Earlier in 2024, the Supreme Court of Denmark (Højesteret) delivered a judgment in Case 50/2023, Faroese Shipping Association v Government of the Faroe Islands, Ministry of Fisheries and Transport (Føroya Reiðarafelag mod Føroya Landsstýri, Fiskivinnu- og samferðslumálaráðið), in which it ruled that Faroe Islands law that changed the allocation of fishing quotas is compliant with the European Convention on Human Rights (ECHR) and an ILO Convention on collective bargaining (No. 98).
Background and facts
In the Faroe Islands, fishing quotas were allocated by delegated executive orders prior to 2016, upon which, the legislative regime changed. Since, the Barents Sea Auctions Act 2016 – a legislative act of the Parliament of the Faroe Islands (Lagtinget) has allowed for auctions to take place for the sale of such quotas. Under this legal change, it was the owners of the ship who had to pay for the quotas, and not the crew.
The Faroese Shipping Association, until this 2016 act, had operated a practice whereby it had agreements with three different crew organisations, whereby crew members were remunerated with a share of catches as a collective agreement. But this appeared to no longer be possible under the ‘new’ regime.
The essence of the case was therefore whether the Parliament of the Faroe Islands, overriding the collective agreement, was compatible with various provisions of international law, namely:
- Article 11 European Convention on Human Rights (ECHR) (Freedom of assembly and association).
- International Labour Organisation (ILO) Convention No. 98 (Right to Organise and Collective Bargaining Convention),
- Article 1 of the first Protocol, ECHR (Protection of property).
The Faroese Shipping Association claim expropriation, and thus, also constitutes a violation of Article 73 of the Constitution of Denmark (Grundloven) on rights to property.
Not a ‘repeal’ of the collective agreement
The Supreme Court in its judgment ruled that the legislative act of the Parliament of the Faroe Islands had adopted was not a repeal of the collective agreement, but rather,
‘implied that the collective agreement provision could not be applied when distributing profits relating to fishing on the basis of fishing quotas bought at auction, which amounted to only one smaller part of the total fishing quotas‘ (p. 3, free translation).
The relevance of Article 11 ECHR (Freedom of assembly and association)
Article 11 ECHR states,
‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.’
On this point of a potential violation of this provision, the Supreme Court stated there were judgments of the European Court of Human Rights (ECtHR) dealing with limited interventions on a single provision of a collective agreement. But moreover, in any event,
‘it has not been proven that the intervention has had negative economic consequences for the members of the [Faroese] Shipping Association‘ (p. 3, free translation).
The relevance of ILO Convention No. 98 (Right to Organise and Collective Bargaining Convention)
Article 4, ILO Convention No. 98 states,
‘Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.‘
The Supreme Court stated ‘the provision does not prevent‘ (free translation) the application of the 2016 legislative act, without saying much further.
Based on this statement nonetheless, it can be inferred that Article 4 of ILO Convention No. 98 has direct effect in Danish law.
The relevance of Article 1 of the first Protocol, ECHR
Article 1 states,
‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
As for this, the Supreme Court stated,
‘the intervention took place by law and was justified by a factual consideration of, that the crew members did not have to pay for the fishing quotas that the shipowners bought at auction tion, just as the intervention did not go beyond what was necessary to take care of this consideration or was disproportionately intrusive towards the shipowners.’ (p. 4, free translation).
For the Supreme Court, it confirmed that the Faroese law was compatible with Article 1 of the first Protocol, ECHR.
Conclusion
The case was therefore dismissed, with the ultimate finding that Faroe Islands law that changed the allocation of fishing quotas is compliant with the European Convention on Human Rights (ECHR) and an ILO Convention on collective bargaining (No. 98).
The case had previously been adjudicated before the Court of the Faroe Islands (Retten på Færøerne) as Sag BS-51480/2018-FAR at first instance, and on appeal at the Eastern High Court of Denmark (Østre Landsret) as B-46-21.
The judgment of the Supreme Court of Denmark (Højesteret) in Case 50/2023, Faroese Shipping Association v Government of the Faroe Islands, Ministry of Fisheries and Transport, delivered on 6 March 2024, is available here.