CONCURRING OPINION OF JUDGE FURA-SANDSTRÖM

After some hesitation I voted with the majority in finding a violation of Article 1 of Protocol No. 1 although I would have preferred to have the case examined under Article 11 of the Convention for the following reasons:

Having reached the conclusion that the right to negative freedom of association under the Convention is weaker than the positive right, the Labour Court in its judgment of 7 March 2001 put the emphasis on the undisputed fact that the applicants were never under pressure or forced to join the Union . Hence there was no violation of their negative freedom of association, which under domestic law is exclusively based on the Convention. Referring to the European Court ’ s case-law, the Labour Court considered that only the core of the negative freedom of association was protected under Article 11, meaning that a person must have been subjected to a certain measure of force or at least strong pressure to join an organisation in order to give rise to a violation of that Article (see paragraph 15 of the judgment). Assuming that the Court ’ s case-law on the negative freedom of association can be interpreted in this way, it might be fair to describe it as somewhat undeveloped and conservative to date. Perhaps this case was not the appropriate one for developing the case-law further to include other situations than those where actual force or strong pressure had been exercised.

The applicants claim, among other things, that they cannot see where their money has gone. The lack of transparency of the accounts and other reports from Byggettan leads them to suspect that the fees levied on their wages might have been contributing to the general activities of “an organisation with a political agenda which they did not support ” (see paragraph 62 of the judgment, my emphasis), which they find contrary to their rights under Article 11. Having regard to the financial information made available concerning the Union ’ s monitoring work, I find that the applicants ’ suspicions in this respect were justified. Using the same reasoning as the national court, I find that the complaint falls within the ambit of Article 11 and, contrary to the national court, that there was a violation, since the Government failed in their positive obligation to protect the interests of the applicants (see paragraph 63 of the judgment). Taking this approach it would not have been necessary to examine the complaint under Article 1 of Protocol No. 1, which in my opinion would have been a more satisfactory line of reasoning, especially in view of the relatively small sum levied, in all about 160 euros per applicant.

[1] Approximately 390 euros (EUR) according to an exchange rate of EUR 1 = SEK 9.