Industrial action did not infringe employer's freedom of association

The European Court of Human Rights indirectly sanctioned the Swedish rules on industrial action in July 1998, as it dismissed an application for revision of its earlier judgment in the case of Gustafsson v. Sweden.

A case which has caused much debate in Sweden was finally settled on 30 July 1998, when the European Court of Human Rights dismissed the request by Torgny Gustafsson for a revision of the Court's judgment in a dispute between him and the Swedish state (SE9710144F). Formally, the case dealt with the question whether the state had failed to protect Mr Gustafsson's "negative" freedom of association according to Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In practice the outcome has significance for the rules on industrial action, as Sweden would have been forced to modify its legislation had the complaint been upheld.

Mr Gustafsson was a restaurant owner who was the target of industrial action when he refused to sign a collective agreement. After four years he sold his restaurant owing to difficulties in running his business, allegedly caused by the industrial action. He complained to the European Commission of Human Rights. The case was brought before the Court, which in April 1996 came to the conclusion that Sweden had not failed to secure Mr Gustafsson's rights (Case of Gustafsson v. Sweden 18/1995/524/610).

In 1997, Mr Gustafsson applied for a revision of this judgment. He argued that the Government had based its argument before the Court on false information when it claimed that the working conditions in his establishment were inferior to those required under a collective agreement, and that the trade unions acted at the request of one of its members who worked for Mr Gustafsson.

In a judgment issued on 30 July 1998, the Court dismissed Mr Gustafsson's request by 16 votes to one. The Court had examined whether the new evidence presented by him would have had a decisive impact on the original judgment if known at that time, and came to the conclusion that it would not. It reiterated the statement in the original judgment that the applicant had not been compelled to opt for membership of an employers' association because of any economic disadvantages attached to the collective agreement offered to him, and that Article 11 of the Convention does not as such guarantee the right not to enter into a collective agreement. The state's obligation to protect a personal opinion (which, according to the Court's case law, is one aspect of freedom of association) can well extend to treatment connected with the operation of the collective bargaining system, but only where such treatment impinges on freedom of association. This was not the case here, and the Court stated that it was sufficient to support the Court's original conclusion.