Informe provisional - Informe núm. 286, Marzo 1993

1. 474. In a communication dated 29 January 1992, the Confederation of Independent Trade Unions in Bulgaria (CITB) made a complaint alleging violation of freedom of association by the Government of Bulgaria. It made new allegations on 25 May 1992. The World Confederation of Organizations of the Teaching Profession (WCOTP), in a letter dated 15 June 1992, stated that it supported this complaint.
2. 475. The Government sent its observations on the allegations in communications dated 23 April and 2 October 1992.
3. 476. Bulgaria has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 477. In its letter of 29 January 1992, the Confederation of Independent Trade Unions in Bulgaria (CITB) alleges that the Act on the assets of the Bulgarian Communist Party, the Bulgarian Agrarian People's Union, the Front of the Fatherland, the Dimitrovian Union of Communist Youth, and the Union of Active Combattants Against Facism and Capitalism and Bulgarian trade unions, which came into force on 19 December 1991 and which stipulated that the assets acquired by the Central Council of Bulgarian Trade Unions after 9 September 1944 must be considered as acquired illegally and were thus confiscated by the State, is a flagrant contradiction of the principles and standards of international law.
2. 478. The CITB believes that this Act is not compatible with a number of international treaties of which Bulgaria is a signatory, in particular Convention No. 87 of the ILO.
3. 479. The CITB believes that the Act of 19 December 1991 does not take account of the specific nature of the historical development of the trade union movement in Bulgaria. It explains that Bulgarian trade unions (Central Council of Bulgarian Trade Unions) to which this Act applies have existed since 1945 and that for 45 years all wage earners, i.e. approximately 4 million persons in only the last three decades, joined this central organization. Their contributions constituted a significant volume of their own funds which were used to establish the trade union assets. The CITB firmly condemned the totalitarianism and collaboration of the Central Council of Bulgarian Trade Unions at its constituent congress in February 1990. It has adopted and consistently applied the authentic principles of trade unionism, within the new framework of trade union pluralism, as an integral part of Bulgarian society on the path towards democratization. Section 32 of its statutes which were adopted on 18 February 1990 stipulates that the CITB is entitled to the assets and patrimony of the Central Council of Bulgarian Trade Unions. A large part of the trade union assets of the CITB to which the Act of 19 December 1991 applies is thus made up of contributions by several generations of workers and its confiscation is a violation of the CITB's right to ownership of these assets.
4. 480. The CITB also states that immediately after its establishment and on its own initiative, the state assets which were previously entrusted to the trade unions were entirely restored to the State by Order No. 88 of the Council of Ministers of 199O. The CITB points out that its current assets are trade union and not state assets, which was confirmed by an inspection carried out in 1991 by the Ministry of Finance, the conclusions of which categorically indicated that the CITB does not have any assets which should be restored to the State.
5. 481. The CITB points out that it has stated on several occasions that it is ready to make part of its assets available to other trade unions because it is aware of the fact that the assets are made up of contributions by workers some of whom are now members of other trade unions. The CITB believes that the Act of 19 December 1991 was inspired by political motives to eliminate the CITB and trade union pluralism in the country by resuscitating - this time by means of an Act - "the single trade union organization" which was typical of the totalitarian past of Bulgaria. It believes that this is tantamount to calling into question the very idea of trade union freedom.
6. 482. The CITB adds that, since February 1990, its new image has been that of a democratic trade union representing some 2.5 million members. The latter regularly pay their contributions on a voluntary and free basis, which have enabled new trade union assets to be established. Meanwhile, the CITB has received no subsidy from the State. The confiscation established by the Act of 19 December 1991 also includes these assets, which is yet another brutal seizure of its trade union property.
7. 483. The CITB believes that the intervention of the State in the determination of its needs is another violation of the free exercise of trade union freedom. Section 1 of the Act of 19 December 1991 orders the total confiscation of trade union assets and, under section 2, the Council of Ministers and the community authorities are required to provide the CITB with only the "premises and furniture" which are indispensable to the carrying out of its activities, with the State reserving itself the monopoly of determining these needs. These provisions have already been applied by Decision No. 26 of 20 January 1992. The Council of Ministers unilaterally determined the premises in which the CITB was to install its headquarters, which is an unacceptable interference designed to make the trade unions economically dependent on the State.
8. 484. According to the CITB, the Act of 19 December 1991 is an infringement of the rights of trade unions guaranteed by Articles 2, 3, 7 and 10 of Convention No. 87. The seizure of trade union assets, i.e. the total confiscation of assets under the Act, will deprive the CITB of any real possibility for preparing and supporting its programmes for the promotion and trade union defence of workers. Such a measure would render meaningless the legal personality which trade unions in Bulgaria enjoy as a matter of right (without any procedure for registration) under section 49 of the Labour Code. According to Bulgarian legislation, legal personality without assets would have no legal meaning; the seizure of assets would be tantamount to the pure and simple liquidation of this legal personality.
9. 485. The CITB made new allegations in a communication of 25 May 1992. It states that the Office of the Procurator has initiated legal proceedings against Mr. Ivan Neikov, Vice-President of the CITB, who allegedly participated in acts of protest against the seizure of the building of the Seafarers' Trade Union in Ruse prior to the adoption of the Act to confiscate the CITB assets. It also allegedly prohibited Mr. Neikov from leaving Sofia, which is why he was not able to attend the International Labour Conference. The CITB points out that similar proceedings are about to be taken against other officials of the CITB and the Podkrepa Confederation. It also states that it is constantly subject to brutal pressure and harassment. The buildings which it possesses throughout the country have been confiscated under the Act of 19 December 1991 and its trade union committees have found themselves on the street without any means to carry out their work. With the collaboration of obedient judicial authorities, the Government is putting CITB officials on political trial. The militant members of trade unions affiliated to the Confederation are the first victims of staff reduction measures and no account is taken of the protection guaranteed by the provisions of the Labour Code.

B. The Government's replies

1. 486. In an initial reply dated 23 April 1992, the Government states that a group of members of Parliament lodged an appeal with the Constitutional Court of the Republic of Bulgaria requesting that the part of the Act of 19 December 1991 respecting the assets of the Bulgarian trade unions transferred to the CITB be declared unconstitutional under article 149(1), (2) and (4) of the Constitution and incompatible with the principles of universally recognized international law and the international Conventions ratified by Bulgaria. Following this appeal, the President of the Court opened proceedings on the assets of the CITB (Case No. 5/1992). The parties concerned were notified and invited to submit their written observations and their evidence. Once the Court believed that it had sufficient evidence to decide the case, it would issue its decision within a period of two months.
2. 487. The Government states that the Act of 19 December 1991 does not deprive the CITB of the right to acquire trade union assets. Under section 2 of the Act, the Council of Ministers and the communes must provide the organizations affected by the Act, including the CITB, with the necessary premises and furniture for their activities, upon presentation of a statement of their needs within a period of one month from the entry into force of the Act. As regards the assets which had been given by the State to the Bulgarian trade unions, the obvious objective of these decisions had been to establish a trade union organization approved and controlled by the State, as can be seen from the statutes of the Bulgarian trade unions. There was no doubt that the main objectives and spheres of activity of these trade unions were fully consonant with the decisions of the Party and the Government. In these circumstances, the Government believes that the assets of this organization are not entitled to the protection guaranteed by the general terms of Articles 3 ff. of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It believes that the assets in question should be distributed between the new trade union organizations.
3. 488. As regards the distinction between the assets acquired through state subsidies and those made up of contributions paid by the members of the Bulgarian trade unions, the Government maintains that the facts are very complex. Only a competent judicial body, after examination of all the available written evidence, including parliamentary documents on debates preceding the adoption of the Act of 19 December 1991, would be able fully to evaluate and clarify these matters.
4. 489. In a subsequent communication dated 2 October 1992, the Government sent additional observations and a copy of the decision handed down by the Constitutional Court on 27 July 1992. The Government states that it believes that the appeal lodged before this Court was not justified because the Act of 19 December 1991, which was the subject of this appeal, seeks to establish a real separation between trade unions and the State and to re-establish justice in society. The Act is not of a confiscatory nature. On the contrary, its objective is the recovery of material assets which belong to the State.
5. 490. The Government explains that it is generally recognized that the former Bulgarian trade unions did not constitute an autonomous organization based on the principles of freedom of association. They had pledged allegiance to the Bulgarian Communist Party which had appropriated the exclusive right of guiding society and the Bulgarian State. The Committee of Experts on the application of Conventions and Recommendations had often emphasized this relationship of dependence by stressing that the latter offered no free choice in the sphere of occupational organization. The Government goes on to point out that the creation of trade unions based on the principle of free choice - including the CITB - is a recent one. This principle guarantees freedom of association, the acquisition of freedom which is legally protected and non-interference by the authorities in trade union activities. The government believes that the adoption of the Act of 19 December 1991 is not an obstacle to freedom of association and does not infringe the legal personality of the CITB. The Act in question deals exclusively with matters concerning assets which have been acquired in an unjustified manner.
6. 491. The Government points out that the CITB, following its establishment as an independent trade union which had broken all links with the Bulgarian Communist Party, wished to keep the assets which previously belonged to the Bulgarian trade unions and had unilaterally declared itself their successor. Concerning the question of the ownership of these assets, the funds used for their acquisition and the right to be considered the successor of such trade unions, the Government explains that under the provisions of the Act the CITB said that it was owner of approximately 150 million leva, i.e. 84 million leva in immovables and 9 million leva in transferable assets, 18 million leva in payments received or receivable, and 38 million leva in interests in companies, publishing houses and associations. According to documents which were not challenged, the Bulgarian trade unions had received from the State 630 million leva. This was the amount for only one-third of the period under consideration. The Government has no information on the funds allocated during the other two-thirds of this period. This is why they have not been included in the amount cited since the assets of the trade unions were not regularly inspected. For the last ten years, from 1981 to 1990, the sum allocated by the state budget was 614 million leva. It appears from these figures that the value of the assets confiscated under the Act of 19 December 1991 is much lower than the amount of the funds received from the State. Economic profit had been made by the former trade unions at the expense of the State. Since it is recognized that the former trade unions were organizations run by the State and dominated by the Communist Party, the Government believes that the only objective of the Act of 1991 is to recover state assets, since they were acquired as a result of funds granted by the State, and not to hinder trade union activities. It is furthermore undeniable that the Bulgarian trade unions received more government funds during the period under review than those which they have declared.
7. 492. The Government points out that a large number of functions which were previously exercised by the former Bulgarian trade unions - protection of labour, social security, social recreation, placement offices and many other social functions - have been taken over by the Government and must be carried out using the assets recovered by the State. Under the provisions of resolution No. 374 of 22 September 1991 of the Council of Ministers, the Ministry of Labour and Social Affairs is now responsible for resolving the urgent problem of material facilities for employment agencies and assets of organizations which the State appropriated under the Act.
8. 493. According to one of the allegations made in the appeal lodged with the Constitutional Court, freedom of association was violated as a result of the confiscation by the State of trade union assets. The Government denies this allegation by citing section 2 of the Act of 19 December 1991 which obliges the Council of Ministers and the municipal councils to provide organizations whose assets have been withdrawn by the Act with the premises and furniture required for the exercise of their activities. With a view to complying with this obligation, the Council of Ministers, in application of section 46 of the Labour Code, by Decision No. 26 of 20 January 1992, granted free of charge to the CITB, the plaintiff in this case, premises (11th-19th floors of the central building of trade unions in Sofia to house the administrative services of its central directorate), vehicles (33 automobiles and 3 minibuses), office furniture and cash funds to pay expenditures for December 1991 and January 1992. Furthermore, under Decision No. 22 of 11 February 1991, the Council of Ministers had also granted an administrative building to the Podkrepa Confederation. The Government states that the muncipal authorities have provided the regional offices of the CITB with buildings and other material facilities. Furthermore, it confirms that the complainant confederation and all the other trade unions are entirely free to acquire future assets and to use them in accordance with the legislation in force to carry out their programmes and other trade union activities.
9. 494. The Government believes that all the above shows that international standards and conventions have not been infringed and that the Act of 19 December 1991 is not an obstacle to freedom of association. It points out in this connection that the appeal lodged with the Constitutional Court does not refer to specific infringements of Conventions Nos. 87 and 98. The Government expresses the hope that the conclusions of the Committee on Freedom of Association will contribute to the process of democratization in the country.
10. 495. In the same communication, the Government transmitted a copy of the text of the judgement of the Constitutional Court dated 27 July 1992. The Court had before it two appeals lodged respectively on 19 February 1992 by a group of 48 members of Parliament and on 5 March 1992 by a group of 51 members of Parliament, alleging that the Act of 19 December 1991 violates the Constitution and the international standards and Conventions ratified by Bulgaria. The Court rejected the appeal and ruled that the Act had been promulgated with a view to eliminating the effects of the close relationship between the Bulgarian Communist Party and the former trade unions and to giving the State the possibility of recovering funds which the former trade unions had used to grow rich in an unjustified manner at the expense of the State. In accordance with the principles of political pluralism, the Act seeks to separate the State from political organizations and this operation is compatible with the new Constitution. As regards the alleged infringement of Conventions Nos. 87 and 98, the Court believed that since these Conventions are based on the principle that trade unions are distinct and financially independent from the State, the Act is not an obstacle to the rights guaranteed by these instruments.

C. The Committee's conclusions

1. 496. The Committee notes that this case concerns the issue of the devolution of assets acquired by Bulgarian trade unions after 9 September 1944. The case may be summarized as follows.
2. 497. Under the communist regime, trade unions had acquired a considerable volume of assets with resources obtained from the State and contributions from their members. The assets thus accumulated were very large because the functions exercised by the trade unions went well beyond the traditional activities carried out by workers' organizations in the defence of the interests of their members. They included in particular activities in such varied spheres as social security, leisure activities, labour placement offices, etc.
3. 498. Following the disappearance of the Central Council of Bulgarian Trade Unions (CCBT), the Confederation of Independent Trade Unions in Bulgaria, the complainant organization in this case, declared itself the successor to the financial and other assets of the CCBT when it adopted its statutes in 1990. It has stated that it had restored to the government authorities the share of state assets which were previously managed by the trade unions.
4. 499. In the context of the country's democratization process, the National Assembly adopted on 19 December 1991 an Act which declared illegal the acquisition of the assets of the Communist Party and various organizations linked to it, including the Central Council of Bulgarian Trade Unions. The assets thus acquired by these organizations were confiscated. Subsequently, as regards trade union organizations, the Council of Ministers provided the CITB and Podkrepa trade union confederations, in accordance with the confiscation Act, "the indispensable premises and furniture required for the carrying out of their activities". According to the Government, the municipal authorities, as required by the provisions of the Act, also provided material and equipment to the regional structures of the CITB.
5. 500. In two appeals alleging the unconstitutionality of the Act respecting trade union assets, the Constitutional Court dismissed the plaintiffs' case and ruled that the Act was consistent with both the national Constitution and the international obligations of Bulgaria, in particular as regards Convention No. 87.
6. 501. The CITB claims that the Act in question is contrary to the principles of freedom of association in that it constitutes an interference in the internal activities of trade unions. For the Government, on the other hand, the Act is not an obstacle to freedom of association but, on the contrary, seeks to establish a separation between trade unions and the State.
7. 502. In examining this case, the Committee is fully aware of the great complexity of the matters raised. This complexity is due to several factors: the diversity and origin of the resources held by the former Bulgarian trade unions (state subsidies and contributions from their members), the nature of the functions assigned to them (activities of a trade union nature and functions of an administrative nature), the emergence of trade union pluralism.
8. 503. The Committee is also aware that the democratization process in the country and the new trade union situation required the introduction of measures by the Government. It was in particular indispensable that the question of the devolution of trade union assets accumulated by the former Bulgarian trade unions should be solved without delay, on the one hand, because part of the functions which were previously assigned to trade unions would, within the framework of democratization, be restored to the State and, on the other hand, because the unilateral appropriation of trade union assets by the Confederation of Independent Trade Unions in Bulgaria alone could not be considered as either legitimate or satisfactory in a situation of trade union pluralism.
9. 504. Because of this need for intervention by the State, the use of legislation to solve the question of the devolution of trade union assets may not, in the opinion of the Committee, be considered in itself as incompatible with the principles of freedom of association. There remains however the question of the methods fixed by the Act concerning the scope of the assets confiscated and the restoration to the trade unions of part of the assets.
10. 505. As regards the scope of the assets confiscated, it appears from the statements of the complainant organization that the assets formed by voluntary contributions from members of the CITB since its establishment in February 1990 were included in the confiscated assets. This assertion has not been denied by the Government. The Committee believes that this part of the assets should be considered unambiguously as belonging to the CITB and should therefore not have been confiscated.
11. 506. As regards the problem of the restoration to trade unions of a part of the confiscated assets, the Committee must recall that when it examined a case concerning the devolution of trade union assets, it emphasized the importance of the principle that assets should be used for the purposes for which they were acquired. (See 194th Report, Case No. 900 (Spain), para. 261.)
12. 507. In the present case, the Committee believes that it was necessary to make a distinction, as was made by the Act in question, between the activities of the former trade unions which could be considered as trade union activities for the promotion and defence of workers' interests as used in Article 10 of Convention No. 87 and, on the other hand, other activities which could be considered as functions normally exercised by the State.
13. 508. In this connection, the Committee notes that, according to the Government, the assets recovered by the State under the Act constitute only a small part of the assets which the Bulgarian trade unions acquired from 1944. The Government adds that these resources have now been allocated to different functions, a large number of which, in the Government's view, normally fall within the competence of the State and not that of trade union organizations. Noting that the Government states that it has now taken over these functions and that the assets recovered by the State will be used for this purpose, the Committee believes that the recuperation of assets with a view to carrying out functions which cannot be considered as trade union activities as such does not violate the principles of freedom of association.
14. 509. The Committee notes, furthermore, that the Government had returned free of charge some of the assets which had been recovered by the State under the Act of 19 December 1991. It notes in particular Decision No. 26 of 20 January 1992 whereby some assets were given to the central directorate of the CITB and Decision No. 22 of 11 February 1991 under which an administrative building was allocated to the central directorate of the Podkrepa Confederation. The Committee notes furthermore that the municipal authorities have supplied the regional branches of the CITB with buildings and other material facilities.
15. 510. The Committee must however note that, despite this restoration of assets to trade union organizations, differences do clearly exist between the Government and the complainant organization on the distribution of trade union assets. On the one hand, the CITB claims that at the time of the adoption of the Act all the state assets which the trade unions were called upon to manage previously had been returned to the State, and that this was confirmed by an inspection carried out in 1991 by the Ministry of Finances. On the other hand, the CITB alleges that the scope of the assets returned to the trade unions was evaluated unilaterally by the Government.
16. 511. Therefore, the central problem of the devolution of trade union assets does not seem to have been resolved to the satisfaction of all the parties concerned. In the view of the Committee, such a situation could have been avoided if the Government had, before the adoption of any decision, duly consulted the representative trade union organizations of the country. The Committee therefore believes that it would be desirable for the Government and all the trade union organizations concerned to establish, as soon as possible, a formula which would settle the allocation of funds covered by the Act of 19 December 1991 so that, on the one hand, the Government could recover the social assets that correspond to the accomplishment of the functions which it is now exercising and, on the other hand, to ensure that all the trade unions are guaranteed on an equal footing the possibility of effectively exercising their activities in a fully independent manner. It requests the Government to provide information on the development of the situation and, in particular, on any agreement which may be reached in this respect.
17. 512. Finally, the Committee notes that the Government has not replied to the allegations concerning the judicial proceedings under way against Mr. Ivan Neikov, Vice-President of the CITB, and the restrictions on freedom of movement which prevented him from attending the International Labour Conference. It requests the Government to provide its observations on this point without delay.