ECHR rules on impartiality of Swedish Labour Court

In October 2004, the European Court of Human Rights (ECHR) ruled on whether the Swedish Labour Court - which includes representatives of employers' organisations and trade unions - can be considered as impartial, as required by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR found that the Labour Courts composition does not make it partial.

On 26 October 2004, the European Court of Human Rights (ECHR) gave its ruling in the case of Kurt Kellermann AB vs Sweden (Application no. 41579/98). The applicant company had alleged that, on account of the composition of the Swedish Labour Court (Arbetsdomstolen), it did not receive a fair hearing by an impartial tribunal, as required by Article 6.1 of the of the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms, in proceedings concerning industrial action

The issue arises from a judgment issued by the Swedish Labour Court in 1997. AB Kurt Kellermann was a textiles company with 20 employees, which was not a member of an employers' association and had not signed any collective agreements. Two of its employees were members of the blue-collar Industrial Workers' Union (Industrifacket) and this trade union demanded in negotiations with management in spring 1997 that the company should conclude a collective agreement. The negotiations ended in disagreement, with the company refusing to meet the demands of the union. The union gave notice of a strike and blockade of the company, and carried out some of this industrial action. In October 1997, AB Kurt Kellermann went to the Stockholm District Court, claiming that the industrial action was illegal. The District Court referred the case to the Labour Court. The employer objected to this, stating that the majority of members of the Labour Court were not impartial, and that professional judges should rule on the matter. When the case was considered in the Labour Court, the key legal question was whether the industrial action carried out by the two trade union members could be seen as an infringement of the employer's 'negative freedom of association' (ie right not to join an employers' organisation) protected by Article 11 of the European Convention. The Labour Court found in February 1998 that the European Convention had not been breached and that the industrial action could not be seen as illegal according to Swedish law (SE9803173F).

AB Kurt Kellermann (since declared bankrupt) subsequently referred a number of complaints to the ECHR, which on 1 July 2003 rejected a number of the complaints but declared admissible the complaint that the company did not have a fair hearing by an impartial tribunal, as required by Article 6.1 of the European Convention (SE0310101N). The company pointed in particular to the fact that unorganised parties are not represented in the Swedish Labour Court. Under the terms of the Labour Disputes Act (lagen om arbetstvister, SFS 1974:371), in its judging process, the Labour Court normally consists two or three representatives nominated by employers' organisations, two or three representatives nominated by trade unions and one or three professional judges. The chair of the Court, a professional judge, always holds the casting vote.

In the ECHR judgment issued on 26 October 2004, a majority of five judges out of seven found that the 'lay assessors' (ie social partner nominees) sitting in the Swedish Labour Court have taken the judicial oath and have special knowledge and experience of the labour market. The inclusion of lay assessors as members of various specialised courts is a common feature in many countries. The decisive issue, however, according to the ECHR, is whether the balance of interests in the composition of the Labour Court was upset and, if so, whether any such lack of balance would result in the Court failing to satisfy the requirement of impartiality in the determination of the particular dispute before it. This could be so either if the lay assessors had a common interest contrary to those of the applicant or if their interests, although not common, were such that they were nevertheless opposed to those of the applicants. The ECHR noted that the applicant company was not affiliated to any employers’ association and so could not be said to have had any representation on the Labour Court. The opposing party, the Industrial Workers' Union, is affiliated to the Swedish Confederation of Trade Unions (Landsorganisationen, LO), which had nominated one of members of the Court. However, the ECHR stated that to accept that this gives rise to doubts as to the Labour Court’s impartiality would be tantamount to considering that, in cases where lay assessors have been nominated by any labour organisation, the Swedish Labour Court would fail to meet the requirement of being an impartial tribunal in all disputes where one of the parties is not affiliated to such an organisation.

Having regard to these arguments, the ECHR considered that Kurt Kellermann AB could not legitimately fear that the lay assessors who sat in the Labour Court had interests contrary to those of the applicant company or that the balance of interests was upset to such an extent that the Labour Court failed to meet the requirement of impartiality in the determination of the dispute before it. There was thus no violation of Article 6.1 of the European Convention.

Two out of the seven judges on the ECHR had a dissenting opinion. They found that the composition of the Swedish Labour Court implied that the applicant’s fears of not receiving an impartial trial were justified. At the basis of the dispute was the interest of a trade union in forcing a collective agreement on an unorganised employer. The four lay assessors, representing employers’ organisations and trade unions, represented the interests of establishing collective agreements on the labour market.

The ECHR judgment was welcomed by the Confederation of Swedish Enterprise (Svenskt Näringsliv) for private employers and by the three main trade union confederations - the blue-collar LO, the white-collar Swedish Confederation of Professional Employees (Tjänstemannaorganisationen, TCO) and the Swedish Confederation of Professional Associations (Sveriges Akademikers Centralorganisation, SACO). According to LO, the judgment shows that the Swedish system is understood and accepted in Europe. Discussion about possible impartiality of the Labour Court should now cease, LO hopes.