to negotiate with the
applicant.

The strike and the lockout continued until 24 May 1969. In May and June
1969, the conciliator held some further meeting with the parties who
both adhered to the positions they had taken previously. No settlement
could therefore be achieved, and at the last meeting which was held on
26 June 1969 the conciliator concluded that in view of the attitudes
taken by the parties his mission had been completed.

On 12 July 1969, a new general agreement for the years 1969 to 1970 was
concluded by SAV and TCO-S. For the reasons set out above, the terms
of this agreement became applicable also to the members of the
applicant.

On 1 March 1970, the applicant joined one of the major labour
organisations, namely, the Swedish Confederation of Professional
Associations (Sveriges Akademikers Centralorganisation, hereinafter
referred to as SACO). Consequently, from this date the agreement in
force between SAV and SACO which contained rules concerning the terms
of employment of pilots, was binding on the applicant's members.
II.  The applicant's complaints

The applicant alleges a violation of Article 11 of the Convention. The
specific complaints made on behalf of the applicant in the original
submissions may be summarised as follows:

(a)  The applicant claims that the pilots have been denied their
rights under Swedish law. By making it clear already at the outset of
the negotiations that SAV did not intend to conclude an agreement with
the applicant, SAV acted contrary both to the letter and the spirit of
Swedish law.

(b)  It is further submitted that SAV ignored the obligation placed
upon the State by the Labour Court. The applicant contends that,
encourage by the findings in the judgment of the Court, it instigated
further negotiations before the conciliator requesting that they should
be positive in intent and designed to determine new conditions of
employment for the pilots. SAV persisted, however, in its
uncompromising attitude towards the applicant.

(c)  The applicant complains that it was the deliberate policy of SAV
to suppress or destroy the applicant as an effective organisation
representing the Swedish pilots by forcing them to join an organisation
of the State's own choosing. In this connection, the applicant alleges
that the Director of SAV publicly states that SAV was determined to
carry its refusal to enter into collective agreements with
organisations, such as the applicant, to such a point that they would
be forced to join a major labour organisation out of a sense of
frustration.

III. Submissions of the Parties

1.   As to the facts

The respondent Government firmly contests the allegations that the
Swedish pilots have been denied their rights under Swedish law and that
the obligations placed upon the State by the Labour Court were ignored
by the SAV. It also refutes, as being equally unjustified, the
assertion that the attitude adopted by SAV at the negotiations was
contrary to the spirit and the letter of Swedish law. In this respect
the Government refers to the judgment of the Labour Court which
precisely contains the conclusion that SAV had not failed in its
obligations under Swedish law. The subsequent events cannot in any way
justify a different conclusion.

The Government also contests the allegation that the policy pursued by
SAV was aimed at suppressing or destroying the applicant as an
effective organisation by forcing it to join a major labour
organisation. It is submitted that, in establishing its general policy,
SAV started from the idea that it was not obliged to conclude a
collective agreement with any organisation. SAV was therefore free to
determine whether it should only conclude collective agreements with
major organisations or whether it should also be prepared to sign
agreements with other organisations representing special groups of
employees. When preferring, in principle, the firs alternative, SAV
wished to discourage a further disintegration of the unions
representing State employees. Such disintegration would entail risk of
strikes and of other separate action by small groups of employees
wishing to enforce their special claims. The policy which SAV adopted
was therefore aimed at securing stability and maintaining peaceful
relations on the labour market. It was in no way directed only against
the applicant, since SAV has been equally reluctant to pass collective
agreements with nearly all other unions which were not affiliated to
the major labour organisations.

As regards the public statement allegedly made by the Director of SAV
the Government has been unable to identify it and is not prepared to
confirm that the Director expressed himself in the terms indicated by
the applicant.

In its observations in reply the applicant has adhered to its original
allegations.

Referring to the Act of  1936, regarding the right to organise and to
negotiate, the applicant states that the Act, while imposing an
obligation to negotiate, does not provide for any right to obtain a
collective agreement with the other party, this does not mean that it
has neglected its duty to negotiate. On the other hand, the Court held
that such a declaration does not relieve the party concerned of the
obligation to discuss, at the request of the other party, both the form
in which a settlement of the points at issue could be effected and the
substantive questions regarding the terms of employment. In the
applicant's submission, the only form of agreement between employer and
employee recognised by Swedish law, is in fact a collective agreement.
As regards the duty to negotiate on terms of employment, this is
exactly what the applicant asked for but did not obtain. According to
the applicant, it has not proved possible to get any explanation of
this contradictory statement since the Labour Court has exclusive
jurisdiction and no appeal lies against its decisions.

The applicant claims that SAV has refused the applicant its lawful
right to negotiate. This could have been avoided if SAV from the outset
had made it clear to the applicant that it could not expect any other
collective agreement that signed with TCO-S. In Swedish labour law such
an agreement is called an "accessory agreement". Despite the fact that
their attention had been drawn to this, SAV also refused to make such
an agreement with the applicant.

2.   Arguments as to the admissibility

(a) As to whether the applicant has complied with the six months' rule

The respondent Government has submitted as follows:

In its application, the applicant alleges that SAV violated its right
to freedom of association as guaranteed by Article 11 of the
Convention. In the applicant's submission, this violation consisted of
the refusal of SAV to conduct negotiations with a view to concluding
an agreement with the applicant. While alleging that this refusal also
contravened the Swedish Act regarding the right to organise and to
negotiate, the applicant first introduced proceedings before the Labour
Court which rendered its judgment on 22 May 1969. There was no appeal
from this judgment, nor was there under Swedish law any other domestic
remedy in respect of this complaint. Consequently, the judgment of the
Labour Court is the final decision within the meaning of Article 26 of
the Convention. The present application, however, was not lodged with
the Commission until 17 February 1970, i.e. more than six months after
the date of the final domestic decision. The application is therefore
inadmissible according to Article 27 (3) of the Convention.

The applicant submits that the Government's objection in this respect
should be disregarded. As already stated no appeal can be lodged
against decisions by the Labour Court. When judgment had been given,
the applicant addressed itself to Mr. Tage Erlander, the Swedish Prime
Minister at that time, and the Chairman of the Association requested
a meeting with him in the autumn of 1969. The applicant was therefore
trying to obtain redress from the Swedish Government for the way it had
been treated. Mr. Erlander was unable to meet the Chairman and this led
to the latter writing again in March 1970. In the applicant's opinion,
the six months' should apply from the date that all possibility of
redress had been exhausted and this had not in fact been the case until
the Prime Minister's reply was received in April 1970.

(b)  As to whether the application is manifestly ill-founded

The respondent Government submits that, if the Commission should not
declare the application inadmissible on the ground invoked under (a),
it is important to consider whether the acts complained of could
possibly constitute a violation of Article 11 of the Convention.

As to the substance of the allegations made by the applicant (see II
above) the Government states that, although SAV declared its intention
not to conclude an agreement with the applicant, it was quite prepared
to discuss with the applicant the salaries and other terms of
employment which were to apply to pilots during 1969-70. These terms
were to be included in an agreement between SAV and TCO-S and would
therefore apply also in regard to the members of the applicant. The
Government further recalls that it contests the applicant's allegation
that the aim of SAV was to force the applicant to join a major
organisation.

Referring to the terms of Article 11 of the Convention, the Government
submits that in the present case, only the freedom of association is
at issue, and it is necessary to consider the meaning and scope of the
term "freedom of association".

Some clarification is provided by Article 11 itself, which indicates
that the right to form and to join trade unions is included in the
concept of "freedom of association". It is clear that the right to form
and to join trade unions has not been violated in the present case. The
pilots have not been denied the right to form or to join the applicant
and the applicant has been free, in its turn, to join first TCO-S and
later SACO.

However, the wording of Article 11 indicates that freedom of
association also includes other elements that the right to form and to
join trade unions. The travaux préparatoires of the Convention show
that the provisions of Article 11 were in substance taken from Articles
20 and 23 (4) of the Universal Declaration of Human Rights. It should
be observed, however, that the Convention contains no provision
corresponding to Article 20 (2) of the Universal Declaration which
provides that no one may be compelled to belong to an association. It
appears from the travaux préparatoires that this provision was omitted
on account of the difficulties that it would create in certain
countries. It may be interesting to notice this omission in the present
case, where it is suggested that an attempt has been made to compel the
applicant to join a major organisation. Nevertheless, the Government
does not wish to draw any definite conclusions on this point, in
particular, since the Commission has already stated in a recent
decision that the notion of "freedom of association" also implies
freedom not to join a trade union (Application No. 4072/68, Collection
of Decisions, Vol. 32, p. 86).

For the purpose of defining the concept of "freedom of association" it
is important to study the 1948 ILO Convention concerning freedom of
association and protection of the right to organise. This Convention
sets out in some detail the different elements which are inherent in
the freedom of association, and the Government considers that these
elements should also be taken into account for the purpose of
interpreting Article 11 of the European Convention. According to the
ILO Convention, the freedom of association includes in particular the
following rights. Workers and employers, without distinction
whatsoever, shall have the right to establish and, subject only to the
rules of the organisation concerned, to join organisations of their own
choosing without previous authorization (Article 2). Workers' and
employers' organisations shall have the right to draw up their
constitutions and rules, to elect their representative in full freedom,
to organise their administration and activities and to refrain from any
interference which would restrict this right to impede the lawful
exercise thereof (Article 3). Workers' and employers' organisations
shall not be liable to be dissolved or suspended by administrative
authority (Article 4). Workers' and employers' organisations shall have
the right to establish and join federations and confederations and any
such organisations, federation or confederation shall have the right
to affiliate with international organisations of workers and employers
(Article 5).

Reference should also be made to certain other international agreements
which have been concluded after the European Convention and contain
provisions about the freedom of association.

One of these agreements is the European Social Charter. It is true that
this Charter does not expressly refer to " the freedom of association",
but the terms used are "the right to organise" (Article 6). It is
required that national law shall not be such as to impair, nor shall
it be so applied as to impair, the freedom of workers and employers to
form local, national or international organisations for the protection
of their economic and social interests and to join those organisations
(Article 5). Moreover, the Contracting Parties shall promote joint
consultation between workers and employers and, where necessary and
appropriate, machinery for voluntary negotiations between employers or
employers' organisations and workers' organisations, with a view to the
regulation of terms and conditions of employment by means of collective
agreements. They shall also promote the establishment and use of
appropriate machinery for conciliation and voluntary arbitration for
the settlement of labour disputes and recognise the right of workers
and employers to collective action in cases of conflicts of interest,
including the right to strike, subject to obligations that might arise
out of collective agreements previously entered into (Article 6).

Certain provisions which are relevant to the point at issue in this
case are to be found in the two International Covenants on Human
Rights. The International Covenant on Economic, Social and Cultural
Rights guarantees the right of everyone to form trade unions and join
the trade union of his choice, subject only to the rules of the
organisation concerned, for the promotion and protection of his
economic and social interests, as well as the right of trade unions to
establish national federations or confederations and the right of the
latter to form or join international trade union organisations. It also
protects the right to form and join trade unions for the protection of
his interests (Article 22).

The general conclusion that can be drawn from these different
international instruments seems, in the Government's submission, to be
that the purpose of the international rules concerning the freedom of
association is to guarantee that the activities of trade unions and
employers' organisations are not impeded by legislative, administrative
or other measures taken by the State in the exercise of its public
functions. These rules do not however, affect the relations between the
parties on the labour market. They do not impose on employers or
employers' organisations any obligations towards the unions, nor do
they create any obligations for the trade unions or to conclude
agreements with them  It is true that Swedish law provides for a right
to negotiate, but when doing so, Swedish law gives employees, employers
and their organisations more extensive rights than can be derived from
the European Convention or indeed from any of the international
agreements referred to here.

When negotiating and concluding collective agreements with
organisations representing its employees, the State does not exercise
public functions. In fact, the legal relations between the State and
the labour organisations are, insofar as such negotiations and
agreements are concerned, the same as those which exist between any
other employer and the trade unions. It has already been stated that
the European Convention does not affect the relations between the
parties on the labour market, and this statement must obviously be
valid even when one of these parties is the State.

The conclusions is therefore, in the present case, that the State was
free to conclude or not conclude an agreement with the applicant, and
it was not even obliged, under the Convention, to enter into
negotiations with the applicant. The obligation to negotiate did not
result from the Convention but from the Swedish national law, and
although it is not directly relevant in the present case, it is
recalled that the Labour Court considered SAV to have complied also
with this obligation.

It follows in the opinion of the respondent Government, that the acts
complained of cannot possibly have constituted a violation of the right
to freedom of association as guaranteed by Article 11 of the
Convention. In fact, the allegations made by the applicant are based
on a very extensive interpretation of the concept of "freedom of
association" which is inconsistent both with the sense given to this
concept in other international instruments and with the cautious and
rather restrictive interpretation which the Commission has previously
adopted in regard to Article 11 (see application NO. 1028/61,
Collection of Decisions, Vol. 6, p. 77, where it was held that the
right to participate in the administration or the management of an
association is not included in the concept of "freedom of
association").

On these grounds, the Government is of the opinion that the application
is also inadmissible as manifestly ill-founded within the meaning of
Article 27, paragraph (2), of the Convention.

In its observations in reply the applicant maintains that the attitude
adopted by SAV towards it amounts to a violation of Article 11 of the
Convention. The applicant emphasises that all different categories of
State employees in Sweden have only one employer - the Swedish State
for which SAV negotiates. It is no understatement to say that SAV acts
on the Government's instructions although it claims to be a totally
independent office. The situation on the Swedish private labour market
is, in the applicant's opinion, entirely different. Although the
Swedish Employers' Confederation (Svenska Arbetsgivareföreningen) acts
on behalf of the private employers, these cannot influence the
activities of the Confederation to the same extent as the Government
influences SAV. These facts should be borne in mind when considering
SAV's treatment of the applicant.

The applicant has not directly commented on the interpretation of the
concept of "freedom of association" within the meaning of Article 11
of the Convention.

THE LAW

The applicant has alleged that the refusal of the National Collective
Bargaining Office (SAV) to conduct negotiations with the applicant with
a view of concluding a collective agreement violated Article 11
(Art. 11) of the Convention which guarantees the right to "freedom of
association with others, including the right to form and to join trade
unions for the protection of his interests". The applicant has also
complained that this refusal was inconsistent with the relevant
provisions of the Swedish Act of 1936 regarding the right to organise
and to negotiate and that the policy adopted by SAV in this respect was
intended to suppress or destroy the applicant as an effective
organisation representing the Swedish pilots by forcing them to join
a major labour organisation.

The respondent Government has first submitted that the application
should be rejected as inadmissible under Article 25 (Art. 25) of the
Convention on the ground that it was lodged with the Commission more
than six months after the judgment of the Labour Court of 22 May 1969,
this being the "final decision" within the meaning of Article 26
(Art. 26). In this connection, the Government has emphasised that the
applicant's allegation that the refusal of SAV contravened the 1936 Act
formed the basis of the proceedings before the Labour Court.

In the alternative, the respondent Government - which also contested
the allegations that the aim of SAV was to force the applicant to join
a major labour organisation and that the applicant has been denied its
rights under Swedish law - has submitted that the application is
manifestly ill-founded as the acts complained of could not possibly
have constituted a violation of the right to freedom of association as
guaranteed by Article 11 (Art. 11) of the Convention. In this
connection, the Government has referred to certain other international
agreements which contain provisions regarding freedom of association.
In the Government's submission the State was, in the present case, free
to conclude, or not to conclude, an agreement with the applicant and
in this connection it was not even obliged, under the Convention, to
enter into negotiations with the applicant. Although under Swedish law
there was an obligation to negotiate, the Labour Court considered SAV
to have complied with that obligation.

Having carried out a preliminary examination of the application in the
light of the information and arguments presented by the Parties, the
Commission finds that it raises complex and important issues of facts
and law, in particular, regarding the interpretation of the concept of
"freedom of association" in Article 11 (Art. 11) of the Convention in
relation to trade unions. The Commission considers that the
determination of these issues should depend on an examination of the
merits of the case. The application, cannot, therefore, be regarded as
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

However, the Commission has also had regard to the respondent
Government's submission that the Labour Court's decision of 22 May 1969
was the final decision within the meaning of Article 26 (Art. 26) and
that the present application which was lodged on 17 February 1970, has
thus not conformed with the six months' rule laid down in Article 26
(Art. 26). The Commission considers that the determination of this
issue is closely linked with the previous question of the scope of the
provisions of Article 11 (Art. 11) regarding the freedom of association
in relation to trade unions. In particular, the question whether the
Labour Court's decision is the final decision within the meaning of
Article 26 (Art. 26) depends upon the question whether the Labour Court
was, in the circumstances, competent to correct the violation of the
Convention now alleged by the applicant. This again depends upon the
question whether Swedish law and in particular the 1936 Act, which
bound the Labour Court, were in conformity with Article 11 (Art. 11)
of the Convention. This question involves a study of Swedish law and
an interpretation of Article 11 (Art. 11) and is obviously closely
linked to this substantial issue whose determination by the Commission
will depend upon an examination of the merits of the case. The
applicant has also alleged that, even after the Labour Court's decision
SAV persisted in its refusal to negotiate with a view to conclude a
collective agreement and the Commission considers that this may raise
a question of a continuing violation which again may effect the
significance of the Labour Court's decision in relation to Article 26
(Art. 26). In these circumstances the Commission finds that the issue
under Article 26 (Art. 26) should be joined to the merits.

For these reasons, the Commission

DECLARES ADMISSIBLE THE APPLICATION AND JOINS TO THE MERITS THE
QUESTION OF THE SIX MONTHS' RULE UNDER ARTICLE 26 (Art. 26) OF THE
CONVENTION