Interim Report - Report No 358, November 2010

Case No 2733 (Albania) - Complaint date: 04-SEP-09 - Closed

Allegations: The complainant organization alleges that in 2007 both Albanian trade union confederations were expelled from their premises and not permitted to pursue their activities. The complainant further alleges that a bill to confiscate the assets of all Albanian trade unions was approved by the Council of Ministers and is expected to be passed for approval to the Parliament in September 2009

1. 124. The complaint is contained in communications from the Independent Trade Unions of Albania (BSPSH) dated 4 and 29 September 2009.
2. 125. The Government forwarded its partial response to the allegations in a communication dated 13 January 2010.
3. 126. Albania 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 complainants’ allegations

1. 127. In a communication dated 4 September 2009, the complainant organization alleges that in 2007 both Albanian trade union confederations were expelled from their premises and not permitted to pursue their activities. The complainant further alleges that a bill to confiscate the assets of all Albanian trade unions was approved by the Council of Ministers and is expected to be passed for approval to the Parliament.
2. 128. As regards the chronology of events, the BSPSH indicates that on 5 June 1992, the President of the Republic issued Decree No. 204 concerning the assets of Albanian trade unions (hereinafter, the 1992 Decree). According to this Decree, the trade unions shared among them by agreement the assets of the former Union of Professions. On 6 May 1998, the 1992 Decree was repealed and Act No. 8340/1 to regulate the effects of the implementation of Decree No. 204 of 1992 was approved (hereinafter, the 1998 Act), recognizing the Albanian trade unions as the sole owners of these assets. The first act of violation occurred in August 2007, when both Albanian trade union confederations were expelled from their premises, and no longer permitted to exercise their normal activity. On 18 August 2009, the Albanian Prime Minister made public via the media a bill on the confiscation of the assets of all Albanian trade unions. The bill has been approved by the Council of Ministers without previous consultations with the trade unions.
3. 129. The complainant considers that the bill is a blow to the Albanian trade union movement, and illustrates a public fraud of the Albanian Prime Minister, who deliberately did not inform the public on the content of the 1998 Act. Having as a principle to solve disputes through social dialogue, the BSPSH has presented a request to the Government on 25 September 2009, with an open letter to the Prime Minister of Albania, to open the dialogue with the unions that have neither been notified nor consulted on the bill. So far, no response has been received. The National Council of the BSPSH has once again urged the Prime Minister to open the dialogue and start negotiations.
4. 130. In its communication of 29 September 2009, the complainant adds that, on 28 September 2009, the bill has passed for approval to the parliamentary Committee of Economy, and that it will not be reviewed by the parliamentary Committee for Labour and Social Affairs, which has direct contact with the unions, nor by any other parliamentary committee. Albanian trade unions have not been invited to any discussion of the bill nor to the sitting of the parliamentary Committee of Economy, where the bill has been examined. No prior consultations with the Albanian unions have been held, and the unions’ request to open the dialogue has not been taken into consideration. The plenary session to review and approve the bill is scheduled on 8 October 2009. Both the parliamentary committees and the plenary sitting are operating only with MPs of the majority, as the MPs of the opposition do not recognize the results of the last parliamentary elections and are not present at the sittings of the Parliament.
5. 131. Highlighting the lack of transparency, the complainant believes that the Government’s goal is the elimination of the Albanian trade union movement by unfairly acquiring union assets. The adoption of the bill by Parliament would beyond doubt lead to the significant weakening and even disappearance of the trade union movement given the socio-economic situation of Albanian workers and the fact that membership fees cannot possibly cover trade union activities. The acquisition of union assets would constitute a social injustice, since those assets have never been state property and belonged to the former Professional Union at the time of dictatorship; it would therefore be legitimate that the property of Albanian workers remains at their or their unions’ disposal. Moreover, there is no compelling legal argument for the abrogation of the 1998 Act that has proclaimed the unions as the owners of these assets.
6. 132. The complainant organization also provides a legal evaluation of the situation. Accordingly, trade unions are legal persons established under the national legislation in force and thus have the right to own property, movable and immovable, and to conduct any legal action related to it. The 1992 Decree has been the first attempt for the legal regulation of the trade union’s property, which needed to be ratified by Parliament. Although the Albanian Parliament decided not to ratify the 1992 Decree, the trade union has already (as of 1992 and following) become the owner of the former Professional Union’s properties and has enjoyed and possessed them freely. Confronted with this situation, the Parliament, on the same day of not ratifying the 1992 Decree, approved the 1998 Act to transfer the former Professional Union’s property to the trade unions. This is clearly illustrated by the wording of several provisions of the 1998 Act. Section 1 provides that the trade union property earned by the implementation of the 1992 Decree comprises all the movable and immovable property and monetary value of the former Professional Union of Albania. Moreover, section 3 deals with the redistribution of the unions’ property in case of the creation of trade unions other than the existing ones, section 4 refers to the immovable property earned by the unions, and section 5 concerns the land owned by the trade unions and the compensation of the former owners.
7. 133. The complainant organization considers that the bill it is now contesting violates both civil and constitutional principles for the following reasons. In its opinion, the terminology used in the 1998 Act proves that the trade unions have become the owner of the Professional Union’s property and not only the possessor as claimed by the Minister of Justice. In addition, the legal restriction of the right of disposition/alienation for the immovable property of the union cannot be used to argue that the trade union is not entitled to the right of property. Article 149 gives the definition of ownership, according to which it is the right to enjoy and possess objects freely, within the provisions of the law. The right to possession is thus one of the owner prerogatives, which can, however, be restricted within the provisions of the law. The complainant refers to Albanian legislation restricting the right to property, such as the Act regarding the sale and purchase of land (1995), which limits the right of foreign natural or legal persons to buy public or private land for investment unless it triples the value of the land, and the Act regarding the transition in ownership of agricultural land, forests, meadows and pastures (1998), which denies to foreign natural or legal persons the right to buy agricultural land, forests, meadows and pastures. An a contrario interpretation of those provisions means that Albanians cannot sell agricultural land to foreigners and can only sell non-agricultural land to foreigners, if they realize an investment of the triple value of the land. Thus, the right to property of all nationals of the Republic of Albania, public or private, natural or legal persons, is limited in relation to foreigners. According to the Minister of Justice’s argument, this restriction would bring about the loss of right to ownership for Albanians, turning them into mere possessors of their properties. This shows that the reasoning is unacceptable and legally absurd. The complainant concludes that the wording of section 4 of the 1998 Act rather intends to protect the property of trade unions from any eventual abuse until the financial consolidation of the organization, and not to deny the ownership right.
8. 134. Another argument used by the Minister of Justice is Decision No. 85/2001 of the High Court, which concerns a conflict born in 1996 and regulates clashes between Act No. 7698 of 15 April 1993 “On the restitution and compensation of former owners” and the 1998 Act. Since in 1996, the Act of 1993 on the restitution and compensation of former owners was already in force, the 1992 Decree was not approved and the 1998 Act was not yet adopted, it is normal that the right of the former owners prevailed. The High Court concludes that whenever the interests of former owners who benefit from restitution of buildings or void land under the Act of 1993 clash with the interests of trade unions that have acquired such buildings or land according to the 1992 Decree (the consequences of which are regulated by the 1998 Act), priority should be given to the interests of former owners. The 1998 Act is applicable to the extent that it does not conflict with the Act of 1993 on the restitution and compensation of former owners. The court stresses that it is understood that the issue is not whether the unions have earned ownership of the property that the State has decided to transfer to them.
9. 135. According to the complainant, the trade unions, in their quality as owners of the assets, have signed agreements in this regard. Consequently, all rights of credit or other rights to their benefit are exclusive rights, and the State cannot take over those rights as provided in the bill. Moreover, the bill creates an unfavourable financial situation for trade unions (state of bankruptcy) because, invoking the legal institute of representation without rights (i.e. non-authorization by the creditor), it divests them of one of the main sources of funding, the revenues from immovable properties, and provides that the State has the right to cede to itself the right of credit, while obligations have been consigned to the unions.
10. 136. Furthermore, the complainant considers that the bill violates the Constitution as follows: (i) article 11(2), according to which private and public property is protected by law. In the present case, the trade union’s property is concealed by the bill; (ii) article 17, according to which constitutional rights can only be limited for a public interest or for the protection of the rights of others, the limitation should be proportional to the situation dictating it and not infringe the essence of the right. In the present case, there is no public interest; the interests affected are both those of the former owners and of the unions. The limitation divests the unions of their property right and is not proportional to the objective, since the former owners’ rights are already protected by restitution and compensation procedures, and the case of a clash between the two interests has already been decided by the High Court in favour of the former owners. The lack of State funds for compensation in case of impossibility to restitute the property should not serve as justification for the bill; (iii) article 41 guaranteeing the right to private property and allowing for expropriation only in the public interest and against fair compensation. In the present case, no public interest has been identified, and the bill does not provide for compensation of the union; (iv) article 42 providing for due process. In the present case, the bill does not provide any tool to file a claim; (v) principle of legal certainty. Property acquired by trade unions about 11 years ago is taken away through this bill, as if it had never existed before, which seriously aggravates their situation. The Constitutional Court, in its Decision No. 9/2007, has stated that legal certainty presupposes the reliance of citizens in the State and the constancy of law for regulated relations. Persons should not continuously be concerned about divergences or negative consequences of legal acts, which could affect their private or professional life, or aggravate a situation deployed by previous acts. The State should seek to change a situation previously regulated only if the change brought about positive consequences. If the measures taken led to deteriorating unreasonably legal situations, denying the rights acquired or ignoring legitimate interests and expectations, the constitutional principle of equality of rights would be violated; (vi) articles 116 and 81 regulating the hierarchy of legal norms. In the present case, the bill amends the Civil Code (legislation with a superior status) as regards credit transfer.

B. The Government’s reply

1. 137. In a communication dated 13 January 2010, the Government indicates that, firstly, the conclusion of the BSPSH that since 1992 and up to now the unions have become owners of the assets is incorrect. The 1992 Decree has not been approved, not even by the 1998 Act, and has never acquired the force of law. Act No. 7491 of 29 April 1991 concerning the main constitutional provisions provides as a constitutional requirement that, in order for a decree of the President of the Republic to acquire force of law, it has to be countersigned by the President of the Council of Ministers or the Minister respectively, and it has to be deliberated by Parliament at its next session. It clearly appears, even according to the two unified decisions of the United Chambers of the High Court Nos 85/2001 and 5/2004, that those constitutional requirements have not been met. In the Government’s view, as the 1992 Decree has never acquired the force of law, the unions have not obtained the right to own the relevant assets.
2. 138. On the same day as it repealed the 1992 Decree, the Parliament approved the 1998 Act. The Act provides that the agreements concluded between trade unions concerning the division of property up to the date of its entry into force should be legally valid unless otherwise provided in the Act, and that the disputes relating to such agreements should be settled by the courts. The real estate properties earned based on this Act cannot be disposed of or alienated until 31 December 2020. The Government concludes from this provision that the unions have the right to enjoy and possess the property, but do not own the real estate assets, because they lack one of the prerogatives of the right to property, namely “the right of alienation”. According to the Government, the 1998 Act is transitory in nature – its title illustrates that its objective has been to regulate the effects of the Decree and not a positive definite regulation for the long term. None of its sections provides for a transfer of property from the State to the unions, and in section 6, the legislative authority explicitly uses the term “administration of property”. Also, the examples given in the document submitted by the BSPSH, namely the Act regarding the sale and purchase of land (1995) and the Act regarding the transition in ownership of agricultural land, forests, meadows and pastures (1998), do not concern the same situation as the issue of trade union property. The above laws deny to foreign natural and legal persons the right to buy public or private real estate, invoking the principle of public interest. This does not affect the right of legal owners to dispose of their property to Albanian persons and therefore does not limit their right to property.
3. 139. Secondly, the Government stresses that the 1998 Act expressly prohibits unions the right to alienate properties administered by them, until 31 December 2020, which demonstrates the willingness of the lawmaker not to transfer the right of ownership to the unions, but only to authorize the administration of certain assets of the State. The reason is that a democratic State has the obligation to support the labour movement as a cornerstone of democracy. Being unable to fund in cash, the Albanian State has chosen the path of transferring the administration of State property to trade unions, hoping that this would create enough revenue for the functioning of the labour movement. However, the administration of State property by the unions has to comply with the legislation in force, in particular section 4 of the 1998 Act (obligation to not alienate the property). As it appears, even according to official information requested by the Minister of Justice from the Local Offices of the Registration of Real Estate, the unions have infringed the principles of administration of State property, as stipulated in section 12 of Act No. 8743 of 22 February 2001 regarding State property: “The administration of public real estate shall ensure: (a) the maintenance and guarantee of public interest; (b) the protection of unique characteristics and values of the property; (c) the safeguarding and increasing of the economic value of the property; (d) the maintenance of ecological indices of the real estate unit, according to the principle of greatest public utility”. The breach of this obligation has even been recognized by the United Chambers of the High Court in Decision No. 5/2004, according to which the unions have benefited from the administration of property to ensure the conditions for vacation and recreation of workers, and subsequently, as in the present case, a considerable portion of property has been sold to third parties who have totally changed their destination. For the above reasons, the Ministry of Justice has prepared the bill and the Assembly of Albania has decided on the approval of the bill to repeal the 1998 Act and no longer grant unions the right to administer State property.
4. 140. Thirdly, the Government refers to the unifying Decisions Nos 85/2001 and 5/2004 of the United Chambers of the High Court and Decision No. 24/2002 of the Constitutional Court, which have rejected the claims of the BSPSH to recognize any legal effect to the 1992 Decree. In its view, this means that the courts have made a definitive interpretation that the unions never acquired the right to property and that the State is the sole owner of such property.
5. 141. Fourthly, the Government indicates that the bill regulates the legal effects arising from the repeal of the 1998 Act. Section 2 deals with the obligation relationships created by trade unions with third parties, including contracts signed between them, and refers to the Civil Code as regards the right to enjoy and possess immovable property. This is a general reference aimed to signal that the object of the bill is not to deviate from the general rules existing under the Civil Code, and does not infringe any, not even constitutional, property rights. With reference to section 466 of the Civil Code, which allows for the execution of the obligation to another person than the creditor (creditor substitution), section 3 deals with trade union credits to ensure the execution of the obligation by third parties in favour of the real owner, the State. Up to now, via the 1998 Act, the State as a creditor has authorized the unions in their quality as persons authorized by the creditor, to debit the income generated by the assets. Cases of representation without right by the trade unions are taken into account, i.e. cases where unions have committed legal acts going beyond the rights granted to them by law on behalf of the State, which as a result has created credits to which the State is entitled. The wording of section 3 is in substance a subsequent approval of the credit and their collection. Regarding cases where the trade unions are the debtors, inasmuch as the unions have not been the de jure owners of the immovable property, every action undertaken by the third parties is invalid and does not create any legal effect for the State. The obligations arising need to be settled case by case in court against the unions at the request of third parties. Should the State be brought before the court as a party, the complaint would be irreceivable since the legal action creating the obligation is contrary to the law and thus null and void.
6. 142. Fifthly, all allegations of violation of the Constitution are based on the claim that the unions have acquired the right to property, which is not the case, as illustrated by Decision No. 24/2002 of the Constitutional Court, according to which the 1992 Decree is nonexistent and thus has no legal effect. According to the Government, it is the right to administer State property that is being removed by the State as the legitimate owner, due to poor administration. The provisions mentioned in the complaint concern property rights and as a result cannot be used to argue the non-compliance of the bill, which does not affect the right to property.
7. 143. Regarding the alleged violation of the principle of legal certainty, the Government refers to the law of the European Union, according to which this important principle is closely linked to the principle of legitimate expectations and the prohibition of retroactivity, and enumerates certain cases recognized as infringing the principle: (1) lack of publicity of the law; (2) abuse arising from retroactivity; (3) ambiguity of legislation; (4) adoption of conflicting legislation; (5) adoption of legislation requiring contributions going beyond the possibilities of the persons concerned; (6) frequent changes of the law; (7) incompatibility between the objective of the lawmaker and those who apply the law; and (8) law of temporary character. In the Government’s view, the bill does not meet any of these criteria.
8. 144. The Constitutional Court, in its Decision No. 26/2005, has considered that the principle of legal certainty presupposes the faith of citizens in the State and the invariability of laws as regards regulated issues. Citizens should not live in constant fear that normative Acts could change to the worse as compared to previous Acts. However, the principle is not applicable where the certainty regarding a legal situation is not justified and cannot possibly be met. Also, the Constitutional Court has emphasized that the principle cannot prevail in all cases, for instance a public interest can easily take priority. The principle of legal certainty cannot eliminate all negative consequences that might arise for individuals through new provisions because it is indivisible from the principle of the welfare state. The Government concludes that the bill is not unconstitutional, owing to the existence of a prevailing public interest and because the bill does not aggravate the property situation of the trade unions, since they have never acquired the right to the property but only the right to administer it. The benefit of a right granted by a legally invalid Act is not protected by the principle of legal certainty. The State has merely deprived subjects that have mismanaged its property of the right to administer it, in line with the principle of legal certainty which, in fact, demands to restore violated laws.
9. 145. Sixthly, the Government refutes the alleged violation of articles 116 and 81bis of the Constitution concerning the hierarchy of normative Acts, because section 3 of the bill refers to the provisions of the Civil Code without deviating from it. The reference is appropriate, since through the withdrawal of the right of administration, the unions have lost their quality as “the person authorized by the creditor” provided for under the Civil Code, and thus the obligations have to be executed in favour of the creditor, i.e. the State.

C. The Committee’s conclusions

1. 146. The Committee notes that, in the present case, the complainant organization alleges that in 2007 both Albanian trade union confederations were expelled from their premises and not permitted to pursue their activities. The complainant further alleges that a bill to confiscate the assets of all Albanian trade unions was approved by the Council of Ministers and is expected to be passed for approval to the Parliament in September 2009.
2. 147. The Committee notes that, on 5 June 1992, the President of the Republic issued Decree No. 204 concerning the property of Albanian trade unions (hereinafter, the 1992 Decree), which needed to be ratified by Parliament. According to this Decree, the movable and immovable property of the former Professional Union that served for trade union activity and professional education of employees, was to be owned by the trade unions and should be divided among them by agreement. On 6 May 1998, the Albanian Parliament decided not to ratify the 1992 Decree, and approved Act No. 8340/1 to regulate the consequences rising from the implementation of the 1992 Decree (hereinafter, the 1998 Act).
3. 148. The Committee also notes that, according to the complainant, the objective of the new bill is to confiscate the property of Albanian trade unions. The BSPSH emphasizes that, although the Albanian Parliament decided not to ratify the 1992 Decree, the trade unions have, as of 1992, enjoyed and possessed freely the former Professional Union’s properties. In accordance with section 149 of the Civil Code, the right to enjoy and possess objects freely, within the provisions of the law, is an owner prerogative. According to the complainant, the trade unions therefore became owners of the property in 1992. As clearly illustrated by the wording of several provisions, the 1998 Act transfers the former Professional Union’s property to the Albanian trade unions and recognizes them as the sole owners of these assets. The complainant adds that the legal restriction of the right to alienation of the immovable property of the unions (section 4 of the 1998 Act) does not infer that the trade unions are not entitled to the right of property. In line with the definition of ownership in section 149 of the Civil Code, the right to possession can be restricted by law without entailing the loss of right to ownership. The complainant concludes that section 4 rather seeks to protect trade union property from any abuse until the financial consolidation of the organization. In addition, according to the complainant, Decision No. 85/2001 of the High Court provides that, when the interests of former owners who benefit from restitution of buildings or land under the Act of 1993 clash with the interests of unions that have acquired such buildings or land according to the 1992 Decree (the consequences of which are regulated by the 1998 Act), priority will be given to the interests of former owners, which means that the 1998 Act is applicable to the extent it does not conflict with the Act of 1993. The complainant maintains that the decision is based on the understanding that the ownership by the unions of the property that the State has decided to transfer to them is not at issue. Finally, the complainant contends that the principle of legal certainty is violated by the fact that property acquired by trade unions 11 years ago is taken away through this bill, as if the unions’ rights thereto had never existed before, which seriously aggravates the situation of the unions. The trade unions, in their quality as owners of the properties, have signed agreements giving rise to rights of credit or other rights to their benefit that are exclusive. The bill creates an unfavourable financial situation for trade unions (state of bankruptcy) because it divests them of one of their main sources of funding, i.e. the revenues from immovable properties, by providing that the State has the right to cede to itself the right of credit, while obligations are consigned to the unions.
4. 149. The Committee notes the Government’s contention, however, that the conclusion of the BSPSH that the unions have become owners of the assets is incorrect. The Government adds that, under articles 28(19) and 29 of the 1991 Constitution, decrees of normative character issued by the President of the Republic in urgent cases need to be submitted for approval to the people’s assembly at its nearest session and countersigned by the chairman of the Council of Ministers or by the respective minister. The Government stresses that neither of the two constitutional requirements were fulfilled in the case of the 1992 Decree. Thus, as illustrated by Decisions Nos 85/2001 and 5/2004 of the High Court and 24/2002 of the Constitutional Court, the Decree did not acquire the force of law. The courts have thus made a definitive interpretation that the unions have not acquired the right to property and that the State is the sole owner of such property. The Government also concludes from section 4 of the 1998 Act that the unions, while having the right to enjoy and possess the real estate properties, do not own them because they lack a prerogative of the right to property, “the right of alienation”. The Act is transitory in nature, since its objective has merely been to regulate the effects of the 1992 Decree and not a positive definite regulation. None of its sections provide for a transfer of property from the State to the unions, and in section 6, the legislative authority explicitly uses the term “administration of property”. These provisions demonstrate the decision of the lawmaker not to transfer the right of ownership to the unions, but only to authorize the administration of certain assets of the State to support the labour movement. In addition, the administration of State property by the unions had to comply with section 4 of the 1998 Act (obligation to not alienate the property). According to official information and High Court Decision No. 5/2004, the unions have infringed the principles of administration of State property and sold a considerable portion of the properties to third parties who have totally changed their destination. The right to administer State property is therefore being removed from the unions by the State as the legitimate owner, due to poor administration. According to the Government, the bill regulates the legal effects arising from the repeal of the 1998 Act. In cases of trade union credits, the obligations of third parties have to be executed in favour of the creditor and real owner (the State), since the unions lose their quality as “person authorized by the creditor” through the withdrawal of the right to administration. In cases where unions are the debtors, every action undertaken by third parties is null and void and does not create any legal effect for the State, as the unions were not the de jure owners of the property. Finally, regarding the alleged violation of the principle of legal certainty, the Constitutional Court has emphasized that the principle is not applicable where the certainty regarding a legal situation is not justified, and that it cannot prevail in all cases, for instance a public interest can easily take priority. The Government concludes that the principle is not infringed because there is a prevailing public interest and the bill does not aggravate the property situation of the trade unions, since they have not acquired the right to property but only the right to administer it, and the right granted by a legally invalid act is not protected.
5. 150. While both parties to the complaint agree that the 1992 Decree was not ratified by Parliament and has thus never acquired the force of law, as illustrated by Decisions Nos 85/2001 and 5/2004 of the High Court and No. 24/2002 of the Constitutional Court, their conclusions as to whether the unions have acquired the full rights to the property in question diverge. The Committee, however, notes the complainant’s indication that a certain number of elements may have given rise to expectations on the part of the unions as to the validity of this first legal regulation of the ownership of assets of the former Professional Union, which was dissolved after the dictatorship, for example: according to its section 4, the 1992 Decree enters into force immediately; the required submission for approval to Parliament at its nearest session actually only occurred six years later; the title of the 1998 Act (“On the regulation of the circumstances rising from the implementation of the Decree”) recognizes the existence of certain effects deployed by the Decree during the six-year period prior to its repeal; and the unions have freely enjoyed and possessed the relevant properties since 1992.
6. 151. Looking at the historical background of this case going back to the dissolution of the Professional Union in 1992, the Committee wishes to recall that it has previously had the occasion to review questions of the assets of trade unions dissolved following transition periods. In this regard, the Committee has accepted the criterion that, when an organization is dissolved, its assets should be provisionally sequestered and eventually distributed among its former members or handed over to the organization that succeeds it, meaning the organization or organizations which pursue the aims for which the dissolved union was established, and which pursue them in the same spirit [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 706]. The Committee has repeatedly pointed out that, when a union ceases to exist, its assets could be handed over to the association that succeeds it or distributed in accordance with its own rules; but where there is no specific rule, the assets should be at the disposal of the workers concerned [see Digest, op. cit., para. 707]. With regard to the issue of the distribution of trade union assets among various trade union organizations following a change from a situation of trade union monopoly to a situation of trade union pluralism, the Committee has emphasized the importance it attaches to the principle according to which the devolution of trade union assets (including real estate) or, in the event that trade union premises are made available by the State, the redistribution of this property must aim 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 would be desirable for the Government and all the trade union organizations concerned to make efforts to conclude as soon as possible a definitive agreement regulating the distribution of the assets of the former trade union organization [see Digest, op. cit., 2006, para. 708].
7. 152. The Committee now observes from the Government’s reply that, since the filing of the complaint, the Assembly of Albania has approved the bill denounced by the complainant. The Committee also notes that both the complainant and the Government cite Decisions Nos 85/2001 and 5/2004 of the High Court and Decision 24/2002 of the Constitutional Court as relevant to the case. It requests the Government to supply the texts of the new law as adopted as well as of the relevant court rulings.
8. 153. More generally, however, the Committee cannot but express its regret at the lack of consultations before and during the adoption process of this bill that could have an impact on workers’ organizations, affecting their stability and their capacity to carry out trade union activities. Despite several attempts the complainant claims to have made to open the dialogue, national trade unions were apparently not able to give their views at the sitting of the parliamentary committee where the bill was examined. In this regard, the Committee wishes to emphasize the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights [see Digest, op. cit., para. 1074].
9. 154. The Committee recalls that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions. It is therefore not within its mandate to give an opinion as to the nature of the property right acquired by the complainant following the dissolution of the professional union, especially as regards the question of the right of alienation of the property. The Committee wishes to emphasize, however, that it would have been more conducive to harmonious labour relations in the country as well as to the stability of the trade union movement as a whole had the precise nature of these rights been determined at the time of transition and in full consultation with all the interested parties.
10. 155. Given the contradictions between the complainant and the Government as to the nature of the rights acquired to the property in question, the Committee urges the Government, in keeping with the principles of tripartism and social dialogue, to enter into full and meaningful consultations with the relevant social partners with a view to finding a mutually acceptable and definitive solution with respect to the property in question, thus clarifying the rights and responsibilities and ensuring that the trade unions in the country may carry out their activities in full knowledge thereof. Given that the administration of property was likely to constitute an important means by which the trade unions were able to effectively function and defend the interests of their members, as stated by the Government itself in its reply, the Committee expects that the solution found with respect to the question of trade union property will ensure that the unions have available to them the necessary means to pursue their legitimate trade union activities. Bearing in mind the extremely negative consequences that a total and definitive removal of any rights to these assets entails for the complainant and for the Albanian trade union movement as a whole, the Committee requests the Government to undertake the necessary consultations without delay and to keep it informed of the outcome of these discussions.
11. 156. The Committee further notes that the BSPSH alleges that in August 2007, the two national trade union confederations were expelled from their premises and have not been permitted to exercise their normal activity. Given the scarcity of the information available to it in relation to the alleged 2007 expulsion and any measures impeding the confederations from carrying out their legitimate trade union activities, it is unclear to the Committee whether the expulsion was in any way linked to the Government’s contention that the confederations had acted beyond their lawful rights under the 1992 Decree and 1998 Act or wholly independent thereof. In view of the serious nature of these allegations and their relevance to the case as a whole, the Committee requests the complainant organization to provide supplementary and up-to-date information in this regard and urges the Government to reply fully in respect of both of these allegations.

The Committee's recommendations

1. 157. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to supply the texts of the new law relating to trade union assets as adopted, as well as of Decisions Nos 85/2001 and 5/2004 of the High Court and Decision No. 24/2002 of the Constitutional Court.
   • (b) The Committee urges the Government, in keeping with the principles of tripartism and social dialogue, to enter into full and meaningful consultations with the relevant social partners, with a view to finding a mutually acceptable and definitive solution as regards the property in question, thus clarifying the rights and responsibilities and ensuring that the trade unions in the country may carry out their activities in full knowledge thereof. Given that the administration of property was likely to constitute an important means by which the trade unions were able to effectively function and defend the interests of their members, as stated by the Government itself in its reply, the Committee expects that the solution found with respect to the question of trade union property will ensure that the unions have available to them the necessary means to pursue their legitimate trade union activities. Bearing in mind the extremely negative consequences that a total and definitive removal of any rights to these assets entails for the complainant and for the Albanian trade union movement as a whole, the Committee requests the Government to undertake the necessary consultations without delay and to keep it informed of the outcome of these discussions.
   • (c) Given the serious nature of the allegations that the two national trade union confederations were expelled from their premises in 2007 and have not been permitted to exercise their normal activity, and their relevance to the case as a whole, the Committee requests the complainant to provide supplementary and up-to-date information in this regard and urges the Government to reply fully in respect of both of these allegations.