Report in which the committee requests to be kept informed of development - Report No 287, June 1993

1. 343. In a communication dated 30 October 1992, the All-Poland Trade Union Alliance (OPZZ) presented a complaint concerning the violation of freedom of association against the Government of Poland. In a communication dated 15 January 1993 the OPZZ provided additional information. The Government sent its observations on this case in communications dated 11 February and 23 March 1993.
2. 344. Poland has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant federation's allegations

1. 345. In its communication of 30 October 1992, the OPZZ states that on 25 October 1990 the Diet adopted the Act on the restoration to trade unions and social organizations of property of which they were deprived following the introduction of martial law on 13 December 1981. It emphasizes that it fully accepts the need to share out the property of the former Central Council of Trade Unions (CRZZ) and to return the financial assets, plus bank interest, belonging to the independent self-governing trade union "Solidarity" (NSZZ "Solidarity"). Under that law, however, it is obliged to return a sum in excess of 75,000 million zlotys, which, in its view, does not correspond to the bank interest rates in Poland; on the basis of the highest interest rates imposed by Polish banks, the amount would be in the order of 7,000 million zlotys.
2. 346. While emphasizing that ever since the re-registration of the NSZZ "Solidarity" in 1989 it has constantly shown its intention to return the financial assets to their legitimate owner, the OPZZ is nevertheless of the view that the application to its disadvantage, pursuant to the Act of 25 October 1990, of an incorrect multiplier for the purpose of revaluing the sum due in zlotys constitutes a flagrant violation of the principles of justice, of the Polish Constitution and of Convention No. 87, and that it limits the application of Convention No. 98.
3. 347. The OPZZ states that the Constitutional Court of the Republic of Poland, to which the OPZZ had introduced a motion referring to the non-conformity of the Act of 25 October 1990 with the Constitution, declared that sections 2(3) and 3 of that Act - relating to the obligation to provide compensation in respect of the wear and tear on property used to satisfy the needs of trade union members - and section 3(1) - concerning the revaluing, by means of a multiplier, of the funds in Polish zlotys to be returned to the trade unions cited in section 1(1) of the Act - fail to conform, respectively, with articles 3(3) and 3(1) of the Constitution.
4. 348. The OPZZ further points out that, in accordance with the Constitutional Act which provides that Constitutional Court rulings concerning the non-conformity of Acts with the Constitution shall be examined by the Diet, the latter decided, on 7 October 1992, not to retain section 2(3) of the Act, in accordance with the ruling. On the other hand, it decided to keep section 3 in force, the full text of this section being as follows (text supplied by the complainant organization):
5. (1) Polish currency deposited in bank accounts shall be subject to restoration to the subjects specified in section 2(1) and (2), following its revaluation. The revaluation is effected by increasing the total sum in keeping with the increase in the average monthly wage of Polish employees - published by the General Office for Statistics - between 12 December 1981 or the day on which the property was actually seized and the day on which the ruling was adopted.
6. (2) Foreign currencies deposited in bank accounts shall be subject to restoration to the subjects specified in section 2(1) and (2), together with interest at the rate of 3 per cent per year, calculated as of 12 December 1981 or the day on which the property was actually seized. The restitution of foreign currencies plus interest may be effected in Polish currency by applying the exchange rate published by the National Bank of Poland for the day on which the ruling was adopted.
   • According to the OPZZ, the decision of 7 October 1992 is aimed at rendering the activity of the legal structures which make up the OPZZ impossible.
7. 349. In its communication of 15 January 1993, the OPZZ states that although the procedural work on the final version of the Act has not yet been completed, the OPZZ and its affiliated organizations have had their bank accounts blocked and are being pressured by the bailiffs, all of which makes it difficult, if not impossible, for them to operate. The OPZZ considers that the authorities are inadmissibly blocking its inalienable right to the exercise of freedom of association, by both limiting and making difficult its enjoyment of that right. The application of the Act of 25 October 1990 - despite the Constitutional Court's recognition of its non-conformity with the Constitution - together with the steps taken by the authorities against the aforementioned organizations are, according to the OPZZ, contrary to Articles 3(2) and 8(2) of Convention No. 87.
8. 350. The OPZZ is of the view that the authorities should now submit to the Parliament the draft amendment on the repeal or modification of section 3 of the Act of 25 October 1990 and, in the meantime, that they should without delay take the necessary steps to halt immediately the application of the Act.

B. The Government's reply

1. 351. In a communication dated 11 February 1993, the Government explains that the aim of the Act of 25 October 1990 is to ensure the restoration to trade unions of the property of which they were deprived following the introduction of martial law. That deprival is incompatible with the Constitution and restrictive vis-à-vis NSZZ "Solidarity" and other trade unions and social organizations. Given that, following the withdrawal of legal status from the NSZZ "Solidarity", a part of its property was allocated both to enterprise trade union organizations set up pursuant to the Act on trade unions of 8 October 1982 and to the OPZZ, these organizations are bound, in accordance with the principles of justice and legality, to return that property to its rightful owners.
2. 352. In its ruling of 25 February 1992 the Constitutional Court deemed this principle, which is established by section 1 of the Act of 25 October 1990, to be in conformity with the Constitution. In giving the reasons for its ruling, the Court emphasized that the constitutional principle on the protection of property takes into consideration first and foremost the owner who has been deprived of his property and not the individual or institution thereby enriched in an unjust manner and therefore incompatible with article 1 of the Constitution. The Government therefore concludes that the Act of 25 October 1990, in so far as its general principle is concerned, is not restrictive in nature and thus contrary to the ILO's Conventions and the Polish Constitution, but that it re-establishes the constitutional right of ownership as well as the equal treatment of trade unions and their freedom of activity.
3. 353. The Government likewise points out that the Constitutional Court expressed the opinion that sections 2(3) and 3 of the Act were not in conformity with the Constitution and that, in accordance with the procedures in force, the Diet put this ruling to a vote and decided on 7 October 1992, in its capacity as supreme legislative body, that section 3(1) of the Act was compatible with the Constitution. Following this final decision, the authorities responsible for implementing the legislative provisions, namely the Social Claims Commission charged with settling the restitution of property covered by the Act and the bodies responsible for execution, would be obstructing the law were they to fail to implement the action ordered in pursuance of the Act.
4. 354. The Government feels that it should be emphasized that the NSZZ "Solidarity", as the beneficiary with respect to the property to be returned, has expressed both its discontent at the slow progress made in that connection and its concern over the difficulties experienced in implementing the restitution of the property. It accuses the Government of being responsible for the present situation and is of the opinion that such slow and inefficient procedures are serving to confer a privileged position on the OPZZ, which continues to hold the property confiscated from the NSZZ "Solidarity", and are thereby obstructing Articles 11 and 3 of Convention No. 87.
5. 355. The OPZZ, by adopting an opposing standpoint, expresses similar allegations concerning the violation of Convention No. 87, considering that the actions of the bodies responsible for execution, which implement the decisions taken by the Social Claims Commission with regard to the return of property, restrict trade union rights by virtue of the fact that they render the activities of the organizations affiliated to the OPZZ either difficult or impossible. The Government states that these allegations are incorrect and that it does not share the opinion of the OPZZ. It considers that the Polish legislation and the actions of the authorities carried out within the framework of the Constitution and of the Acts adopted by the Parliament are not incompatible with the guarantees provided for by Convention No. 87. The Government recalls, moreover, that under Article 8(1) of that Convention, trade unions are obliged to respect the law of the land.
6. 356. In its decision of 7 October 1992, the Diet accepted, in accordance with the ruling by the Constitutional Court, the non-conformity of sections 2(3) and 3 of the Act of 25 October 1990 as regards the obligation to provide compensation in respect of the wear and tear suffered by property that had been used to satisfy the needs of the members of the trade unions mentioned in section 1(1) of the Act. The Government states that, in accordance with section 7(3) of the Act of 29 April 1985 on the Constitutional Court, the Diet is taking the necessary steps to amend the provisions in question.
7. 357. The Government states that the Social Claims Commission has made every effort to take into consideration the manner in which property has been used by the party that is required to return it. The Commission is seeking to persuade the parties to conclude agreements. In over 20 per cent of the cases examined (over 200), the procedures ended with the conclusion of an agreement between the enterprise union organizations affiliated to the OPZZ and the enterprise organizations affiliated to the NSZZ "Solidarity".
8. 358. In a communication dated 23 March 1993, the Government transmits the observations of NSZZ "Solidarity" regarding the allegations of the OPZZ. The NSZZ "Solidarity" begins by pointing out that, during the "Round Table" of 1989, the working group on trade union pluralism took a decision to the effect that the OPZZ would return to the NSZZ "Solidarity" all the property it had received from it, but that, as a result of the determined resistance put up by the OPZZ, that decision was never implemented. It was in response to this situation that the Parliament adopted the Act of 25 October 1990. The OPZZ then engaged in a whole host of manoeuvres in order to avoid returning the property.
9. 359. As regards the ruling by the Constitutional Court, the NSZZ "Solidarity" indicates that the OPZZ had called into question the Act of 25 October 1990 in its entirety, thereby indicating that it considered the acquisition of the property from which it had benefited as being legal, and that it did not consider itself morally obliged to return that property to its rightful owner. What is more, contrary to what the OPZZ would have one believe, the Court decided that only certain parts of two sections of the Act - and only as regards their limited application - were incompatible with the Constitution. The allegation to the effect that the Act of 25 October 1990 will obstruct the trade union activities of the OPZZ proves that this organization only operates thanks to "stolen" property and that it is not carried by the strength of its membership.

C. The Committee's conclusions

1. 360. The Committee notes that the present case concerns certain provisions of the Act of 25 October 1990 on the restoration to trade unions and social organizations of property of which they were deprived following the introduction of martial law on 13 December 1981, particularly as regards its sections 2(3) and 3, taken together, and section 3(1), and as regards the implementation of the Act.
2. 361. The Committee understands that, in accordance with that Act, the complainant organization in the present case, namely the All-Poland Trade Union Alliance (OPZZ), is required to return to the independent self-governing trade union "Solidarity" (NSZZ "Solidarity"), which was dissolved in 1982 under the Act on trade unions, a part of the property which formerly belonged to it, and which the OPZZ had received in accordance with a government decision taken in 1985. The Committee notes in this regard the statements by the complainant organization to the effect that the financial assets formerly belonging to the NSZZ "Solidarity" have been deposited in bank accounts and that it - the OPZZ - fully accepts the need to share out the assets of the former Central Council of Trade Unions and to return the financial assets, together with the corresponding bank interest, belonging to the NSZZ "Solidarity".
3. 362. As regards sections 2(3) and 3 of the Act of 25 October 1990, the Committee notes that they concern the obligation to provide compensation in respect of the wear and tear suffered by property used to satisfy the needs of members of the trade unions referred to in section 1(1) of the Act. The Committee also notes that, in a ruling of 25 February 1992, the Constitutional Court determined that these sections were not in conformity with the Constitution, and that this ruling was accepted by a decision taken by the Diet on 7 October 1992. The Diet has therefore taken the necessary steps to amend the provisions in question.
4. 363. As regards section 3(1) of the Act, which relates to the revaluation of the Polish currency assets to be returned, the Committee notes that it was likewise deemed, under the 25 February 1992 ruling, to be incompatible with the Constitution, but that the Diet did not accept this non-conformity, with the result that this section remains in force.
5. 364. It is this last point which is criticized by the OPZZ, which alleges specifically that under the aforementioned Act, which, it maintains, applies an incorrect multiplier for the purpose of revaluation, it is obliged to repay a sum in excess of 75,000 million zlotys, whereas on the basis of the highest interest rates imposed by the Polish banks the amount would be in the order of 7,000 million zlotys.
6. 365. The Committee notes in this regard that the aim of this section is to ensure the restoration to the former owner organizations, for the benefit of their trade union activities, of the funds which were confiscated from them over a decade ago. It therefore appears justifiable, in order to enable those organizations to recover funds with a value equivalent to that of the funds of which they were deprived, that a multiplier should be applied.
7. 366. The Committee feels that it is not in a position to give an opinion as to the value of the multiplier in question in the present case, considering as it does that this is a matter to be dealt with at the national level, if possible with the agreement of all the interested parties. In that connection, the Committee notes with interest that in over 20 per cent of the cases examined (more than 200) by the Social Claims Commission, the procedures ended with the conclusion of an agreement between the enterprise union organizations affiliated to the OPZZ and those affiliated to the NSZZ "Solidarity".
8. 367. In any case, the Committee expresses the hope that the amendments to the Act of 25 October 1990 will rapidly enter into force so as to give effect to the decisions of the Constitutional Court and the Diet in order to provide the trade union organizations with a complete and definitive legal framework, within which the restitution of the trade union property can be effected with the full participation of the organizations concerned. It requests the Government to keep it informed of any progress made in this respect.
9. 368. The Committee finally requests the Government, the complainant organization and the other interested trade union organizations to continue - both at the present stage and following the anticipated entry into force of the modified provisions of the Act of 25 October 1990 - to make every effort to settle the restitution of trade union property by means of agreements. It requests the Government to keep it informed of any progress made in this connection.