lay judges in labour courts

8/9/2019 Lay judges in labour courts.

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Bristol, Budapest, Ghent, Gttingen,Groningen, Turku, Uppsala

Annual Legal Research Network Conference2!

21-22 October 2010, hosted by the University of Groningen

Uni"ersit# of Ghent, $acult# of Law

%orking &aper Annual Legal Research

Network Conference 2!

La# 'udges in la(our courts

Isabelle Van Hiel, Assistant, University of Ghent,Social a! "e#art$ent, a! %ac&lty,

Universiteitstraat ', (000 Gent, )elgi&$,isabelle*vanhiel+&gent*be

September, 2010


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La# 'udges in la(our courts

Isabelle Van Hiel, Assistant, University of Ghent, Social a!"e#art$ent, a! %ac&lty, Universiteitstraat ', (000 Gent, )elgi&$,

isabelle*vanhiel+&gent*be

Se#te$ber, 2010

A(stract

In )elgi&$ labo&r-related dis#&tes are treated by s#ecialised co&rts

!ith a #artic&lar co$#osition* )esides #rofessional &dges, there are

t!o lay &dges a##ointed by the ing, on the basis of a no$ination

$ade by the e$#loyers. associations and the trade &nions*

/he )elgian labo&r o&rts s#rang fro$ the a#oleonic conseils de

prudhommes* /his syste$ !as abandoned in 1(2, !hen a##ellate

trib&nals !ere established and a legal assessor !as added* In 1(3

inde#endently f&nctioning labo&r co&rts !ere established, !hich

!ere ho!ever constr&ed as being #art of the &diciary* Unli4e

Ger$any, no s#ecialised Sre$e o&rt !as established* Instead,

the )elgian Cour de Cassation !as endo!ed !ith a social cha$ber*

/he choice in favo&r of labo&r co&rts !ith lay &dges, see$s to

re5ects a $aority tendency in 6&ro#e* Also in Ger$any, H&ngary,

%inland, Great )ritain, Ireland and S!eden labo&r-related dis#&tes

are treated by co&rts !ith lay &dges, no$inated by e$#loyers.

associations and trade &nions* In Italy and S#ain se#arate labo&r

co&rts e7ist, b&t they are solely co$#osed of #rofessional &dges*

Vario&s reasons e7#lain lay &dges8 #o#&larity9 they are chea#er

than #rofessional &dges, they #rovide #rofessional 4no!ledge and

e7#erience and they strengthen the con:dence in the instit&tions*

%&rther$ore, they enable citi;ens to servise the f&nctioning of the

&dicial syste$ and contrib&te to the acce#tability of the &dicial

decisions* /h&s, the choice for lay &dges relies also on other factors

than those related to e7#ertise*Altho&gh the f&nctioning of the labo&r co&rts has never been

serio&sly critici;ed, s&ccessive ect* S&ch a design still e7ists

at the #resent day, tho&gh it see$s that a #olitical agree$ent of ?1


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In the 1(0 the #roliferation of bodies having &risdiction for labo&r

and social sec&rity dis#&tes co$#elled for a refor$* Doyal

o$$issioner Van Dee#inghen8s #roect of the ne! Code judiciaire

ai$ed to integrate these bodies !ithin the &diciary* Ho!ever, Van

Dee#inghen did not assign the co$#etence for both civil #roced&resand labo&r la! dis#&tes to a single &dge, li4e the kantonrechter in

the etherlands'* abo&r-related dis#&tes !o&ld be treated in

se#arate cha$bers, b&t !or4ers and their &nions !ere not

convinced that the #roect !o&ld g&arantee s&Mcient #rotection * In

1(3 a co$#ro$ise !as reached* It so&ght to establish

inde#endently f&nctioning labo&r co&rts, !hich !ere ho!ever

constr&ed as being #art of the &diciary* /he chosen o#tion

rese$bles the Ger$an syste$* Let, no s#ecialised Sre$e o&rt

!ith !or4ers8 and e$#loyers8 re#resentatives !as established*

Instead, the )elgian Cour de Cassation !as endo!ed !ith a social

cha$ber !hich is solely co$#osed of #rofessional &dges*

A#art fro$ the social cha$ber of the Cour de Cassation, all )elgian

labo&r trib&nals and co&rts consist of both #rofessional &dges and

lay &dges* In every labo&r trib&nal or co&rt t!o lay &dges are

a##ointed by the ing, on the basis of a no$ination $ade by the

e$#loyers. and !or4ers8 associations* /he no$ination #roced&re

s&bstit&ted the original obective to elect the lay &dges every si7

years !hich in #ractice had ha##ened only t!ice in forty years3and

to !hich Van Dee#inghen !as o##osedC*

2.2 Explaining the choice for lay judges

/he choice in favo&r of labo&r co&rts !ith lay &dges, see$s to

re5ects a $aority tendency in 6&ro#e* Also in Ger$any, H&ngary,

4*N* ASSH6D-VO, E*H*A**


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%inland(, Great )ritain, Ireland and S!eden10labo&r-related dis#&tes

are treated by co&rts !ith lay &dges, no$inated by e$#loyers.

associations and trade &nions altho&gh each legal syste$ has its

o!n #artic&larities for co$#etence, a##eal, access to &stice and

#artici#ation of lay &dges* )y contrast, in Italy and S#ain se#aratelabo&r co&rts e7ist, b&t they are solely co$#osed of #rofessional

&dges*

Ho! can the #o#&larity of lay &dges in labo&r co&rts be e7#lainedQ

In co$#osing co&rts o&t of #rofessional &dges and lay &dges t!o

#erce#tions of fair trail are conciliated9 on the one hand the right to

be &dged by one8s eB&als or #eers, and on the other the right to be

&dged by an i$#artial third #arty* Ehereas in the for$er #erce#tion

the &dge is seen as an eB&al !ith a #ractical 4no!ledge, in the

latter he is considered as a delegate of a sre$e a&thority !hoa##lies the la! by virt&e of his #rofession11* /his #rinci#les not only

in5&enced the labo&r co&rts* In $aority of co&ntries $i7ed syste$s

e7its !ith #rofessional &dges, assisted by assessors !ho are #art of

&diciary, th&s g&arantying the &nifor$ity and eB&ality of the &dicial

f&nction*


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of the &diciary* /herefore, the co&rts are characteri;ed by a s#eci:c

co$#etence and a si$#li:cation of the #roced&re12* /his can clearly

be seen in labo&r co&rts as the :nality of labo&r la! to co$#ensate

for ineB&ality leaded to s#ecial feat&res li4e a right of the !or4ers

and e$#loyers to defend the$selves, the right of the !or4er to bere#resented by a &nion delegate and #ro#er r&les of #roced&re

!hich ai$ at $a4ing the access to &stice easier and less

e7#ensive1?*

)* %DL"


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and e$#loyers8 organisation re$ain vigilant as the election !inning

%le$ish se#aratist #arty, -VA, ref&sed to endorse the


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a#art$ents in the Stoc4hol$ region &s&ally co$#rise a negation

cla&se $a4ing the rent de#endable of an agree$ent bet!een a

local landlords8 and tenants8 &nion* /he a##licant !as dissatis:ed

!ith the rent and the co$$ission of 0*? Y on the rent he had to #ay

to the tenants8 &nion, so he #ro#osed to the landlord the concl&sionof a ne! agree$ent !ith a :7ed rent and no negation cla&se* Since

his o>er !as reected, the a##licant bro&ght the dis#&te before the

Dent Devie! )oard !hich !as co$#osed of a &dgeRchair$an and

t!o lay assessors, no$inated by the S!edish %ederation of Nro#erty

O!ners and the ational /enants8 Union* /he a##licant challenged

the t!o lay assessors8 obectivity and i$#artiality, b&t the challenge

!as reected* He a##ealed in vain to the Ho&sing and /enancy

o&rt, a body !ith a si$ilar co$#osition of t!o &dges and t!o lay

assessors, and to the Sre$e o&rt*

)efore the 6&ro#ean o&rt of H&$an Dights the a##licant arg&ed

that the #ro#osal to delete the negotiation cla&se fro$ the lease

threatened the interests of both organisations since they derived

their very e7istence fro$ rent negotiations* )oth the o$$ission

and the o&rt follo!ed his arg&$entation* /he o&rt noted an

a##earance of #artiality as the lay assessors had been no$inated

by, and had close lin4s !ith, t!o associations !ith an interest in the

contin&ed e7istence of the negotiation cla&se* /herefore, the

a##licant co&ld legiti$ately fear that they had a co$$on interest

contrary to his o!n and that the balance of interests, inherent in the

Ho&sing and /enancy o&rt8s co$#osition in other cases, !as liable

to be set !hen the co&rt ca$e to decide his o!n clai$ @W ?*

/his o&tco$e $ay loo4 so$e!hat s&r#rising* /he o&rt e$#hasises

that there is no reason to do&bt the #ersonal i$#artiality of lay

assessors* evertheless, it $a4es an association bet!een the

no$ination by an organisation and the e7istence of close lin4s !ith

that organisation* S&bseB&ently, this no$ination is #res&$ed to be

a #re&dice, beca&se of the a##earance of i$#artiality it co&ld

create* %&rther$ore, the o&rt ignored the fact that the t!o lay

&dges !ere co&nterbalanced by t!o #rofessional &dges, of !hich

the #resident has a casting voice in case of no $aority decision,

and the absence of instr&ctions by the organisations !hich have

no$inated the lay &dges, !ho sit in their #ersonal ca#acity, and not

as re#resentatives of the organisations*

In a rare co$$ent on the case, =* A"D6ES observes the &nderlying

recognition of the o&rt !hich #erceived the t!o associations to

have a vested interest in the e7isting negotiation #roced&re since

they derive their e7istence fro$ the #rocess of negotiation !hile this

C


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#roced&re is dis#&ted* /he a&thor ass&$es that in other dis#&tes,

li4e the level of rent, the balanced re#resentation !o&ld be a fair

one* He lin4s the case to the established &risdiction of the o&rt

!hich has, even !hen there is no reason to believe that individ&al

assessors in case !ere biased, re#eatedly recognised that the iss&eof i$#artiality $&st be $eas&red not only in the s&bective conte7t

of the &dge in the given case, b&t also it $&st be s&bected to an

obective test see4ing to ens&re that there are s&Mcient g&arantees

to e7cl&de any legiti$ate do&bt res#ecting the iss&e of i$#artiality*

/h&s, it can be constr&ed as an elaboration of the o$$on la!

#rinci#le thatjustice must not onl$ be done) but must be seen to be

done20*

)e that as it $ay, the o&rt $&st have sensed that it s4ated on thin

ice as !ith this rigid inter#retation of the #rinci#le of i$#artiality allnational co&rts !ith lay assessors !hich are no$inated by social or

econo$ic associations !ere $enaced*

onseB&ently, in a $ore recent &dge$ent of 2 October 200',

Kellermann v. Sweden the o&rt e7#licitly disting&ished fro$

Langborger v. Sweden* In this case the a##licant co$#any alleged

that, on acco&nt of the co$#osition of the abo&r o&rt, it did not

have had a fair trial hearing by an i$#artial trib&nal, as reB&ired by

Article W 1 of the onvention* /he co$#any, !hich !as not a$e$ber of any e$#loyers8 organisation and had ref&sed to sign an

agree$ent of its o!n, instit&ted #roceedings against the &nion O

!hich had ta4en ind&strial action, clai$ing that this ind&strial action

!as &nla!f&l* )efore abo&r o&rt, the a##licant co$#any

challenged its co$#osition of t!o legally trained and B&ali:ed

&dges and :ve lay assessors, t!o of !hich had been no$inated by

e$#loyers8 associations and t!o by e$#loyees8 associations* /he

challenge !as reected by a bench of the abo&r o&rt co$#osed of

$e$bers not re#resenting labo&r $ar4et interests and by theSre$e o&rt*

)efore the 6&ro#ean o&rt of H&$an Dights the a##licant co$#any

challenged the obective i$#artiality of the abo&r o&rt, arg&ing

that one of the lay assessors !as a $e$ber of O and that all lay

assessors have had a @co$$on interest !hich con5icted !ith its

interests* As in the Langborgercase, the o&rt e7a$ined !hether

the balance of interests in the co$#osition of the abo&r o&rt !as

set and, if so, !hether any s&ch lac4 of balance !o&ld res&lt in

20 =* A"D6ES, FI$#artial trib&nals in S!edenJ, &.L. #ev. 1((0, 1@1, #*('-(*

(


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the co&rt failing to satisfy the reB&ire$ent of i$#artiality in the

deter$ination of the #artic&lar dis#&te before it* /he o&rt :rst

notes that one of the fo&r lay assessors disagreed !ith the

$aority8s :ndings, so it co&ld not be said that there !as an interest

co$$on to all for lay assessors* %&rther$ore, the o&rt consideredthat the nat&re of the dis#&te bet!een the a##licant and the &nion

!as s&ch that the lay assessors8 interests co&ld not be contrary to

those of the a##licant and it !o&ld be !rong to ass&$e that their

vie!s on these obective iss&es !o&ld be a>ected by their belonging

to one or other of the no$inating bodies @W 3*

S* GUIHAD" #oints o&t that the o&rt initially had acce#ted an

obective conce#t of i$#artiality, b&t that over the years it

orientated itself to!ards a $ore s&bective a##roach in !hich the

a##earance no longer s&Mces to constit&te #artiality21

*


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that his #resence is co&nter-balanced by the #resence of the lay

&dge no$inated by the e$#loyers8 organisation*

%o&r years later, the lay &dges in the labo&r trib&nals and co&rts

!ere again challenged in dis#&tes abo&t the election of !or4s

co&ncils* /his ti$e, their !ithdra!al !as not as4ed by e$#loyers,b&t by $e$bers of the #olitical #arty Vlaa$s )elang* /he latter

s&cceeded the Vlaa$s )lo4, !hen so$e of his re#resentatives had

been convicted for racis$* /he $e$bers contested the ref&sal of

their e$#loyer to acce#t the$ as candidates for elections of !or4s

co&ncil* In )elgi&$, only candidates no$inated by trade &nions can

be eligible for the !or4s co&ncils, !hile trade &nion #olicies tend to

e7cl&de active $e$bers of Vlaa$s )elang fro$ $e$bershi#* As

candidate lists has to be #ost by the e$#loyers, the Vlaa$s

)elang too4 advantage of this #roced&re to B&estion the trade &nion#rerogatives, !itho&t calling the trade &nions into the case, as is

foreseen in dis#&tes concerning the election of !or4s co&ncils2?*

)efore the abo&r /rib&nals of )r&ssels, )r&ges and /ongres co&ld

treat the cases, the abo&r o&rts of )r&ssels, Ghent and Ant!er#

had to decide on the de$and to !ithdra!n the lay &dges

no$inated by the !or4ers8 organisations on the gro&nds of an

a##earance of #artiality and high level of hostility*

/he abo&r o&rts of )r&ssels2' and Ghent2 considered the

de$ands in a di>erent co$#osition, !ith lay &dges no$inated byorganisations of self-e$#loyed #eo#le instead of !or4ers8

organisations* )oth co&rts reected the de$and to !ithdra! the lay

&dge* /he abo&r o&rt of Ant!er# !as co$#osed in a nor$al !ay,

!ith t!o lay &dges, one of !hich !as no$inated by a !or4ers8

organisation* As the !ithdra!al of this lay &dge !as de$anded, the

B&estion !as transferred to the Cour de Cassation*

i4e the abo&r o&rts of )r&ssels and Ghent, the Cour de Cassation

!as convinced that there !ere no reasons to !ithdra! the lay

&dge2* /he o&rt fo&nd no gro&nd in the legislation to !ithdra! thelay &dge since this no$ination is #rescribed by the Code judiciaire*

/here co&ld be no #roble$ of i$#artiality, beca&se the lay &dge

e7ercises his &dicial f&nction inde#endently and is no

23 /he cases are disc&ssed at length in I* VA HI6, FEaaro$ alleenre#resentatieve !er4ne$ersorganisaties 4andidaten bi de socialever4ie;ingen $ogen voordragenJ, -r.200(, nr* , 12-1?C*24Arbh* )r&ssel, 2( a#ril 200C, A*D* nr* 0*CC0 and Arbh* )r&ssel, 2( a#ril200C, A*D* nr* 0*CC1*25

Arbh* Gent 2( a#ril 200C, A*D* nr* 0CR0C?*26 ass* 2 &ni 200C, A*D* nr* *0C*021* ass* 2 &ni 200C, A*D* nr**0C*021**

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re#resentative of one of the !or4ers8 organi;ations* /he o&rt

denied the e7istence of a high level of hostility bet!een the lay

&dge and the a##licant as there !as no #roof of any #ersonal

hostility of the lay &dge*

It has to be noted that altho&gh the &dg$ents of the 6&ro#eano&rt of H&$an Dight !ere enlisted in the #roced&res, both the

labo&r co&rts and the Cour de Cassation ca$e to a di>erent

concl&sion, !hich !as obvio&sly in line !ith the #osition held by the

S!edish Sre$e o&rt in the Langborgercase*

. /u**ar# and conclusions

In )elgi&$ labo&r-related dis#&tes are treated by s#ecialised co&rts

!ith a #artic&lar co$#osition* )esides #rofessional &dges, there aret!o lay &dges a##ointed by the ing, on the basis of a no$ination

$ade by the e$#loyers. associations and the trade &nions* /his

$odel can be fo&nd in $any other 6&ro#ean co&ntries, li4e %inland,

Ger$any, Great-)ritain, H&ngary, Ireland and S!eden* ay &dges

can be seen as internal e7#erts, b&t that is not their only role* /heir

#ro7i$ity to the belligerents is &st as i$#ortant* Let, this #ro7i$ity

co&ld raise B&estions abo&t their i$#artiality* If i$#artiality is

de:ned as the absence of an a##earance of i$#artiality, a

no$ination by an organisation co&ld easily give ca&se to s&s#icion,even in the absence of any #re&dice by the lay &dge !ho is no la#

dog of the organisation !hich has no$inated hi$* /his a##roach

co&ld easily discredit an instit&tion already challenged by a #&rs&it

of &nifor$ity and legal #rofessionalis$* Ulti$ately, it ignores the

advantages and acco$#lish$ents this instit&tion has for both

!or4ers and e$#loyers* FIn a de$ocratic &dicial syste$ it $&st be

ad$itted that &stice is done by #rofessional &dges, assisted by non

#rofessional &dges, co$ing fro$ organisations defending o##osite

interests and !ho in a collegial !ay give a sol&tion to a con5ict thatis ada#ted to realityJ, li4e the labo&r trib&nal of ivelles said23*

27 /his is a translation of the %rench te7t*

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lay judges in labour courts

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