Rapport intérimaire - Rapport No. 194, Juin 1979

1. 238. By a communication dated 14 February 1978, the General Union of Workers (UGT) presented a complaint of infringement of trade union rights in Spain. The UGT forwarded additional information on 12 April 1978. The Government furnished its observations in a communication dated 2 May 1979. In addition, the Unitary Trade Union has presented another complaint by a communication dated 30 April 1979, on which the Government has not yet furnished its observations.
2. 239. 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 complainants' allegations

1. 240. The UGT explains in its complaint that in pursuance of the legislation promulgated during and immediately after the Civil War (1936-39), it was declared illegal and its assets were confiscated and handed over to the National Office of Trade Unions of the Spanish Falange of the Traditionalists and the National Syndicalist Action Groups.
2. 241. On 28 April 1977, continues the complaining organisation, the UGT and other trade union organisations banned in 1939 were legalised. Moreover, the new Act on the right to associate in trade unions has repealed the former legislation. Consequently, claims the UGT, the basis on which its assets were confiscated having ceased to exist, these assets should be restored to their rightful owners. Yet repeated requests to the Government to this effect have elicited no response.
3. 242. The UGT adds that during the Franco régime the official Trade Union Organisation accumulated vast wealth deriving from the union dues compulsorily withheld from workers' wages. This heritage was passed on to the Institutional Socio-Occupational Services Administration (AISS) - the body which replaced the official Trade Union Organisation. Today, according to the UGT, these assets are in the process of being transferred to the State.
4. 243. In its communication of 12 April 1978, the UGT states that the Ministry of Labour, in consultation with the Ministry of Finance, has drafted a new Royal Decree on the transfer of the AISS's assets. The complaining organisation recalls that the AISS is an autonomous body which administers the assets formerly belonging to the Trade Union Organisation. The draft Royal Decree provides for the abolition of the AISS and for its assets to become public property or part of the national heritage. The UGT views this as an attempt to deprive trade union organisations of property which should be restored to them, and claims that it is a breach of Convention No. 87 and runs counter to the opinions expressed by the Committee on Freedom of Association in earlier cases concerning various countries.
5. 244. The UGT points out that, despite having been declared illegal, it has continued to exist from the time of the Civil war until the present day, as proved by the persecution to which its leaders were subjected and the fact that it kept up its affiliation to the International Confederation of Free Trade Unions and joined the European Trade Union Confederation. Accordingly, it claims, it is incorrect to talk of its dissolution, and, since it has been its own successor, the assets it formerly possessed should revert to it. The UGT appends to its communication a number of documents, including the text of the legislation promulgated during and after the Civil War with respect to the confiscation of the assets of trade union Confederations and an up-to-date inventory of the real estate confiscated from the UGT and at present administered by the AISS.
6. 245. The complaint of the Unitary Trade Union likewise refers to the problem of the devolution of the assets of the Trade Union Organisation. The Unitary Trade Union further alleges that it has been discriminated against by the Government in that the Government has not made premises available to it for its use as it has done for other trade unions.

B. The Government's reply

1. 246. In its communication of 2 May 1979, the Government remarks that the UGT's complaint raises two entirely different issues. The first concerns the request for the return to the UGT of the assets confiscated in 1936. The second relates to the claiming of the wealth accumulated by the Trade Union Organisation from its foundation until 1977.
2. 247. The Government states that the assets confiscated from the UGT and handed over to the Trade Union Organisation constitute an infinitesimal part of the property the latter had in its possession in 1977. According to the Government, if it were simply a question of requesting the return of confiscated property, it would not be necessary to address such a request to the Government. It would be incumbent upon the organisation concerned to initiate proceedings in the courts of justice, submitting an inventory of the property claimed, together with evidence of ownership, and stating the grounds for a possible waiving of the prescribed time limit for the receivability of such actions. The courts of justice would then pronounce judgement on this question, despite the legal and financial complexity of the matter.
3. 248. However, continues the Government, the problem is far more complicated than that inasmuch as the claim relates not only to the assets confiscated but to all the property of the Trade Union Organisation. Moreover, it is only partly true to assert that the resources in question have been built up through the compulsory payment of dues by workers. Lastly, the Government states that claim to this property is laid jointly by the UGT and other trade union Confederations legally recognised only recently, including the one deemed to be the most representative following the last elections held in undertakings.
4. 249. Referring to the principles laid down by the Committee on Freedom of Association, the Government states that it should be determined whether the present trade union Confederations are the successors to the Trade Union Organisation. In the Government's opinion it is doubtful whether these Confederations can be regarded as the successors to an undemocratic organisation to which it was compulsory for all Spanish workers to belong. It is moreover obvious that they do not pursue the same aims as the former Trade Union Organisation.
5. 250. Furthermore, the Government points out that the Trade Union Organisation embraced both employers and workers and that it performed functions which, in democratic countries, are the responsibility of the State. It is precisely for this reason that the assets of the Trade Union Organisation were largely derived from donations from the State, local corporations and private individuals, in addition to the union dues paid by both workers and employers.
6. 251. The Government specifies that it is necessary to include among the property of the Trade Union Organisation, in addition to the sizeable number of buildings housing the central, provincial and local headquarters, a whole series of assets, including in particular three residential holiday camps, numerous hotels and rest homes, sports facilities, hospitals and clinics, day nurseries, vocational training institutions, broadcasting stations, magazines and newspapers and farms. In view of the variety of items on this list it is difficult to determine as yet the proportions of the compulsory union dues earmarked respectively for the furtherance of the aims pursued by the present trade union Confederations, on the one hand, and the pursuit of objectives within the purview of the State, on the other.
7. 252. The Trade Union. Organisation's assets derived from many and varied sources. A rough distinction may be made between three different categories:
   • - assets confiscated from the trade union Confederations existing in 1936, mainly the UGT and the National Confederation of Labour (CNT). According to the Government they would represent a tiny proportion of the total assets, and it would be impossible to accede to claims on these assets filed by other trade union Confederations founded subsequently and legalised only recently, however representative they may be;
   • - assets deriving from donations or transfers from the state, public enterprises or bodies, local authorities or private individuals or bodies corporate. These assets, which are very numerous, were earmarked in most cases for concrete and specific purposes, so that they may be said to have been offered on a conditional basis. Their ownership is difficult to determine;
   • - assets acquired using the revenue from the union dues compulsorily paid by employers and workers (including those who are no longer union members today).
8. 253. All these reasons have prompted the Spanish Government to adopt a series of purely transitional measures designed to avoid any discrimination between one union and another and to ensure that, as far as possible, every asset is assigned to the purpose for which it was acquired. In accordance with these criteria, the real estate belonging to the Trade Union Organisation is at present being used for various purposes. A distinction may be made between three different situations:
   • - premises for the joint use of the governmental authorities and the various legally recognised trade union Confederations, consisting mainly of meeting halls. The Government points out that the authorities have put no obstacles in the way of use being made of these premises by the Confederations;
   • - premises used for specifically trade union purposes. The Government explains that recently arrangements have been made for various premises and equipment to be made available for use by the different trade union Confederations for a period of one year in particular, it was considered desirable that these buildings should continue to be used for the trade union purposes for which they were originally intended, though this did not imply the preclusion in advance of any type of activity whatsoever. The system decided upon is a flexible one and has been put into effect with the Confederations receiving the most votes in the recent elections.
   • - premises used by the labour authorities for the benefit of all workers. Such use is temporary, pending the final solution of the problem of the allocation of all the Trade Union Organisation's assets to the different bodies and institutions concerned. Some of these premises have been made available to autonomous bodies on which the trade union Confederations are represented.
9. 254. In conclusion, the Government reaffirms its willingness to provide the Committee with any explanations that may be considered necessary in connection with this very complicated matter.

C. The Committee's conclusions

1. 255. The Committee notes that the present case revolves around the problem of the devolution of assets confiscated from the UGT and those of the official Spanish Trade Union Organisation, now disbanded. In examining this case, the Committee is fully conscious of the extreme complexity of the issues raised. This complexity stems in particular from two factors: firstly, the diversity of the sources from which the Trade Union Organisation's resources originally came, and secondly, the nature of the functions assigned to it.
2. 256. As concerns the Trade Union Organisation's resources, a distinction should be made between the assets it received immediately after the Civil war as a result of the confiscation measures taken inter alia against certain trade union organisations and the income it subsequently received in the course of its existence. It is a fact that after the Civil War ended an Act passed on 23 September 1939 ordained that the assets of various trade union bodies which had been outlawed in 1937 were to be transferred to the Spanish Falange of the Traditionalists and the National Syndicalist Action Groups, the national administrative office of which would allocate them to meet the expenses of the National Trade Union Office.
3. 257. However, the trade union organisations, outlawed in 1937, were kept in existence after the Civil War by their leaders abroad, continued to play their part in the international trade union movement and remained operational in Spain through the carrying on of certain clandestine activities. In 1977, these organisations were once again officially recognised in Spain, where they are now able to carry on their activities lawfully. The UGT has accordingly requested the Government to return to in the assets taken away from it in 1939, and has drawn up for the purpose an up-to-date inventory of the property confiscated. According to the UGT, the Government has not yet replied to its request. The Government states in its communication that this is a matter for the courts of justice.
4. 258. In cases which have come before it involving the liquidation, of trade union funds and assets, the Committee has been guided by the criterion 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 Committee has also pointed out that the latter expression should be taken to mean an organisation or organisations pursuing the aims for which the dissolved unions were established - and pursuing them in the same spirit.
5. 259. The Committee recognises that particular difficulties are involved in the present case, in particular because of the long period of time that has elapsed since the UGT was proscribed. Nevertheless there is no problem of succession, since the UGT still exists. The Committee hopes that negotiations between the Government and the organisation concerned will enable an arrangement to be promptly worked out which is acceptable to the parties concerned and consistent with the principles of freedom of association.
6. 260. Nevertheless, according to the Government, the confiscated assets would form only a small part of the estate of the Trade Union Organisation established after the Civil War. The question of the disposal of the other assets acquired by the Trade Union Organisation appears to raise even more complex issues. In fact, that organisation had at its disposal throughout its existence substantial resources deriving from donations or transfers from the State or public or private bodies and from the compulsory dues paid by workers and employers. These resources were used for different purposes, some of which, particularly in fields such as health, employment and vocational training, normally fall within the competence of the State or public bodies rather than trade union organisations.
7. 261. The Committee notes in this connection that the Government has made temporary arrangements for use to be made of some of the Trade Union Organisation's assets. It notes in particular with interest that in so doing the Government has been guided by the principle that assets should be used for the purposes for which they were acquired, and that, bearing this in mind, certain premises have been set aside for use by representative trade union organisations. The Committee also notes that the public authorities and the trade union Confederations have one year in which to work out a legal formula for the final assignment of the assets of which they are now able to make use; this does not preclude referring the matter to Parliament for final decision when the time comes. The Committee encourages arrangements to consult representative organisations of employers and workers with a view to working out a final solution to the problems that exist. Lastly, the Committee notes the Government's statement to the effect that part of the property at issue has provisionally been assigned to the labour authorities to be used for the benefit of all workers pending a final settlement as to the ownership and allocation of these assets.