Novotny v. the Czech Republic



AS TO THE ADMISSIBILITY OF

Application No. 36542/97

by Jaroslav NOVOTNY

against the Czech Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 October 1996

by Jaroslav NOVOTNY against the Czech Republic and registered on

18 June 1997 under file No. 36542/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Czech citizen, born in 1936 and residing in

Ostrava (Czech Republic).

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, can be

summarised as follows.

Since 1 July 1959 the applicant has worked for a State company

called Railway Constructions Brno (Zeleznicní stavitelství Brno). By

ruling (usnesení) of 1 April 1992 of the Brno-venkov District Court

(okresní soud) the company was entered in the Companies Register

(obchodní rejstrík) kept by the Brno Regional Commercial Court (krajsky

obchodní soud) as a public company (plc.). At the same time, two

organs of the company were appointed, namely the board of directors

(správní rada) and the supervisory board (dozorcí rada). The members

of the supervisory board were designated by the Federal Fund of

National Property (Federální fond národního majetku) and were entered

in the Companies Register.

On 23 April 1992 the applicant wrote a letter to the company

maintaining that according to the Commercial Code (obchodní zákoník),

one of three members of the supervisory board should be elected by the

employees, and announced his intention of standing in the elections.

On 24 March 1993 the applicant informed the president of his trade

union branch that the elections had not yet been held. In the middle

of April 1993 the applicant learnt that the elections had been

conducted on 9 April 1993 at a meeting of the presidents of the trade

union branches (Council of Presidents - Rada predsedu), and that a

representative of the employees to the supervisory board had been

elected.

On 15 April 1993 the company requested the Brno-venkov District

Court to remove the existing members of the supervisory board from the

Companies Register and to enter the three new ones (two had already

been elected at the general meeting (valná hromada) as representatives

of the shareholders of the company).

On 24 July 1993 the applicant issued proceedings against the

company at the Brno Municipal Court (mestsky soud) seeking an order

that the company hold, within two months, an ordinary election in

relation to the post of employees' representative on the supervisory

board and give the applicant an opportunity to participate in the

election.

On 7 April 1995 the Brno Municipal Court rejected the applicant's

action in the following terms:

"According to Section 38 of the articles of association of

the company, the supervisory board shall be elected by the

general meeting from the shareholders or other persons; the

board has three members; two members shall be elected and

removed by the general meeting and the third one shall be

elected by the employees in full-time employment. ...

Section 200 para. 1 of the Commercial Code provides that

the supervisory board must have at least three members.

Two thirds shall be elected by the general meeting and one

third shall be elected by employees of the company if the

company has, at the time of the elections, more than 50

employees in full-time employment.

According to Section 18 para. 1 of the Labour Code (zákoník

práce), trade union organs have the right to enter into

industrial relations including collective negotiations

under conditions provided for by law. According to

paragraph 2(c) of this Section, the employer shall discuss

with a competent trade union organ in particular those

measures which concern a higher number of employees. ...

According to the collective agreement of 1993 (kolektivní

smlouva pro rok 1993) and with reference to the provisions

of the Commercial Code, the general director of the company

invited, in a letter of 29 March 1993, the Council of

Presidents to conduct an election in relation to the post

of employees' representative on the supervisory board. The

Presidents of the trade union branches of the company were

invited ... to nominate a candidate for the election

scheduled for 9 April 1993. The applicant filed his

application as an independent candidate. The President of

the applicant's trade union branch was notified of the

latter's candidature and informed all its branches. Upon

a recommendation from technical economic employees, Mr B.

was proposed as a candidate. The elections were conducted

on 9 April 1993 in application of the rules on elections

(volební rád) of 7 April 1993, and Mr C. was elected member

of the supervisory board. ...

On the basis of these circumstances the court found that

the applicant's request that the company hold ordinary

elections was not founded. Having assessed all the

evidence, the court did not find any breach of legal

provisions by the company, in particular of the Labour Code

and the amended provisions. ...

The applicant has claimed the right to elect an employees'

representative to the supervisory board as a right

resulting from his contract of employment. Neither the

fact that the applicant did not participate in the election

nor the result of this election or the manner in which the

elected employees' representative accomplishes his

functions can be considered to be a violation of labour law

by the company."

On 22 May 1996 the Brno Regional Court (krajsky soud), upon the

applicant's appeal, upheld the judgment of first instance as regards

the merits and changed the judgment as to the court fees stating that

the parties had no right to recover the court fees, but ordered the

applicant to pay 431 crowns to the State. The Court held in

particular:

"According to Section 30 of the articles of association of

31 March 1992 ... the supervisory board shall be elected by

the general meeting from the shareholders and other

persons. The supervisory board has three members. On the

foundation of the company the founder shall appoint first

members of the supervisory board in the decision on the

foundation. Afterwards, two members shall be elected and

removed by the general meeting and the third one by the

employees in full-time employment. ...

The status of the supervisory board as an organ of a public

company (plc.) is governed by Section 197 et seq. of the

Commercial Code. The supervisory board is a collective

organ having at least three members. Section 200 of the

Commercial Code provides that 2/3 of the members of the

supervisory board shall be elected by the general meeting

and 1/3 by the employees of the company if the company has

more than 50 employees in full-time employment at the time

of the elections. ... The fact that 1/3 of the supervisory

board shall be elected by the employees constitutes a legal

guarantee that the employees can influence the composition

of the supervisory board. Section 200 of the Commercial

Code specifies who shall elect the supervisory board, but

determines neither who shall conduct the elections of the

employees' representative nor the way in which these

elections shall be held. It merely consistently separates

elections by the general meeting from elections of the

employees' representative. Section 200 only provides that

'1/3 shall be elected by the employees of the company'; it

only appears that all the employees of the company shall

participate in the elections. Neither the Commercial Code

nor any other legal act links the right of the employees to

vote and to be elected to the supervisory board and to

participate in organising the elections with any duty laid

on the company to organise and conduct these elections.

In a situation where the legal provisions do not place a

duty on a public company (plc.) to organise and conduct

elections of an employees' deputy to the supervisory board,

and where, at the same time, it has not been established

that the company concerned has undertaken such a duty by

means of a collective agreement, its articles of

association or otherwise, it is not possible to impose this

duty by a court decision."

On 7 October 1996 the applicant lodged a constitutional appeal

with the Constitutional Court (Ústavní soud) claiming that the

proceedings before the Brno Regional Court were unreasonably long and

unfair, in particular because the Regional Court had not informed him

of the possibility of filing a cassation appeal.

On 26 May 1997 the Constitutional Court rejected the applicant's

appeal as being manifestly ill-founded.

B. Relevant domestic law

Section 200 para. 1 of the Commercial Code provides in particular

that the supervisory board must have at least three members. Two

thirds shall be elected by the general meeting and one third shall be

elected by employees of the company if the company has, at the time of

the elections, more than 50 employees in full-time employment.

According to paragraph 2, the members of the supervisory board are

elected for the period determined by the articles of association, but

not for more than five years.

COMPLAINTS

The applicant complains that the proceedings before the Brno

Municipal Court and the Brno Regional Court as well as the Brno-venkov

District Court and the Brno Regional Commercial Court were unfair and

in breach of the Introduction and Articles 90, 95 and 96 of the

Constitution of the Czech Republic, Articles 1, 36 and 38 of the

Charter of the Fundamental Rights and Freedoms, Section 3 of the Civil

Code, Sections 2, 5, 6, 114, 115 and 200(b) of the Code of Civil

Procedure and Sections 1, 175, 200 and 265 of the Commercial Code. He

also claims that the proceedings concerning his action against the

company lasted unreasonably long. He further claims that the

proceedings were not held by an impartial tribunal in particular with

regard to the Brno Regional Court. He invokes Article 6 para. 1 and

Article 13 of the Convention.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention and 13 of the Convention that the proceedings before the

Brno Municipal Court and the Brno Regional Court as well as the Brno-

venkov District Court and the Brno Regional Commercial Court were

unfair and in breach of different national legal provisions. He also

claims that the proceedings concerning his action against the company

lasted unreasonably long and were not held by an impartial tribunal,

in particular with regard to the Brno Regional Court.

1 The Commission first notes that the proceedings before the Brno-

venkov District Court and the Brno Regional Commercial Court concerning

the registration of the member of the supervisory board elected on

9 April 1993 by the employees of the company in the Companies Register

relate to April 1993 which is more than six months before the date on

which the present application was submitted.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2 As regards the proceedings before the Brno Municipal Court and

the Brno Regional Court dealing with the applicant's action against the

company, the Commission considers that as the requirements of

Article 13 (Art. 13) of the Convention invoked by the applicant are

less strict than the requirements of Article 6 para. 1 (Art. 6-1) of

the Convention the violation of which the applicant also alleges, the

applicant's complaints should be examined under the latter provision

which provides, inter alia, that in the determination of his civil

rights and obligations, everyone is entitled to a hearing within a

reasonable time by an independent and impartial tribunal.

The Commission further recalls that Article 6 para. 1 (Art. 6-1)

of the Convention extends only to "contestations" (disputes) over

(civil) "rights and obligations" which can be said, at least on

arguable grounds, to be recognised under domestic law; it does not in

itself guarantee any particular content of (civil) "rights and

obligations" in the substantive law of the Contracting States (see Eur.

Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A

no. 121-A, p. 32, para. 73). In particular, the dispute

("contestation") must be "genuine and serious" (see Eur. Court HR,

Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no.

163, p. 19, para. 67).

The Commission notes that in the proceedings brought before the

Brno Municipal Court the applicant sought an order that the company

hold, within two months, an ordinary election in relation to the post

of employees' representative on the supervisory board and give the

applicant an opportunity to participate in the election.

In the present case, the Commission notes that Czech law does not

contain a right for an employee to have elections to the supervisory

board of his company ordered at a particular time. Section 200 of the

Commercial Code merely provides that "the supervisory board must have

at least three members. Two thirds are elected by the general meeting

and one third is elected by employees of the company if the company

has, at the time of the elections, more than 50 employees in full-time

employment".

In any event, the "right" to participate in the elections of the

employees' representative to the supervisory board of the company or

to stand for election as such a representative cannot be described as

a right which is "civil" in nature. The Commission observes that even

though this "right" derives from the status of the employee which is

based on a contract of employment, a possible election to the

supervisory organ does not affect this status in any way. Moreover,

even assuming that the representative of the employees sitting on the

supervisory board defends the interests of the employees including

questions of salaries or working conditions, the Commission considers

that such a general task is not sufficiently decisive for his financial

and social situation as an employee.

The Commission considers, therefore, that the proceedings before

the Brno Municipal Court and the Brno Regional Court did not involve

a dispute ("contestation") about one of the applicant's civil rights.

It concludes that Article 6 para. 1 (Art. 6-1) of the Convention is

therefore not applicable in the present case.

It follows that this part of the application must be rejected as

incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber