PARTLY DISSENTING AND PARTLY CONCURRING OPINION

          OF MRS. JANE LIDDY, JOINED BY Mr. I. CABRAL BARRETO

As to Article 11

1.    The Court has stated that compulsion to join a particular trade

union may not always be contrary to the Convention, but if the

compulsion takes a form which "strikes at the very substance" of the

freedom of association, there may be a violation of Article 11

(Eur. Court H.R., Young, James and Webster judgment of 13 August 1981,

Series A no. 44, pp. 22-23, para. 55).

2.    In the present case the applicant was not compelled to join any

association. He was put under severe pressure by trade unions to sign

an agreement undertaking to apply the collective labour agreement

concluded between employers' associations and the Hotel and Restaurant

Workers Union, which in turn would have put pressure on him to

reorganise his workforce and their conditions of employment.

3.    This pressure on the applicant to refrain from regulating his

relations with his employees by means of private contracts leads the

majority to conclude that the applicant's freedom of association was

"affected". They do not go so far as to say that the compulsion struck

at the very substance of freedom of association.

4.    The Commission has stated that the "term `association'

presupposes a voluntary grouping for a common goal" (Young, James and

Webster v. the United Kingdom, Comm. Report 14.12.79, Series B no. 39,

p. 47, p. 167). In the present case, the applicant was quite free to

remain outside any "grouping". He was free not to become a member of

any association. The pecuniary effects of the coercion to which he was

subjected fall, in my view, for consideration under Article 1 of

Protocol No. 1.

5.    In the circumstances, I consider that the coercion applied by the

trade unions did not strike at the very substance of the applicant's

negative freedom of association, and that, accordingly, there has been

no violation of Article 11.

As to Article 1 of Protocol No. 1

6.    The majority have accepted that the blockade and boycott to which

the applicant's business was subjected had such severe financial

consequences that the applicant finally found it necessary to sell his

restaurant. I agree with this assessment.

7.    The first sentence of Article 1 of Protocol No. 1 reads "Every

natural or legal person is entitled to the peaceful enjoyment of his

possessions". The question arises as to whether this provision imposed

a positive obligation on the State to protect the applicant from

industrial actions on the ground that they were disproportionate in

view of the conflicting interests to be balanced. Such an obligation

would imply a requirement to provide a legal framework within which an

allegedly unjustified action could be challenged by reference to the

competing interests.

8.    The Court has stated that the first sentence of Article 1 of

Protocol No. 1 requires a fair balance to be struck between the demands

of the general interest of the community and the requirements of the

protection of the individual's fundamental rights. Where a feature of

the law concerning expropriation was its inflexibility, where the law

excluded the possibility of reassessing at intervals the interest of

the City of Stockholm and the interests of property owners and where

the law did not provide for a reduction of time-limits or for

compensation, the Court took the view that "it was in [the applicants']

legal situation itself that the requisite balance was no longer to be

found" (the above-mentioned Eur. Court H.R., Sporrong and Lönnroth

judgment, pp. 26-28, paras. 70-73).

9.    I consider that a distinction can be made between State

intervention in a labour conflict and intervention in normal business

activities on the open market. Neither type of intervention is,

however, uncommon in at least some member States. State bodies may

actively intervene to restore industrial peace. Legislation may allow

for the modification of unreasonable conditions in the field of

contract law. Above all, the State has an overall responsibility for

the setting up of a judicial framework within which disputes between

private parties may be resolved.

10.   In the present case it does not appear that the industrial

actions served any genuine interest to maximise industrial peace or any

genuine interest of the applicant's employees, whose employment

conditions were better than if their contracts had been governed by a

collective agreement. Moreover, the applicant was placed in a dilemma.

One of the substitute agreements proposed to him contained a "closed

shop" clause prohibiting him from hiring employees who were not members

or prospective members of the Hotel and Restaurant Workers Union. Had

he signed this agreement, he would have been faced with the dilemma

either of violating the re-employment clause in his contracts with all

but one of his employees, or trying to require those employees to

become members of the union, although such a membership had not been

a requirement at the time of their initial employment. In the event,

he was obliged to sell his restaurant.

11.   The emerging picture is thus essentially that of a weaker party -

the applicant - trying to fend off actions interfering with his

property rights and contracts taken by a stronger party - the unions -

in order to become an instrument in goals that were not his own, and

which he was not legally bound to fulfil. I note that from 1994 legal

protection in this field is available in Sweden to individuals who are

self-employed or who employ only family members.

12.   Having regard to all the circumstances, I consider that the

tolerance on the part of the State of the industrial actions against

the applicant's business made him bear an individual and excessive

burden which could have been rendered legitimate only if he had had the

possibility of effectively challenging the actions so that the

competing interests could be independently assessed at domestic level.

No such possibility existed under domestic law. The fair balance to be

struck between the general interest in tolerating the industrial

actions at issue and the applicant's right to the peaceful enjoyment

of his possessions was therefore upset. I see no further issue under

Article 17, but conclude that there has been a violation of Article 1

of Protocol No. 1.

As to Article 6

13.   I agree with the majority that, for the reasons given in the

Report, there has been no violation of Article 6.

As to Article 13

14.   The complaints under both Article 11 and Article 1 of

Protocol No. 1 were "arguable". I agree with the majority that because

no effective court or other remedy was available to the applicant,

there has been a violation of Article 13.

                                                         (Or. French)