Ratified treaties;¹ International case law²

National law establishing the conditions for founding trade unions, the criteria pertaining to their representative capacity, and the derivative advantages/ Action by workers' associations for non-compliance with the Constitution and with ILO Conventions Nos. 87 and 98/ Examination of the legislative provisions/ Use of international law as a guide for interpreting domestic law

Slovenian trade unions had instituted proceedings before the Constitutional Court, claiming that the Slovenian law on trade unions³ violated ILO Conventions Nos. 87 and 98 as well as Article 76 of the Slovenian Constitution.⁴ The Constitutional Court first had to determine whether making the recognition of the legal personality of the trade union conditional on the registration of its constitution with the competent authority was inconsistent with the principle of freedom of association. And secondly, the Court had to determine whether the most representative trade union could be granted certain rights in the collective bargaining field.

In order to assess the validity of the provisions relating to the recognition of trade unions, the Court referred to ILO Convention No. 87 as a guide for interpreting national law:

 “The State has the right to link the recognition of legal personality to the depositing of statutes with competent State body. In doing so, it is just not allowed to prescribe such conditions as might indirectly interfere with the right to freely establish a trade union. This follows also from article 7 of ILO Convention No. 87.

The ZRSin [the law appealed against] in articles 2 and 3 provides that a trade union shall become a legal person on the date of issue of the decision on the depositing of statutes or other basic charter. The conditions prescribed in reference with the issuance of the decision by the Act are the submission of the charter whose depositing is requested, the presentation of evidence that the trade union has in fact been established, and the proving of the fact that the application has been filed by a person authorized by the trade union. None of these three conditions interferes with the right of each person to establish a trade union, to adopt its statutes together with other persons and to choose representatives of the trade union, nor does any of them prevent the establishing of a trade union. The administrative body merely records the said facts and, on this basis, by means of a decision confirms that the trade union has become a legal person.

The provisions of articles 2 and 3 of the ZRSin are thus not in disagreement with article 76 of the Constitution, nor are they in disagreement with ILO Convention No. 87.”

The Constitutional Court of Slovenia then examined the sections of the law concerning the pre-eminent role granted to the most representative trade unions in the collective bargaining field. To form its opinion it referred both to judgments of the European Court of Human Rights⁵ (Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms)⁶ and to ILO Convention No. 98:

 “One of the fundamental principles of ILO Convention No. 98 is that collective bargaining (negotiating) and concluding of collective agreements is free and voluntary. Consequently, a collective agreement applies just to the parties who have concluded it, unless its universal applicability be prescribed by law. This principled starting point, however, means that the right to the freedom of trade unions cannot be interpreted as if the same guaranteed also the right to the concluding of any collective agreement whatsoever. For such right of the trade union would necessarily presuppose the obligation of concluding a collective agreement on the part of the employers: and this would not be done freely and voluntarily but upon the request of the other contacting party. This is why the Constitutional Court considers that article 76 of the Constitution should not be interpreted in a wider sense than in the case of interpreting article 11 of the European Convention.”

This reference to international instruments as a source for interpreting national legislation enabled the Constitutional Court of Slovenia to find that the State could lay down rules governing the recognition of the legal personality of trade unions, provided that this did not impair the right to freely establish such organizations. The Court also ruled that the State could grant the most representative trade unions a pre-eminent role in collective bargaining. The Slovenian law on trade unions was deemed to be in conformity with the Slovenian Constitution and with the above-mentioned international instruments.