Informe definitivo - Informe núm. 246, Noviembre 1986

1. 105. The complaint appears in the communication from the National Confederation of Labour (CNT) dated 21 March 1986. The CNT furnished further information in a communication dated 26 April 1986. The Government replied in a communication dated 29 May 1986.
2. 106. Spain has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), and the Right to Organise and Collective Bargaining Convention, 1949 (No.98).

A. The complainant's allegations

1. 107. The complainant alleges that some provisions of Act No. 4/1986 dated 8 January 1986 concerning the assets belonging to the trade unions infringe the principles of freedom of association. The complainant explains that the above-mentioned Act encompasses the legal definition of two extraordinarily important sets of assets as well as their distribution by adjudications or acts or devolution. The first kinds of assets are referred to as the accumulated trade union heritage and comprise the property, rights and obligations pertaining to the former Trade Union Organisation and other trade union bodies which existed before the present system. Their value is greater than 45,000 million pesetas. The second kinds of assets are called the historical heritage by the Act and comprise the property, rights and assets which were confiscated for political reasons during the Spanish Civil War from the Trade Union Organisation or affiliated bodies or trade union associates which existed at that time. Their value is greater than 10,000 million pesetas.
2. 108. With respect to the accumulated trade union heritage, the complainant organisation makes the following objections to the Act:
   • - The term "third parties" used in section 2 of the Act implies the exclusion from the historical heritage of the trade union movement of all assets of trade union origin or nature which have already been consolidated legally in the power of the third parties whether individual persons or bodies corporate, public or private.
   • - The constant reference made in the Act (sections 4.2, 5.1, etc.) to "the other legal regulations" may pose serious dangers to the principle of freedom of association. Indeed, the final sentence of section 4.2 of the Act states that the purpose of the adjudications is to comply with the functions entrusted by the Freedom of Association Act and by "the other legal regulations" to the most representative bodies, a concept which has been dealt with by the ILO on a number of occasions, and always in a restricted sense.
   • - It is extremely dangerous that the omnipotent and decision-making body responsible for issuing administrative certificates of registration of assets in the Property Register in the name of the State and all administrative acts relating to their management, adjudication, alteration and annulment should be the Ministry of Labour and Social Security (sections 1.3 and 6.1). Whilst it is not advisable to establish a mechanism which may be objectively accused of being potentially arbitrary, since a body of such political importance as the Ministry of Labour and Social Security, which is so closely linked at the present time to a specific trade union central organisation, is made both judge and jury, it is even less advisable to use such a formula as that expressed above, which clearly incorporates furthermore the criterion of exclusion since only the most representative trade unions and employers' associations will be members of the Advisory Committee of section 6.2: the dangerous and arbitrary nature of these provisions is evident and the Administration has made itself at the same time both judge and jury.
   • - Section 7 allows the State Administration to replace some of the real estate included in the accumulated trade union heritage by assets of equivalent value. In the same way the State Administration may substitute real estate included in the accumulated trade union heritage by assets of equal value belonging to other persons. That is to say the State Administration may proceed in such an important matter by replacing and substituting real estate in the most unconditional manner.
   • - The transitional provisions of the Act make it possible to legalise all adjudications of real estate of the former Spanish Trade Union Organisation and similar bodies, made - as recognised by the Act itself in point 2 of the preamble - without a general statutory framework to regulate them properly. These arbitrary adjudications made by the Spanish Administration in the period between 1978 and 1986 have been the subject of a large number of rulings by the Spanish courts against the Administration; special mention should be made of the conclusive rulings of the Audiencia Nacional (National Court) of 2 April 1980, fully confirmed by the Supreme Court on 3 October 1980 - and the extremely important ruling of the Constitutional Court of 16 November 1983, which have been disregarded by the Administration. An attempt is now being made to "legalise" this plethora of arbitrary situations by the transitional provision of the present Act, whereas a simple resolution issued by the Ministry of Labour and Social Security itself would be sufficient.
   • - Especially serious in its consequences for the principle of freedom of association is the second additional provision which authorises the Government to issue regulations respecting Act 4/1986, and which may even include rules to determine that the adjudication of the historical heritage of the trade unions refers only to real estate. This additional provision involves a double infringement: firstly, there is a delegalisation and consequently a return to the previous highly unsatisfactory situation since, in future, there will simply be a regulatory standard and, secondly, the Government is permitted to restrict adjudications to only fixed assets by means of a simple subordinate standard of a regulatory nature. What will happen to the extremely important rights, bank accounts, shares, moveable property, deposits, etc. of the former Trade Union Organisation and the former trade unions and other trade union bodies?
   • - Act 4/1986 uses the term "most representative" with purposes and results which discriminate against certain trade unions. It is clear that the content of sections of the Act in which the expression "most representative" appears (3, 4.2, 5.2, 5.4 and 6.2 in addition to the concordant sections), is evidence of a restriction which does not contain or offer arguments in support such an arbitrary approach since the discrimination is evident if the above-mentioned sections are analysed in depth. The so-called "preference" to which section 3 refers lacks all justification, especially if account is taken of the fact that not even the concept itself states that "the remainder" of the accumulated trade union heritage will be handed over to bodies which are not "most representative". Section 4.2 appears to include only the most representative bodies and, more seriously, the rule appears to consider them completely incapable of fulfilling the functions resulting from their status as representative trade union bodies. In section 5.2 there is a further failure to respect the framework in which the most representative bodies should operate and, moreover, it is not said what will happen to the assets handed over to these bodies if they cease to be most representative: do they revert to the State or may they be re-adjudicated? Section 5.4 once again destroys a non-existent equilibrium: if, as noted above, the least representative organisations are not going to be awarded even the most insignificant adjudications, this non-existence of such adjudications would be corroborated, if there were any doubt in this respect, by the distribution or adjudication of assets in accordance with a geographical criterion which ensures the "global most representative status" of all the major trade union organisations. All the above affects the ranking of the trade unions and as is to be expected all the adjudications made of the accumulated trade union heritage will benefit exclusively those situated higher up in this ranking and will place them in a better position than the other organisations to offer better services to the workers, over and above any criterion which takes into consideration the proportional nature of the results of elections without the intention of exclusion. Furthermore, this may result in persuasion or indirect pressure being brought on workers to join specific trade unions. The complainant believes that all trade unions, in so far as they all fulfil the same functions, should be adjudicated assets of the same category although undoubtedly in proportion to their representative nature, without preference being given of any kind, whether as regards time or the quality of the real estate assigned, especially if, as is probable, such preference is given on an exclusive basis.
   • - Act 4/1986 infringes the principles of freedom of association by disregarding international conventions and treaties signed by Spain and which interpret the concept of the most representative union. In particular it infringes the resolutions, recommendations and reports of the ILO on the above-mentioned concept.
3. 109. With regard to what is called the historical heritage, the complainant organisation makes the following objections to the Act:
   • - The Act does not provide a detailed description of assets and rights which were confiscated for political reasons during the period of the Civil War. As a result it is impossible to know what property and rights were at the time subject to confiscation, their registration record or the economic value to be given to them by the present Government on a discretionary basis. In this context the Government, State and Administration are bound to become both judge and jury to the detriment of the need for minimum legal security which is essential in such a delicate matter.
   • - Furthermore, it is surprising that Act 4/1986 makes absolutely no provision respecting the form, methods, time-limits, supervision and financing of an inventory of the historical heritage. There is not even any obligation for the Administration to do so. In the same way the Administration would not be obliged to transmit such an inventory to the interested parties should it be established.
   • - The burden of proof is placed upon the trade unions whose assets were confiscated and in each case the trade union concerned must prove that it was the owner of the asset at the time of confiscation and this proof, which is extremely complex and costly to establish, must meet with the approval of the Administration.
   • - In the same way, as can be seen from point 5 of the preamble of Act 4/1986, the complainant trade union must establish or prove that it is the legitimate successor of the trade union which existed at the time, with the term "successor" being used in the sense in which it is employed in numerous reports of the ILO Committee on Freedom of Association. It is easy to see that the twofold subjective and objective conditions established by point 5 of Act 4/1986 will be met much more easily by the central trade union which is closest politically to the State Administration which is carrying out the devolution of the considerable assets which constitute the historical heritage.
   • - Despite the enormous economic and real importance of Act 4/1986 - since its interpretation, implementation and regulation will determine the ranking of trade unions in Spain for a long time to come - the Act is part of a process which began in 1978 which, whilst having proved positive as regards the constitutionalisation of the basic right of freedom of association, has had negative results as regards the attempts to eliminate ordinary trade unions (those which are not "most representative") by the following methods:
     • a) by providing for the use of real estate in an arbitrary manner and without any legal framework, as established expressly by Act 4/1986 in point 2 of the preamble, from 1978 to the date of the present complaint. The above-mentioned adjudications have been made despite the fact that on 2 April 1980 the Audiencia Nacional (National Court) issued a ruling which upheld the appeal lodged by the unitary trade union under administrative law by establishing: "that the adjudication of the use of premises to some trade union organisations and not to others, without the observance of objective criteria, is contrary to freedom of association and, in particular that of the unitary trade union, in so far as it may favour or prejudice one trade union at the expense of another. That the Administration should cease this discriminatory treatment by adopting appropriate measures". This ruling of the Audiencia Nacional (National Court) was confirmed on 3 October 1980 by the Supreme Court but both rulings have been completely ignored;
     • b) by attempting to divide major budgetary allocations between only the "most representative" trade unions. Such attempts were thwarted by the Audiencia Nacional (National Court) in a ruling dated 7 July 1984. It was, however, necessary for the Ombudsman, for three consecutive years following the above-mentioned ruling, to lodge an appeal of unconstitutionality against the systems used for dividing the amounts allocated by the general budgetary laws of the State before it was finally and clearly established that budgetary credits should not be distributed to the majority trade unions alone to the exclusion of ordinary trade unions;
     • c) by the failure to observe the ruling of the Constitutional Court of 16 November 1983 which stipulates textually: "to declare the right of the CNT not to suffer discrimination in its right to freedom of association in the adjudication in the use of premises of the Institutional Socio-Occupational Services Administration (AISS).
     • d) by approving - before the regulation of Act No. 4/1986 and the initiation of the work of the Advisory Committee set up by the Act and which is moreover based on the principle of exclusion - the full distribution of the accumulated trade union heritage by agreements adopted on 28 January 1986. These agreements, which have been described in detail by newspapers, have paradoxically not been communicated to the CNT although they have been requested both verbally and in writing;
     • e) the State Administration is carrying out registry searches, financial valuations and inventories of the historical patronage although it does not communicate the results of these activities to the National Confederation of Labour despite the express request by this central trade union organisation. All the work undertaken by the Administration with a view to determining the contents of the historical heritage - despite the fact that such work is financed by funds provided by the general state budget - benefits only the central trade union organisation which is closest to the policy of the Government and which is the only organisation which has access to all the above-mentioned work. Once again a "group of beneficiaries" is established composed of the Government, the Administration and the central trade union organisation which is closest to them, and this group constitutes both judge and jury in the process of the devolution or restoration of assets the final value of which can be put at around 15,000 million pesetas.
   • 110. In conclusion, the complainant organisation requests that the appropriate recommendations be made to the Spanish Government to amend Act No. 4/1986, dated 8 January, respecting the adjudication in the use of assets of the accumulated trade union heritage and to amend the administrative practice which is tending to eliminate ordinary trade unions. The CNT also asks that a formal request be addressed to the Spanish Government to make available the inventory and valuation of the historical heritage confiscated from the CNT during the Spanish Civil War, as well as the inventory work already carried out on the accumulated trade union heritage.

B. The Government's reply

1. 111. The Government states that it is not correct that the term "third parties" used in section 2 of the Act implies that the assets which have been legally consolidated in the hands of third persons will be excluded from the historical heritage, since the text itself refers to what is called the accumulated trade union heritage which, as pointed out in the preamble of the same Act, endeavours to remedy the present lack of co-ordination by applying a uniform and coherent treatment to the problem of the original trade union assets. For this purpose, the concept of accumulated trade union heritage which has been consecrated by trade union practice and reflected in international texts comprises two major sets of assets: the estate of the Trade Union Organisation itself and that of various bodies with their own, private, separate and exclusive assets, all of which are covered by the elemental principle of legal security which requires that titles previously consolidated in the power of third parties, whether individual persons or bodies corporate, public or private be duly protected. In this way, a special legal and administrative scheme has been established for adjudications to trade unions and preferably to the most representative trade unions in proportion to their representative status; such adjudications are of a limited, gratuitous and above all causal nature, and with the teleological criterion or the use to which the assets and rights were originally put, serving as a guide-line to their legal definition, a criterion which was emphasised by the Committee on Freedom of Association of the ILO, in particular as regards Case No. 900.
2. 112. The Government adds that the use of the criterion respecting the most representative trade union conforms to principles which are very clear, peremptory and democratic, since the specific legal system governing trade union assets incorporated in the state heritage is limited by the use to which the assets assigned to trade unions and employers' organisations are put, in accordance with various subjective, objective and formal elements or activities, as indicated below:
   • a) Subjectively, use of the assets may be assigned to trade unions and employers' organisations provided that they are the most representative, in accordance with provisions of the Workers' Statute and the Freedom of Association Act, with preference being given to trade unions over employers' organisations, bearing in mind the nature itself of both parties.
   • b) Objectively, assets may be both fixed and movable and may be any of those forming part of the state heritage, a fact which refutes the argument of the CNT which appears to confuse both types of assets and which anticipates future developments by attributing to the Government the intention of excluding, during the regulation of the Act, any asset which is not of a fixed nature, a matter which will be dealt with in the context of the historical heritage.
   • c) From the formal point of view, the adjudication of the use of assets will be made without charge and for a limited period of time, i.e. that of the mandate resulting from the trade union elections. The adjudication will establish a real administrative right which is not transferable, and which is granted under a specific administrative procedure (necessarily exercised by a direct management body) which establishes the mode of operation, membership and the necessary legal framework enabling the Advisory Committee to carry out its work. The latter will give preference to the most representative organisations, thus avoiding what the CNT alleges, namely that the Administration is both judge and jury and thereby respecting the principles enshrined in the Constitution (article 9.2) by establishing that it is the responsibility of the public authorities: to promote conditions to ensure that the freedom and equality of individuals and groups are real and effective, to promote the elimination of obstacles which hinder or prevent them, and facilitate the participation of all citizens in economic, political, cultural and social life.
3. 113. With regard to the objection to section 7, concerning the possibility of substituting real estate with other assets of equal value, the Government states that it is not necessary to make further comments, since this kind of procedure will be rendered necessary by the operation of the system which will however be carried out under the control of the Advisory Committee and not at the sole discretion of the Administration.
4. 114. The Government states that there is no doubt respecting the need to legalise the adjudications in the use of assets already made with all the necessary guarantees. However, in this context an accusation has been made which deserves special attention respecting the failure by the Administration to observe legal rulings and, in particular, the very important ruling of the Constitutional Court of 16 November 1983 which has been misused by the CNT to strengthen its argument, and which is directly related to the concept of the most representative trade union implicitly questioned throughout the complaint. There are no grounds for speaking of a failure to respect the above-mentioned Ruling No. 99 given the contents of the ruling and the arguments of the Constitutional Court itself, since it expressly and forcefully rejects the claim that the ruling orders the Administration to respect its provisions and that it renders null and void the adjudications in the use of assets already made. It does not appear that the Administration is required to implement and comply with the ruling to a greater extent than that to which it has been done so since the text is simply a statement of rights and not an order to take or not to take specific action. It refers to the right of non-discrimination in the distribution of assets which, in no case, will mean the right to receive assets in a positive sense, but rather not to be excluded unjustly from the distribution made on the basis of the oft-repeated objective and reasonable criterion of the most representative trade union as a causal factor in the adjudication of the use of assets to trade unions, irrespective of the possible internal disputes or splits within the CNT and with account being taken at all times of the results of the last held elections, published by a resolution of the Directorate General of the Mediation, Arbitration and Conciliation Institute (IMAC) dated 10 March 1983. It can be seen from this resolution that the CNT does not appear amongst the most representative trade unions but that under the heading "Miscellaneous", where it appears with 107 delegates and subsequently under the heading "Miscellaneous. Autonomous Community - Basque Country", with a total of 27 representatives, which shows that the representative nature of this central trade union organisation is low if a comparison is made between the number of its delegates elected and the total number of delegates elected (140,770), thus making it an almost marginal organisation within the body of minority trade unions.
5. 115. Following this line of argument, the Government believes that it must refer to the constitutional doctrine in this respect, since it cannot ignore two principles deriving from the same constitutional text, the compatibility of which must be guaranteed: that of freedom of association, which derives from article 28.1 and the promotion of trade union action which is related to article 7 and which would be hindered by a defence at all costs of the former. The problem therefore is one of limits, as the CNT itself has recognised, which does not reject the existence of the most representative trade unions or the attribution of specific prerogatives, a matter which is established by jurisdictional jurisprudence which in no way has rejected the concept (as in Rulings Nos. 53/1982 dated 22 July, and 65/1982 dated 10 November) concerning the most effective defence of the workers' interests which would be seriously prejudiced by an excessive fragmentation of trade unions. Only to the extent that specific functions or prerogatives are recognised to a trade union and denied to others does there arise a problem which, in the present case, does not exist, since as regards the representative status required to obtain a temporary adjudication of the use of public real estate, the Act simply recognises such a capacity to the most representative trade unions and does not include any exclusive regulation in this respect. The status itself of being the most representative trade union supposes a difference in treatment, the constitutional nature of which, according to ILO doctrine and constitutional jurisprudence, is subject to a series of concurrent prerequisites, all of which are contained in the Act: the absence of discrimination; the use of objective criteria; and the limitation of the consequences related to the concept of most representative trade union. These criteria were examined by the Constitutional Court in the two above-mentioned rulings which establish that such criterion must be objective in their nature and be based on elements which do not give rise to partiality or abuse. The fact that Parliament, with account being taken of the aims which it alone is empowered to establish, has decided to strengthen trade union activity by the extension of a system of the most representative trade union is a political judgement which cannot be controlled legally without infringing the equality of treatment of those concerned and there is no reason to beleive that this will occur in this case, since the concept of the most representative trade union is not the only criterion and non-representative organisations are not excluded since they may obtain this status in future elections on the basis of an entirely objective principle, namely the will of the workers which will ensure the defence of their general interests in each specific sphere of activity against the possible and undesirable fragmentation of trade unions. Furthermore, although the concepts of equality and freedom of association may in some cases overlap, they are separate principles which do not exist in a relationship of dependency.
6. 116. The Government points out that the Constitutional Court itself establishes, in the legal grounds for the oft-repeated ruling, that the granting of the use of premises to trade union central organisations for the exercise of their competent functions cannot be considered an infringement of freedom of association provided that the unconditional nature of the adjudication does not suppose any influence by the Administration in the necessary freedom for the establishment and development of their activities, and that such an adjudication of use is a means which the State believes will encourage the exercise of the function which, in a democratic regime, is assigned to trade unions to the benefit not only of the interests of the workers but of those of the public in general which want strong trade union organisations endowed with sufficient means of action, the only limitation being that the different treatment should not be discriminatory or irrational. The CNT has not requested the use of premises on an equal footing with the beneficiaries but rather, as a matter of course, the review of adjudications already made and a subsequent declaration of their nullity. The adjudications taken on an individual basis and their possible future ratification cannot be detrimental to freedom of association since theoretically an infringement would not occur as a result of the adjudication in the use of assets to specific trade union central organisations but only if they were made on an exclusive basis. A clear demonstration that this is not so can be seen in the policy of subsidies in which minority trade unions participate on the basis of a schedule determined by the number of delegates, a reasonable and valid procedure for assessing their membership. Thus, in accordance with the results of the 1982 elections, a large number of subsidies were processed during the budgetary years of 1983, 1984, 1985 in which the CNT was assigned the following amount: 1983 - 2,201,153 pesetas; 1984 - 2,377,246 pesetas; 1985 - 2,543,655 pesetas; 1986 - 2,747,146 pesetas. This trade union organisation lodged an appeal against these subsidies and obtained favourable rulings from the Audiencia Nacional (National Court) (16 October 1982) and the Supreme Court (28 February 1983), which were subsequently declared null and void following a request for protection lodged by the UGT and CCOO central trade unions with the Constitutional Court, Ruling No. 102/83 dated 18 November.
7. 117. In the same way, the Government states that the complainant organisation has put forward hazardous conclusions which clearly failed to respect the truth as regards the supposed distribution of the accumulated heritage on an exclusive basis, since although it is a fact that a tripartite meeting was held between the Administration and specific employers' and workers' organisations, such a meeting could be included within the generic concept of acts of a preparatory nature which have no juridical significance as regards the effective adjudication of use of assets. The purpose and basic objective of this meeting was the urgent need to implement without further delay the Act respecting the adjudication of the accumulated trade union heritage by means of the appropriate regulation of the Act and with the Administration being informed of specific preferences having been established by the different organisations which will presumably form part of the Advisory Committee to be set up by the Act, in accordance with the oft-repeated objective criteria of the most representative union and in a desire to find just solutions in the future. As regards the Advisory Committee, account should be taken of the material impossibility of including representatives from each and everyone of the trade union organisations which exist in Spain today.
8. 118. The Government points out that the allegation that the Administration is carrying out registry searches, financial valuations and an inventory of the historical heritage without communicating this information to the CNT is to say the least a hazardous one and does not accord with the real facts since this central trade union organisation had access, and exercised this right, to the documents which form part of the inventory of the historical heritage being drawn up and which is not yet complete. For some time they were able to review freely all the data which the Ministry of Labour and Social Security possesses. Account should also be taken of the extraordinary complexity involved in the devolution of this heritage. The long period of time which has elapsed, the disappearance of documentary evidence, changes which have occurred in the buildings, the transfer of a large part of these assets, etc. involve numerous difficulties which could make it impossible and unjust to follow a rigorous criterion which would oblige the trade unions concerned to carry out an exhaustive assessment of their historical heritage. The Act refers to the devolution of confiscated assets subject to a twofold condition, both subjective and objective: the first concerns trade unions which claim to be the legitimate successors of organisations which existed at the time, with the expression "successor" being used in the sense employed in the numerous reports of the ILO Committee on Freedom of Association, whilst the objective conditions refer to the confiscated assets themselves or the compensation of their value in cases where their devolution is not possible because they have passed into the hands of third parties or disappeared or have suffered substantial alterations.
9. 119. With reference to the matters concerning the historical heritage, the Government points out that Act No. 4/1986 establishes its contents, with provision being made for the full devolution of assets and rights to those workers' trade unions which show that they are the legitimate successors of the organisations from which they were confiscated and, in the event that their devolution is not possible for the above-mentioned reasons, financial compensation will be paid for their value with account being taken of the present market conditions, i.e. their current market value. The Government cannot accept the accusation concerning the arbitrary behaviour of the public authorities and the legal insecurity in this respect since each trade union whose assets have been confiscated can and should present its claims and provide any proof admissible in law and the Administration will be obliged to restore the assets concerned or pay compensation. An inventory of real estate is being drawn up on the basis of available data and is now virtually complete. According to this inventory, the historical heritage comprises a total of 1,060 pieces of real estate, of which 763 have been transferred to third parties by different titles, leaving 297, of which 194 retained their original structure, 62 were built by the defunct trade union organisations and 41 are plots of land; this inventory includes only real estate confiscated from trade union organisations or associations affiliated to such organisations, by the Act respecting political responsibilities and which were subsequently awarded to the National Trade Union Delegation (DNS). In addition to their real estate, the organisations which existed in 1936 were also deprived of their current accounts, savings accounts, etc., by the provisions of Acts dated 13 October 1938 and 13 December 1939, and the final list of these accounts the holders of which were not entitled to protection under the provisions of the last-mentioned Act was published in the Official Gazette on 9 August 1943, and which may therefore be consulted by any interested citizen, although it is not possible to obtain information on the balances of these accounts since they do not appear in the official list, which simply marks with an asterisk those accounts with a balance of less than 1,000 pesetas; the balances were not transmitted to the DNS but to the Ministry of Finance and it is quite easy to calculate the current value of any amount expressed in 1936 pesetas.
10. 120. The Government concludes by pointing out that it believes that the case presented by the complainant organisation is devoid of any foundation.

C. The Committee's conclusions

1. 121. The Committee notes that the complainant objects to the provisions of Act No. 4 of 8 January 1986 concerning the distribution those assets which constitute the accumulated trade union heritage, i.e. the assets and rights which derive from the former Trade Union Organisation, as well as to other provisions which relate to the devolution of the trade union heritage, as also defined therein (i.e. assets or rights confiscated from the trade union organisations or their affiliated or associated bodies as a result of the Spanish Civil War, pursuant to the Act on political responsibilities of 9 February 1939). The Committee takes note of the observations of the Government in this respect.
2. 122. The Committee observes that the system established by the Act for distributing the accumulated trade union heritage is based on the following principles: (1) the assigning of ownership to the State Administration; (2) distribution of the assets to the trade unions and employers' associations and preferably to the most representative associations in proportion to their representativity and subject to their remaining the most representative associations; (3) legally, these distributions of assets are of a limited and gratuitous nature, made for cause, and based on the purpose to which assets and rights of the accumulated trade union heritage were put by the former Trade Union Organisation (the criterion which was emphasised by the Committee on Freedom of Association in Case No. 900); (4) establishment by the Administration of a detailed inventory; (5) administrative measures concerning the management, distribution, alteration or annulment of assets and rights are to be issued by the Minister of Labour and Social Security after consultation in each instance with an Advisory Committee composed of representatives of the State and the most representative workers' and employers' organisations; (6) a requirement that any distribution made prior to the entry into force of the Act be confirmed by a resolution of the Ministry after consultation with the Advisory Council.
3. 123. The Committee furthermore observes that Act No. 4 of 1986 refers to the Organic Law on Freedom of Association Act (of 2 August 1985) as regards the criteria for establishing the most representative trade unions. The Committee recalls that, when it examined this aspect of that legislation in relation to its consideration of Case No. 1320 at its meeting in February 1986, it concluded that the relevant provisions were not incompatible with the principles of freedom of association (see 243rd Report, Case No. 1320 (Spain), para. 116). Accordingly the Committee, while noting with interest that Act No. 4 of 1986 reflects the established principle on the use of assets (i.e. that these should be used for the purpose for which they were intended in the former trade union organisation (see, for example, 202nd Report, Case No. 900 (Spain), para. 352), believes that the provisions in the Act are not incompatible with the principles of freedom of association.
4. 124. As regards those provisions of the Act dealing with the devolution of the historical heritage (i.e. assets confiscated from the Trade Union Organisation as a result of the Spanish Civil War), the Committee observes that the principles which govern this matter are as follows: (1) assets will be restored to those trade unions which are the legitimate successors of the organisations which formerly existed; (2) the term "successor" will be used in the sense employed by the ILO Committee on Freedom of Association; (3) the State will provide compensation for the value of assets to successor trade unions where devolution is no longer possible. The Committee also observes that, according to the Government, the inventory of real estate included in the historical heritage has almost been completed. In these circumstances, and after examining the provisions of the Act concerning the historical heritage, the Committee observes with interest that the provisions incorporate the principle established by the Committee to the effect that: when an organisation is dissolved, its assets should eventually be distributed among its former members or handed over to the organisation that succeeds it, the latter being understood as an organisation or organisations pursuing the aims for which the dissolved unions were established - and pursuing them in the same spirit (see 196th Report, Case No. 900 (Spain), para. 258).
5. 125. Finally, the Committee observes that, in accordance with Spanish legislation, any administrative measure made in furtherance of Act No. 4 of 1986 may in turn be the subject of an appeal to the courts.
6. 126. The Committee trusts that the legal provisions will be applied in conformity with the criteria fixed by it and that this will result in an equitable distribution of the heritage among those who are entitled to it.