Definitive Report - REPORT_NO320, March 2000

1. 635. The complaint is contained in a communication dated 26 July 1999 from the Basque Police Force Union (Ertzainen Nazional Elkartasuna) (ERNE). The Government sent its observations in a communication dated 23 December 1999.
2. 636. Spain has ratified 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. 637. In its communication of 26 July 1999, the ERNE trade union alleges failure to apply article 100.1 of the Basque Police Force Act No. 4/1992, which stipulates the following:
2. Article 100.1 Trade union organizations may appoint shop stewards for the union sections which, wherever appropriate, they establish. Without prejudice to this right and for the sole purpose of the application of the guarantees and rights laid down in article 101 of this Act, trade union organizations having appointed representatives in accordance with the provisions of the above article shall have a number of stewards equivalent to two for every 250 officials (or fraction thereof) entitled to vote up to and including a limit of 5,000 and, above that limit, one further steward for every 200 officials (or fraction thereof). The stewards shall be apportioned to each one of the trade union organizations according to the membership they represent, in observance of the provisions of this article and the regulations which may be issued on the basis thereof.
3. 638. According to the complainant organization, more than seven years have elapsed since the Basque Parliament passed the Basque Police Force Act, three ballots to elect the union representatives of Basque police officers have been held without Chapter VIII of the above-mentioned Act having been complied with; that text lists the machinery and rights regarding representation and participation in determining working conditions. The complainant organization makes specific reference to the appointment of stewards for union sections, as addressed by article 100.1, of the Basque Police Force Act, resulting in half of the representation rights of ERNE having been disregarded throughout this period, without any prospect of a solution in the near future or any identifiable interest within the Basque Department of the Interior in ending the said infringement of fundamental rights. Accordingly, the provisions of an Act passed by the Basque Parliament, and designed to protect freedom of association and the rights enshrined in legislation, are not only disregarded but are taken as the pretext for a breach of the very rights that the Act is designed to protect. In fact, the so-called mixed system has served solely as an instrument whose effect has been to deny half of the rights accruing to ERNE as a trade union organization in the Basque Police Force.
4. 639. The complainant organization points out that on various occasions it has called upon the representatives of the Basque Department of the Interior to issue temporary regulations regarding the appointment of shop stewards, as provided for by article 100 of the Basque Police Force Act No. 4/1992, and that the Basque Department of the Interior has always refused to opt for that solution.
5. 640. The complainant organization indicates that, following the establishment of the committee foreseen in article 100 of the Basque Police Force Act No. 4/1992, the Chief Legal Officer of the Data Protection Agency issued a legal opinion on 17 May 1999, regarding the submission of a "list of all career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training", members of ERNE. After its legal examination of the matter, the Legal Office arrives at the following conclusions: (1) it is inadmissible for the trade union central organization to disclose the information regarding the identity of its members; and (2) the disclosure of such information would be admissible in the event of data dissociation as provided for in article 3(f) of the LORTAD Act, without a subsequent examination of the information being admissible if it is no longer subject to this dissociation procedure. Amongst the legal considerations, the Legal Office states the following:
6. ... judgment No. 292/1993 handed down by the Constitutional Tribunal on 18 October unambiguously indicated that "membership of a trade union is an ideological choice protected by article 16 of the Spanish Constitution which guarantees the citizen's right not to declare such status" and that "the disclosure of trade union membership is the personal and exclusive right of the worker, which shall be respected both by the employer and the relevant trade union organization". Consequently, in the case under review, such data enjoy special protection and "may only be computer processed with the explicit written consent of the concerned party" (article 7.2 of LORTAD), and therefore its transmission is inadmissible even though it may be deduced from legal provisions; the provisions of article 11.2(a) of LORTAD do not apply in this case. In the Legal Office's opinion, article 100.1 of Basque Parliamentary Act No. 4/1992 stipulates that the representation of different trade union organizations which may be established is organized "on the basis of the membership they represent" and therefore "if no appropriate reform of the above Act is undertaken, it will not be possible to establish the aforementioned trade union representative bodies".
7. 641. In the complainant organization's opinion, this intentional blockage (application of the Act rendered impossible and refusal to reform it) restricts and infringes basic freedom of association and the right to collective bargaining as protected by the ILO.
8. 642. Moreover, the complainant organization attaches an agreement signed on 26 April 1996 between the ERNE, CC.OO. and UGT trade union sections in the Basque Police Force (Ertzaintza) for the purpose of temporarily regulating the appointment of the union stewards addressed by article 100 of the Basque Police Force Act No. 4/1992 as follows:
9. The purpose of the present agreement is to develop trade union rights and promote the exercise of trade union activities within the Ertzaintza on the basis of the provision contained in article 101.3 of the Basque Police Force Act.
10. More than three years have now elapsed since the Basque Parliament passed the Police Force Act, two ballots were held in 1993 and 1994 to elect officials' trade union representatives; today, Chapter VII of the above Act which lists the machinery and rights regarding representation and participation in determining working conditions is not being implemented in its entirety.
11. Thus, the provision contained in article 100 regarding the appointment of stewards for trade union sections of organizations having elected representatives remains unfulfilled on account of difficulties in the implementation of the mechanism foreseen by the Act.
12. Without prejudice to the urgent need to take definitive action to resolve the existing problems, it is necessary to call upon the Department of the Interior to issue temporary regulations permitting the signatory organizations of this agreement to appoint their shop stewards for the purpose of setting up the union sections foreseen by the Act.
13. Given that, to date, the only formally available means of measurement of representative status formally available has been the results obtained by the various organizations in the elections of representatives, as held on 23 December 1994, we call for temporary regulations to apply to the aforementioned appointment of shop stewards and for the recognition of our rights under the same article 100 and for the representativity criterion (election results) to be taken as the basis for these temporary regulations.
14. We equally understand that the effects of such temporary provisions, that we favour and urgently call for, must remain in force until, by virtue of the Basque Police Force Act, the signatory trade unions of the present agreement are in a position to appoint the trade union stewards for which article 100 of the said Act No. 4/1992 makes provision or until such time as the obstacles to the effective application of the representativity rules and the administrative action, formally foreseen by the Police Act, is initiated making the appointment of stewards for the trade union sections possible.
15. 643. In a letter dated 9 February 1999 (attached by the complainant) addressed to the Basque Minister of the Interior, the Ertzaintza unions, ERNE, CC.OO. and UGT, as part of the process to develop the provisions of article 100 of the Basque Police Force Act and Decree No. 50/1993 (16 March), state that:
16. They consider that compliance with the contents of the said article of the BPFA, and of the Decree based thereupon, encroaches upon fundamental rights of workers as enshrined in the Spanish Constitution.
17. In accordance with law and the connected jurisprudence, the members of the relevant committee appointed by the Industrial Relations Board, upon the proposal of the Minister of the Interior, do not possess the authority to demand the transmission of computerized personal data regarding union membership; equally, the trade union organizations are not entitled to disclose such information to third parties without the express consent of those concerned. In the light of the above, it is not possible to comply with the requirements of article 37.1 of the aforementioned Decree without violating members' rights. The hypothetical refusal by one member regarding the disclosure of various personal status data (such as national identity card and, where appropriate, the current account used for the transfer of membership dues) is sufficient to invalidate the entire process inasmuch as any subsequent decision on the apportioning and appointment of stewards would not correspond to actual membership. Therefore, it is evident to us that there is a major incompatibility between our affiliation to the system and members' refusal to give express authorization to reveal their status and/or other personal data. That it is not possible for the trade union organizations to meet the requirements of article 100 of the BPFA and Decree No. 50/1993 (16 March) constitutes very serious prejudice to the said organizations and their representatives and it is attributable solely to the procedures laid down by the Police Act; it is proposed that those procedures be replaced by the apportioning of stewards on the basis of results obtained in past union elections and that steps be taken aimed at revising the Act with a view to incorporating electoral and representation procedures founded solely upon universal suffrage, in line with the procedures applied in all other public administrations.
18. B. The Government's reply
19. 644. In its letter of 23 December 1999, the Government states that the Basque Statute of Autonomy, adopted by virtue of Constitutional Act No. 3/1979 (18 December), stipulates, in article 17, that: "... the Basque institutions, in the form laid down in the present Statute, shall comprise the Autonomous Police Force to protect persons and property and uphold public order within the autonomous territory, whilst the responsibility for extra- and supra-community police services shall be reserved without exception for State security forces and corps ...". The same article foresees the existence of a Security Commission for the coordination between the Autonomous Police Force and the State Security Corps and Forces. The Ertzaintza, the Autonomous Police Force, set up by the Basque Government on the basis of the provisions of the above article, was first deployed in 1982 and reinforced in 1995 when it took on the full responsibilities - throughout the Autonomous Community - assigned to it by the Basque Security Commission, in accordance with the Delimitation of Services Agreements between the Autonomous Police Force and the State Security Forces and Corps; certain responsibilities are exclusive, such as the security of the public, and others are shared, such as criminal investigation. The Autonomous Police Force reports to the Ministry of Security which is an integral part of the Department of the Interior of the Basque Government. Consequently, it is subordinated solely to the Basque Government as stipulated by the aforementioned article 17, point 2: "The supreme command of the Basque Autonomous Police Force lies with the Basque Government ...". Hence, the Basque Parliament, at its session of 5 April 1990, passed a resolution stating that: "the Autonomous Police Force shall be governed by the Basque institutions which, consequently, may administrate it as a body for the protection of persons and property and for maintaining public security on Basque territory, ...". The same resolution describes it as a regular and general police force.
20. 645. The Government adds that, on 17 July 1992, the Basque Parliament, by virtue of Act No. 4/1992, passed the Basque Police Force Act which, inter alia, contains the general provisions regarding the action of the Basque Police Force, extensive regulations regarding status, trade union rights and the right to participate in matters of interest to it. Article 2 indicates that the Act shall apply to police corps subordinated to the Administration of the Autonomous Community and article 5 specifies that under the supreme command of the Basque Government, exercised by the Lehendakari, the Department of the Interior acts as the senior directorate of the Autonomous Police Corps or Ertzaintza.
21. 646. As is clear, the Government continues, the Autonomous Police Force is subordinated exclusively to the Basque Government and governed by the abovementioned Act No. 4/1992 passed by the Basque Parliament. Moreover, Constitutional Act No. 2/1986 (13 March) regarding security forces and corps, passed by the National Parliament (Cortes Generales), does not even apply to it, given that, in the final introductory provision, it is specified that that Act shall not apply to the competencies assigned by article 17 of the Statute of Autonomy to Basque institutions, with the exception of articles 5, 6, 7 and 8. These articles refer to the basic principles of action and common statutory provisions of a general nature, which are applicable to any democratic police force. The principles are based on the "Declaration on the Police" of the Council of Europe and the "Code of conduct for law enforcement officials" adopted by the United Nations General Assembly. Accordingly, the complaint presented to the ILO by the ERNE union of the Basque Autonomous Police Force, with reference to a violation of trade union rights, is an internal matter concerning that autonomous police force.
22. 647. The Government attaches a report on the complaint presented by the Human Resources Directorate of the Basque Department of the Interior; this contains several appendices with documents, legal and administrative texts in support of the statements made in the report.
23. 648. The Basque Department of the Interior declares that the Basque Police Force Act No. 4/1992 (17 July), in articles 99 and 100 regarding "representation and participation in determining working conditions", contains a dual form of trade union representation (the so-called mixed system of union representation in the Ertzaintza) which combines, on the one hand, the appointment of officials' representatives through "the ballot box" with proportional representation on the basis of the results obtained by each trade union in the relevant election exercise; and, on the other hand, the apportioning of stewards to each of the unions in proportion to the membership they represent and subject to the provisions of the said article 100 of the BPFA as well as to the regulations which may be issued on the basis thereof. In this regard, article 100, subsections 2 to 6, reads:
24. 100.2 The apportioning of stewards and their appointment by trade union organizations shall be completed within thirty days following the public announcement of the results of the elections for representatives.
25. 100.3 The number of members of each union organization shall be determined in accordance with the conditions prevailing on the date upon which the electoral process commences, with account being taken only of career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training. A committee of three impartial members with proven general competence and appointed by the Minister of the Interior upon proposal by the Industrial Relations Board shall conduct the necessary verification and apportioning of stewards to the corresponding trade union organizations.
26. 100.4 For the purposes addressed in the subsection above, the trade union organizations and the Department of the Interior shall supply the committee with the data or documentary evidence requested of them. Both the members of the committee and staff, which, where appropriate, assist them in the exercise of their functions, shall be subject to professional secrecy with regard to the data to which they may have access.
27. 100.5 By means of the proportional representation system, the corresponding number of stewards will be apportioned to each trade union in accordance with the quotient resulting from dividing the total number of members by the number of posts to be filled. The remaining posts shall, where appropriate, be apportioned to the union organizations, in descending order, in accordance with the remainder of members of each organization.
28. 100.6 The appointment of stewards apportioned to them shall be the prerogative of each union organization, but shall be made from among corps career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training.
29. Hence, this is a system which combines the criterion of consultation through the ballot box with representation based on the membership numbers represented by each union organization.
30. 649. The final text of Act No. 4/1992 emerged following debate and negotiation not only in the Basque Parliament but also with the trade union centrals which were representative at the time within the Ertzaintza (Eusko Langileen Alkartasuna, Ertzainen Nazional Elkartasuna, Comisiones Obreras (CC.OO.) and Unión General de Trabajadores (UGT)). Furthermore, at that time the constitutionality of the Basque Police Force Act was not challenged despite the fact that the Act had previously been the subject of constitutionality proceedings brought by the People's Party (Partido Popular) before the Constitutional Tribunal.
31. 650. Moreover, article 100 of the BPFA was elaborated further in the form of Decree No. 50/1993 (16 March); Chapter VIII of that text is entitled "Appointment of shop stewards" and contains, most specifically, the following:
32. 1. Only trade union organizations, federations and confederations having won representatives in ballots shall be able to appoint stewards on the basis of their membership.
33. 2. The proportional representation system apportions to organizations, federations or confederations a number of stewards based on the membership they represent.
34. In this way, the number of corresponding stewards shall be determined by the quotient resulting from dividing the total number of officials affiliated to all of the organizations, federations and confederations having won representatives by the number of stewards' posts to be filled, with the apportioning of the remaining posts to the organizations, federations and confederations in descending order in accordance with the remainder of the members of each one of them.
35. 3. The day following the announcement of the election results, the Minister of the Interior, upon the proposal of the Industrial Relations Board, shall, by order published in the Ertzaintza Official Bulletin, appoint three persons responsible for verifying the membership of these organizations, federations and confederations and for apportioning the corresponding number of stewards to each one of them.
36. 4. This committee of three persons, appointed by the Minister of the Interior, shall be set up within three days of its members' appointment.
37. 5. The Electoral Commission shall submit to the committee a certified copy of the electoral roll which shall act as a bona fide document for the purpose of ascertaining that those listed therein are Ertzaintza officials meeting the requirements to be counted as members.
38. 6. For the determination of their membership levels, each trade union organization, federation or confederation having won representatives shall supply the committee, within five days of the committee being set up, with a list of all their members who are career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training.
39. ...
40. 8. The committee shall conduct whatever verifications it considers appropriate of the documentation supplied to it and shall concentrate its work principally on ascertaining that persons listed as members meet the necessary requirements.
41. ...
42. 10. For the purpose of conducting its duties and guaranteeing confidentiality in its work, the committee may, by agreement with the trade union organizations, federations and confederations, visit their respective headquarters.
43. 11. The committee, in the light of the documentation mentioned in the article above, shall announce in the Ertzaintza Official Bulletin, within twenty days of the publication of the election results, the number of stewards apportioned to each organization, federation and confederation.
44. 12. Upon notification - within thirty days of the announcement of the election results - to the trade union organizations, federations and confederations of the numbers of stewards apportioned to them by the committee, the Ministry of Security shall be informed of the appointment and identity of the stewards whose names shall be listed on the electoral roll.
45. 651. It should be emphasized that article 37 of the Decree contains specific texts on issues addressed by the Act and requiring further elaboration in respect of the precautions initially foreseen to safeguard the confidentiality of the data to be handled.
46. 652. The Basque Department of the Interior draws attention to the negotiations which took place regarding Decree No. 50/1993 between the representatives of the public administration and the trade unions. In that connection, it attaches a set of documents indicating the manner of transmission to the trade unions of the various proposed decrees to which the unions responded in writing, with some of their proposals being incorporated.
47. 653. The Basque Department of the Interior proceeds to explain how and why the effectiveness of the legal provisions and regulations has been limited by the Industrial Relations Board. As can be inferred from article 100.3 in fine of Act No. 4/1992 and article 34 of Decree No. 50/1993, it is incumbent upon the Industrial Relations Board to propose to the Minister of the Interior the three persons responsible for verifying trade union membership and apportioning the number of stewards due to each union. Hence, its role is essential for the development and effectiveness of the representation system based on membership in Ertzaintza. The Industrial Relations Board is comprised of seven members nominated by trade unions and seven by employers, subsequently appointed by the Lehendakari, and who are joined by the Chairperson and Secretary General who have no voting rights (article 4.1 of the Industrial Relations Board Act). Moreover, by virtue of the revised Industrial Relations Board Act, decisions must be adopted by an absolute majority within each component of the Board.
48. 654. Whenever the Board is reconstituted, the trade unions which at that time have most representative status and those having obtained 10 per cent or more in the elections for staff representatives in Basque Autonomous Community enterprises and public administrations are entitled to appoint representatives in proportion to their representative status, with at least one post being guaranteed to each of them (article 4.3, IRBA); by virtue of the revised IRBA, the vote of each trade union appointee is weighted as a function of the representative status in the elections. Whereas, today, agreements must be adopted by an absolute majority within each of the Board's components, until 1997 a qualified absolute majority of 60 per cent was required.
49. 655. The Basque Department of the Interior points out that, on 3 June 1993, the Minister of the Interior sent a second letter to the Chairperson of the IRB, recalling the legal requirement to submit proposals for the appointment of the three committee members to verify union membership. This letter emphasizes the concern held by the Department of the Interior on account of a communication dated 24 May 1993 (in which the IRB reports that, when on the first occasion it proposed to nominate the three members of the verification committee, it decided not to place the item on the plenary agenda for lack of agreement); there were also attempts by certain union organizations to hinder compliance with the obligation incumbent on the IRB.
50. 656. The IRB plenary decided on 4 June to resume its meeting on 9 June 1993 in pursuance of article 100.3 of the BPFA. The meeting was held. The record of the plenary of 9 June 1993 leaves no doubts regarding the obstacles erected by the CC.OO. and UGT unions in efforts to prevent the IRB plenary from nominating the three committee members. Not only did the employers' representatives refrain from hindering the nominations, but they also proposed to choose, as an election procedure, the drawing of lots between the components of the Preco II college of arbiters. In the union group, LAB abstained throughout, ELA was in agreement with the drawing of lots, and the CC.OO. and UGT blocking any agreement; each used different arguments: CC.OO. rejected the very system of representation in proportion to membership and refused to make any nomination of a short list whereas the UGT maintained that the union representatives had to reach a unanimous agreement. On this basis it was ultimately ascertained that there was no sufficient degree of agreement for the IRB to nominate the three members of the committee referred to in article 100.3 of the BPFA and, consequently, no proposals were presented. The reason for the failure to agree resides in the fact that the positions adopted by CC.OO. and UGT blocked the 60 per cent qualified majority which, at that time, the IRBA required of each component represented on the Board for the valid adoption of agreements. The union section and its representative status in percentage terms at the time of the said meeting, i.e. 9 June 1993, was: ELA, three members, 42.86 per cent; UGT, two members, 28.57 per cent; CC.OO., one member, 14.29 per cent; and LAB, one member, 14.29 per cent. This situation remained unchanged until 1997. The new regulations introduced by the Industrial Relations Board Act No. 11/1997 (27 June) prompted the Minister of the Interior, on 11 September 1997, to forward a letter to the Chairperson of the IRB, requesting the nomination of three regular and three deputy member to form the committee responsible for the verification of union membership.
51. 657. On 23 October 1997, the Chairperson of the IRB notified the Department of the Interior that, at the Board's plenary sitting of 23 October, a majority agreement had been adopted to nominate the deans of the bar associations of each of the constituent territories of the Basque Autonomous Community.
52. 658. At the meeting of 23 October 1997, the position taken by the employers' representatives together with the ELA and LAB unions, in combination with the change in the law which requires a simple absolute majority in each of the Board's components, prevented the UGT and CC.OO., which maintained the earlier obstacles at the meeting, from blocking the appointment of the three members. The unions' representative status in percentage terms on 23 October 1997 was: ELA, 45.21 per cent; UGT 18.51 per cent; CC.OO., 18.89 per cent; and LAB, 17.39 per cent. In the elections conducted in 1998, the relevant percentages were as follows:
53. -- ELA: 31.66 per cent
54. -- ERNE: 50 per cent
55. -- CC.OO.: 13.33 per cent
56. -- UGT: 5 per cent
57. 659. On 4 December 1998, the Minister of the Interior sent a letter to the Chairperson of the IRB, requesting the IRB to nominate the three members of the union membership verification committee; this request was repeated by the present Basque Minister of the Interior on 18 January 1999. The Chairperson of the IRB informed the Minister of the Interior that the IRB plenary, at its sitting of 15 January 1999, had by majority adopted an agreement to nominate the deans of the bar associations of each of the three constituent territories of the Basque Autonomous Community. Consequently, the Order dated 29 January 1999, issued by the Minister of the Interior, appointed, upon proposal by the Industrial Relations Board, the deans of the bar associations of each of the three territories of the Basque Autonomous Community as members of the committee responsible for verifying the trade unions' membership and publishing the respective numbers of stewards apportioned to each organization.
58. 660. Nevertheless, it is clear that the obstructionism of the UGT and CC.OO. was not limited to the events described above; by bringing court action, they attempted to avoid the application of the membership system; this legal action approach was deployed as follows:
59. -- The legal counsel of CC.OO. lodged an administrative appeal on 31 March 1993. It sought the full annulment of articles 32 to 38 of Decree No. 50/1993 (16 March) by a declaration to the effect that those provisions ran counter to articles 14, 18.1 and 28.1 of the Constitution. The Administrative Appeal Chamber of the Basque High Court of Justice, by writ of 11 May 1993, decided not to accede to the adoption of the precautionary measures called for in the first preambular paragraph of the appeal. Subsequently, as a consequence of CC.OO.'s withdrawal of the initiated appeal, this case No. 1100/93 was closed by a writ on 9 March 1994.
60. -- The legal counsel of the UGT filed a similar appeal before the same judicial body on 28 April 1995, seeking, above and beyond a declaration that articles 5.3, 6, 7, 8 and 9 of Decree No. 50/1993 were unlawful, the repeal of articles 12 and 33 to 38 of the same Decree. The Administrative Appeal Chamber's ruling on case No. 1277/93, 27 June 1996 (No. 420/96), threw out the UGT appeal. The ruling reads:
61. The challenged provisions establish a procedure for verifying the membership levels of each trade union for the purpose of determining the shop stewards due to them; it consists of the following: the Minister of the Interior appoints, upon proposals from the Industrial Relations Board, a committee comprising three members appointed to the said task. In accordance with the provisions of article 100.3 and 4 of the Basque Police Force Act, the committee must be comprised of impartial persons of proven competence, who are subject to professional secrecy in respect of the information to which they may have access.
62. The Chamber considers that these regulations offer sufficient guarantees of respect for article 16.2 of the Constitution, given that, on the one hand, the committee that verifies the membership level of each trade union must be made up of impartial persons of proven competence, who are subject to professional secrecy in respect of the information to which they may have access.
63. The said committee verifies the membership level of every trade union and must be made up of impartial persons whose nomination is not a prerogative of the Basque Minister of the Interior who shall adhere to the proposals submitted by the Industrial Relations Board and, moreover, the committee members are bound by professional secrecy.
64. Consequently, the personal union membership data do not have to be communicated either to the administration or third parties.
65. Finally, we draw attention to the fact that this action is based upon arguments which differ from those reviewed in the verdict of 18 October 1993 of the Constitutional Tribunal, given that, on the basis of the above-mentioned safeguards, the enterprise (Basque Administration) can have no knowledge of the membership data.
66. In the light of the foregoing conclusions, this appeal shall be thrown out.
67. 661. A last instance appeal was lodged against this ruling on 9 October 1996 and it is at present pending before the Supreme Tribunal.
68. 662. The representatives of ERNE, CC.OO. and UGT have repeatedly refused to supply the lawfully established committee with membership data and, in this way, have impeded the application of article 100 of Act No. 4/1992 and article 37 of Decree No. 50/1993. This persistent position has been publicly declared through the media and was communicated to the present Department of the Interior in a letter sent by the representatives of these three trade unions which endeavour to invoke two reports of the Data Protection Agency.
69. 663. With regard to the Basque Public Administration's conduct in respect of the matter which is the subject of the complaint, the following should be emphasized:
70. -- The representatives of the Basque Administration held negotiations on the Basque Police Force Bill with the trade union central organizations which were representative at that time, namely CC.OO., UGT, ERNE and ELA, and achieved agreements leading to the final text of the said Bill, with the incorporation of the Ertzaintza union representation system in the agreements signed with the three aforementioned trade unions. Similarly, Decree No. 50/1993, which elaborated upon certain aspects of Basque Police Force Act No. 4/1992 (16 March), was also submitted for discussion and all of the trade union centrals' proposed amendments, some of which were incorporated into the final text.
71. -- Since the entry into force of Act No. 4/1992 and Decree No. 50/1993, the Administration has scrupulously complied with the obligations ensuing from both texts, by promptly communicating in the due manner the request to the Industrial Relations Board for nominations of three members of the union membership verification committee.
72. -- The Administration's action was not limited to fulfilling these obligations: it endeavoured to overcome obstacles and find solutions in the face of the arguments presented by some trade unions and it managed to propose, in the Ertzaintza Council, alternative solutions which ultimately, however, did not prosper.
73. -- The legal counsel of the Basque Public Administration opposed the court action brought by the CC.OO. and UGT unions against the representation system, based on membership, and its various aspects; it secured court rulings in favour of the administration's case and which confirmed the lawfulness of the relevant parts of Decree No. 50/93.
74. -- As of 1995, the administration's representatives in the Department of the Interior granted the unions a number of hours to be devoted to trade union activities; these exceed what would result from the mere calculation of time to which they would be entitled by virtue of their status as an elected representative. Hence, it has, in various ways, facilitated the application of the membership representation system, by ensuring exercise of one of the rights recognized by this system and the aforementioned legal texts, namely the entitlement to a number of hours for union activity.
75. 664. In sum, it has not been possible to apply the representation system based on membership, as contained both in the Act and the Decree, on account of a blockage, between 1993 and 1997, in the Industrial Relations Board - which the above texts designate as the body responsible for nominating the three members of the committee called upon to verify union membership; the blockage was provoked by the UGT and CC.OO. unions which have minority representation in the Ertzaintza. Whereas in 1997 and 1999 the Industrial Relations Board was able to present the same proposals to appoint a list of persons to the said committee, namely the three deans of the bar associations of Araba, Guipúzcoa and Biscay, all of which became possible following the change in the law regarding the majority required for an agreement in the IRB - and despite the renewed negative vote by CC.OO. and UGT - it is clear that the applicability of the system of stewards in proportion to membership is proving fruitless, given the repeated refusal since 1997 by the UGT, CC.OO. and ERNE union representatives to supply membership data to the committee which has been lawfully nominated, appointed and set up for the verification of membership and the apportioning to each trade union of its respective stewards, in accordance with the system lawfully established. Similarly, the court rulings handed down to date have rejected the action brought by the UGT and CC.OO. and have confirmed the lawfulness of the relevant texts.
76. 665. Finally, mention should be made, in conjunction with the various court rulings, of two verdicts handed down by the Constitutional Tribunal of 18 October 1993 and 22 July 1999, respectively. The former, quoted by ERNE in its communication to the ILO, was invoked by the judge for the purpose of throwing out the UGT appeal lodged with the Administrative Appeal Chamber of the Basque High Court of Justice. The premise of the Constitutional Tribunal's verdict of 18 October 1993 is different from that considered by ourselves and the UGT in its appeal, given that whereas, in the former case, the employers would have access to membership data, in this instance such data would not be available to the Basque Administration, under application of the relevant precautions.
77. 666. In its verdict of 22 July 1999, the Constitutional Tribunal draws attention to two paragraphs of its legal preamble (No. 6 in fine) which we consider as definitive and which state the following:
78. We have already indicated that the application of the accreditation machinery and supervision of trade union membership, with regard to a trade union section maintaining that it may not reveal its members' names, certainly presupposed, for the sake of safeguarding the relevant fundamental rights, the possibility to resort to union accreditation methods or machinery different from those utilized by the remaining trade unions in the enterprise and which guarantee confidentiality of union membership. At the same time, however, it is not clear that the LAB union section offered the enterprise any membership accreditation procedure which was different from the one followed by the remaining union centrals and which safeguarded the ideological freedom of its members (which is neither impossible nor excessively difficult), and we have already indicated that the additional trade union rights and, hence, the right invoked in this instance, shall be exercised within the framework established by the legal texts or agreements recognizing it (Constitutional Tribunal Verdict 61/1989).
79. Given the total lack of action on the part of the appellants and representatives of the LAB union section to comply with the established requirements with a view to exercising the trade union rights in question, it may not be concluded that the employer's request to the LAB union section to supply, in accordance with the Agreement, a list of members' names - the procedure followed by the remaining union sections in the enterprise - is detrimental to its freedom of association by imposing upon it a form of conduct contrary to the ideological freedom of its members, as claimed by the appellants.
80. Consequently, the highest judicial body states that to offer - in this instance to the enterprise - a membership accreditation procedure which safeguards the ideological freedom of its members is neither impossible nor excessively difficult and, furthermore, that the right being claimed shall be exercised within the framework established by the legal texts or agreements recognizing it. Furthermore, the request made to this trade union to supply a list of members, in compliance with the agreement, is not judged by the Constitutional Tribunal to run counter to ideological freedom. The procedure contained in Act No. 4/1992 and the Decree which elaborates thereupon constitutes even less of an encroachment upon ideological freedom.

C. The Committee's conclusions

1. 667. The Committee observes that in the present complaint, the complainant organization alleges non-compliance with article 100.1 of the Basque Police Force Act No. 4/1992, with regard to the appointment of shop stewards for the trade union sections set up within the Basque Police Force. The complainant draws attention to the fact that the Chief Legal Officer of the Data Protection Agency raises objections to the submission of a list of union organizations' members without the written consent of those concerned; in the Chief Legal Officer's opinion, it will not be possible (unless data dissociation takes place in the form laid down by the Personal Data Protection Act) to establish the union representative bodies until a reform is conducted of the Basque Police Force Act. According to the complainant organization, the Basque Department of the Interior has refused any temporary regulation regarding the appointment of union stewards and, in the complainant's opinion, the fact that it is not possible to apply the Act, together with the refusal to reform it, infringes the right to collective bargaining. In the documents attached by the complainant, it and two other unions make reference to legal obstacles to the application of the texts regarding the steward appointment procedures: that it is not possible to pass on computerized personal data on union membership without encroaching upon members' constitutional rights as well as the refusal by members to disclose their status; moreover, these organizations indicate that their members reject the representation system laid down in article 100 of the Basque Police Force Act and Decree No. 50/1993 (16 March) and propose that it be substituted by an electoral procedure based solely upon universal suffrage.
2. 668. The Committee takes note of the statement by the Basque Department of the Interior that: (1) under the present system of union representation within the Autonomous Basque Police Force, proportional representation, on the basis of the results obtained by union organizations through a ballot box procedure in which all police officers take part, is combined with representation through union stewards on the basis of the membership they represent (the complaint only addresses this latter component); (2) by virtue of the present system, with regard to the apportioning of the number of stewards on the basis of the membership that the unions represent, the Basque Minister of the Interior, upon proposals by the Industrial Relations Board (comprising seven union organizations' members, seven employers' organizations members, a Chairperson and a Secretary General (neither of whom have the right to vote) and who are appointed by the Lehendakari (the Executive)), designates three persons to make up a committee responsible for verifying trade union membership and apportioning the number of stewards due to those organizations; the unions shall supply the committee with a list of their members; (3) to guarantee confidentiality in its work, the committee shall, by prior arrangement, be entitled to visit the unions' headquarters; (4) the texts governing this system were negotiated with the union organizations; (5) the Constitutional Tribunal did not find the union representation system laid down in article 100 of the Basque Police Force Act unconstitutional when a political party lodged an appeal seeking such a ruling; (6) the Basque Administration has repeatedly fulfilled its obligations, by requesting the Industrial Relations Board to nominate three members of the committee responsible for verifying union membership; (7) between 1993 and 1997, it was not possible to apply the system of representation on the basis of membership (appointment of stewards) as a consequence of the boycott on the Industrial Relations Board by twounions with minority representation in the Basque Police Force; (8) finally, in 1997 and 1999, the Industrial Relations Board nominated the deans of the bar associations, but three unions (affiliates of the complainant organization) refused to supply the membership data to the committee called upon to ascertain membership and, thereby, prevented the appointment of stewards; (9) the verdict of the Basque High Court of Justice (Administrative Appeal Chamber) threw out the appeal lodged by one of the minority unions opposed to the present system (with regard to the relevant articles of Decree No. 50/1993 (16 March), elaborating upon the Basque Police Force Act) and which sought a ruling that it was unconstitutional; this verdict emphasizes that the committee responsible for verifying union membership is made up of impartial persons of proven competence, subject to professional secrecy with regard to the data to which they may have access and that, when the Minister of the Interior appoints these members, he shall abide by the nominations made by the Industrial Relations Board; consequently, the personal data will not be disclosed to the administration or third parties; this verdict was the subject of a final appeal lodged with the Supreme Tribunal on 9 October 1996 and which is still pending.
3. 669. The Committee wishes to recall, firstly, that Conventions Nos. 87 and 98 are compatible both with systems which foresee union representation, for the exercise of collective trade union rights, based upon the degree of actual union membership, as well as with those foreseeing such union representation on the basis of general ballots of workers or officials, or, yet again, with systems constituting a combination of both. The latter option (a so-called mixed system) is the one laid down by the Basque Police Force Act and the relevant Decree, according to which the apportioning of the number of union stewards is determined by a three-member committee responsible for verifying the trade union membership of the different organizations. In the Committee's opinion, this kind of system is compatible with the principles of freedom of association, as long as it offers certain guarantees. Clearly, the protection of data regarding union membership - the issue raised by the complainant organization - is a fundamental aspect of human rights and, in particular, with regard to the right to privacy; however, in the Committee's opinion, inasmuch as the verification of union membership is subject to strict guarantees, there is no reason why it should not be compatible with the observance of such rights or guarantee confidentiality in respect of members' identities. The Committee observes that the Basque Police Force Act and the ensuing Decree contain such guarantees, given that, according to the texts, the members are committed to professional secrecy (violation of which is punished, in the majority of countries, by criminal penalties), must be impartial persons with proven competence and are nominated by a tripartite body (bipartite in terms of voting rights); all of these conditions are such as to guarantee that the personal membership data are not divulged to the Administration or third parties. Nevertheless, from a practical point of view, certain minority organizations represented within the Basque Police Force reject the representation system, on the basis of union membership, or, at least, voice reservations regarding the characteristics of the present system in connection with respect for the constitutional rights of personal privacy. In this regard, the Committee emphasizes that it is important for the bodies responsible for verifying the membership levels of union organizations to enjoy the confidence of all such organizations. Accordingly, the Committee requests the Government to recall to the Basque Government the advisability of continuing to promote a dialogue between union organizations, including those with minority status, for the following purposes: (1) the application of agreed practices to be respected by the Industrial Relations Board, regarding that body's criteria for nominating the three persons to sit on the union membership verification committee; and (2) establishing, between trade unions, a code of conduct governing the conditions in which the membership verification committee is to be upplied with the data regarding their members, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality.