In a 10 November 2021 judgment,(1) the Supreme Court had to determine whether it was legal for a trade union to offer €100 holiday resort vouchers to its members as a reward for voting in the union elections.
The elections were called on 8 May 2019 for workplaces that were part of the Health Department of the Community of Madrid.
On 3 May 2019, the Spanish Trade Union of Nursing Professionals (SATSE) in Madrid made the following announcement through different media outlets:
SATSE MADRID - The Nursing Union wants to mark its participation in the SERMAS union elections next May 8 with its members. Therefore, a €100 gift voucher will be given by SATSE Madrid to every member who has exercised their right to vote (*). This voucher can be used at SATSE Resorts in Jaca or Moncófar redeemable all year long and valid until December 2021.* Request proof of voting and consult your SATSE Madrid Delegate.
Comisiones Obreras filed a joint claim with other unions on the grounds that the €100 voucher offered by the SATSE violated the right to freedom of association of the other unions that were participating in the electoral process.
The High Court found that the voucher had no impact on the electoral process and it did not entail a violation of the right to freedom of association, as it was directed exclusively to members of the SATSE and was linked to their participation in the elections.
In view of this decision, Comisiones Obreras appealed against the High Court's ruling.
The Supreme Court stated in its ruling that, although the decision regarding the voucher could not change the outcome of the election, the appellant trade union could still obtain a ruling that would declare the lawfulness or unlawfulness of the SATSE's actions and any other similar practices.
When analysing the merits of the case, the Supreme Court pointed out that no existing laws regulated the union election process.
However, article 146.1, section A of Law 5/1985 on the General Electoral Procedure (LOREG) declares that to directly or indirectly request the vote of a participant or persuade them to abstain from voting through rewards, gifts, remunerations or promises is classified as criminal activity.
The Supreme Court clarified that the above section of Law 5/1985 provided for criteria to assist in the resolution of the disputed issue and that the SATSE's behaviour did not amount to criminal activity. In addition, it clarified that the scope of application of the LOREG was exclusively designed for electoral processes relating to members of citizen representation bodies.
The Supreme Court's intention with this ruling was to declare the prohibition of practices intended to obtain votes in exchange for rewards as a fundamental principle of any democratic election system. In this regard, the Court stated that union elections must abide by the principles of any democratic election system.
Therefore, the Supreme Court determined that the vouchers that the SATSE had offered was a way of indirectly requesting votes in favour of their candidates, which was a serious interference of the clarity that should prevail over any democratic representative election system. Therefore, the Court declared that the SATSE's actions constituted a violation of the fundamental right to freedom of association. Subsequently, the Court ordered the SATSE to pay €3,000 in damages for violation of fundamental rights.
For further information on this topic please contact Elena Esparza or Eva Ceca at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] and [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.
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