Information Note on the Court’s case-law 82

January 2006

Sørensen and Rasmussen v. Denmark [GC] - 52620/99 and 52562/99

Judgment 11.1.2006 [GC]

Article 11

Article 11-1

Form and join trade unions

Not join trade unions

Obligation to join trade union as condition of employment: violation

Facts : The first applicant was offered a short-term job as a holiday-relief worker, one of the conditions of employment being that he become a member of a trade union, SID. On receiving his first pay slip, he realised that he was paying a subscription to that union, although he had applied for membership of a different union. He informed his employer that he did not want to pay the subscription to SID and as a result he was dismissed for not satisfying the requirements for obtaining the job. The second applicant was offered a job as a gardener on the condition that he become a member of SID, with which the employer had entered in to a closed shop agreement. The applicant, who had been unemployed, joined SID so that he could take up the job, although he did not agree with the union’s political views.

Law : Article 11 – Freedom of association encompasses a negative right of associatio n, which is a right not to be forced to join an association. An individual could not be considered to have renounced his negative right where, in the knowledge that trade union membership was a precondition of employment, he had accepted an offer of employ ment notwithstanding his opposition to that condition. Thus, a distinction between pre-entry and post-entry closed shop agreements was not tenable. Moreover, while the essential object of Article 11 is to protect the individual against arbitrary interferen ce by public authorities with exercise of the rights protected, the authorities may in certain circumstances be obliged to intervene in the relationship between private individuals by taking reasonable and appropriate measures to secure the effective enjoy ment of those rights. Consequently, the State’s responsibility will be engaged if it fails to secure the negative right of association under domestic law. In that respect, whether the State has a positive or a negative obligation, the applicable principles are similar: a fair balance must be struck between the competing interests of the individual and of the community. In the area of trade union freedom, the State enjoys a wide margin of appreciation but that margin is reduced considerably if the domestic l aw permits closed shop agreements which run counter to the individual’s freedom of choice. In that connection, particular weight must be attached to the justifications advanced by the authorities and account must be taken of changing perceptions of the rel evance of closed shop agreements.

In the case at issue, the fact that the applicants had accepted membership of the union as a condition of employment did not significantly alter the element of compulsion inherent in having to join a trade union against th eir will. Although it was not in dispute that the first applicant could have found similar employment with an employer who had not entered into a closed shop agreement, he was nevertheless dismissed without notice as a direct result of his refusal to compl y with the requirement to join SID, a requirement which had no connection with his ability to perform the job. In the Court’s opinion, such a consequence could be considered serious and capable of striking at the very substance of the freedom of choice inh erent in the negative right to freedom of association. As to the second applicant, it was speculative whether he could have found employment elsewhere but it was certain that if he had resigned his membership of SID he would have been dismissed without any possibility of reinstatement or compensation. The Court was therefore satisfied that he was individually and substantially affected by the application of the closed shop agreement to him. Both applicants were thus compelled to join SID and that compulsion struck at the very substance of their freedom of association. The Court considered that legislative attempts to eliminate the use of closed shop agreements in Denmark reflected the trend in Contracting States not to regard such agreements as an essential means of securing the interests of trade unions and to give due weight to the right of individuals to join a union of their choice, without fear of prejudice to their livelihood. These attempts were furthermore consistent with developments on the internati onal level, notably pursuant to the European Social Charter. Taking all the circumstances into account, the Court found that the respondent State had failed to protect the applicants’ negative right to trade union freedom.

Conclusion : violation (twelve vot es to five with regard to the first applicant and fifteen votes to two with regard to the second applicant).

Article 41 – The Court made an award in respect of pecuniary damage with regard to the first applicant. Neither applicant had claimed non-pecuniary damage. The Court also made awards in respect of costs and expenses with regard to both applicants.

© Counc il of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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