MINISTERS’ DEPUTIES

CM Documents

CM(2023)197

2 November 2023[1]

1484th meeting, 13 December 2023 4 Human rights   4.1 European Social Charter Follow-up to the decisions of the European Committee of Social Rights (ECSR) in the context of the collective complaints procedure b. Norwegian Association of Small and Medium Enterprises (SMB Norge) v. Norway, Complaint No. 198/2021 and Fellesforbundet for Sjøfolk (FFFS) v. Norway, Complaint No. 209/2022 Item to be considered by the GR-SOC at its meeting on 28 November 2023

 

Action To examine the draft resolution below with a view to its adoption.

1.            The complaint Norwegian Association of Small and Medium Enterprises (SMB Norge) v. Norway was registered on 26 March 2021. The European Committee of Social Rights (ECSR) adopted its decision on admissibility and declared this complaint admissible on 8 September 2021.

2.            The complaint Fellesforbundet for Sjøfolk (FFFS) v. Norway was registered on 1 April 2022. The ECSR adopted its decision on admissibility and declared this complaint admissible on 14 September 2022.

3.            Pursuant to Rule 26A§1 of the Rules, the ECSR decided to join the above-mentioned complaints lodged by SMB Norge and FFFS on 14 September 2022. It adopted its decision on the merits on 13 September 2023 and transmitted its report containing the decision on the merits of the complaints to the parties and to the Committee of Ministers on 18 October 2023. The decision will be made public at the latest on 19 February 2024.

4.            SMB Norge is a representative employers’ organisation for the purposes of the collective complaints procedure within the meaning of Article 1 (c) of the 1995 Additional Protocol providing for a system of collective complaints (Protocol). FFFS is a representative trade union within the meaningof Article 1 (c) of the Protocol.

5.            SMB Norge and FFFS alleged that the current system of selecting lay judges to sit in Norwegian courts in termination and dismissal cases violates Article 24 of the Revised European Social Charter (“the Charter”) in that the parties themselves nominate and decide on the lay judges who are to sit in these cases. They alleged that while this system is beneficial for some groups, it is disadvantageous to others, such as members of SMB Norge and FFFS as well as non-unionised workers.

A)         Summary of the decision on the merits

6.            In its decision, the ECSR concluded unanimously that there was no violation of Article 24 of the Charter.

7.            The ECSR recalled Article 24 of the Charter relates to termination of employment at the initiative of the employer and any worker who considers themselves to have been dismissed without valid reason must have the right to appeal to an impartial body. The ECSR noted that it had not yet had an opportunity to examine in depth an “impartial” body notion referred to in Article 24 of the Charter and it drew inspiration from pertinent case law under other provisions of the Charter, as well as from other international instruments and the case law of other international bodies. The ECSR underlined the principle of indivisibility and interdependence of human rights.

8.            In order to assess the impartiality of a body, the ECSR considered that the following issues must be examined: whether the body is independent from the legislative and executive branches as well as from the parties (this entails the examination of the manner of appointment of judges, the duration of their term of office and safeguards against outside pressure) and whether the body in question appears to be independent (whether the body itself offers adequate guarantees to exclude all doubts as to its impartiality, including the rules on withdrawal of judges).

9.            The ECSR noted that the complainant organisations question the appointment procedure for lay judges in cases on termination and dismissal. It also noted that the district courts in these cases are composed of one professional judge and two lay judges, one from the employers’ organisations and one from the workers’ organisations. All organisations can nominate the judges, but in practice the appointment on the list takes place on the basis of proposals from the main organisations (the four largest employers’ organisations and the four largest workers’ organisations). The requirements for lay judges are identical to the ones for other judges, and so are the rules on withdrawal.

10.          The ECSR considered that the Norwegian law does not prevent organisations other than the main ones from submitting their proposals for lay judges although the complainant organisations hitherto had not done so. The ECSR considered that it had not been demonstrated that the lay judges proposed by the employers’ or workers’ organisations were biased in practice when deciding on particular cases, or that they otherwise did not appear independent.

B)         Information submitted by the delegation concerned

11.          At the time of writing, no information had been submitted.

*  *  *

It is recalled that in previous collective complaints where the ECSR found the situation to be in conformity with the Charter, the Committee of Ministers has adopted a resolution. A draft resolution on this complaint is appended.

Appendix

Draft Resolution CM/ResChS(2023)…

Norwegian Association of Small and Medium Enterprises (SMB Norge) v. Norway, Complaint No. 198/2021 and Fellesforbundet for Sjøfolk (FFFS) v. Norway, Complaint No. 209/2022

(Adopted by the Committee of Ministers on … 2023

at the … meeting of the Ministers’ Deputies)

The Committee of Ministers[2],

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaints lodged by Norwegian Association of Small and Medium Enterprises (SMB Norge) v. Norway and registered on 26 March 2021, and Fellesforbundet for Sjøfolk (FFFS) v. Norway and registered on 1 April 2022;

Having regard to the report transmitted by the European Committee of Social Rights, in which the Committee concluded unanimously that there was no violation of Article 24 of the Charter;

Takes note of the report.