JOINT CONCURRING OPINION OF JUDGES TÜRMEN, FURA-SANDSTRÖM AND POPOVIĆ

We voted with the majority for finding a violation of Article 11.

Although we also basically agree with the reasoning adduced in the judgment, we would have preferred to take a broader approach to the questions of the right of public officials to form and to join trade unions under Article 11 and the right to collective bargaining.

Two separate questions of principle are involved in the present case. The first is whether the right to form and to join a trade union under Article 11 also encompasses an obligation to negotiate for the possible conclusion of an agreement. The second question is whether public officials enjoy trade union rights under Article 11 to the same extent as other employees, including the right to collective bargaining.

1. The right to collective bargaining constitutes an obligation to negotiate for the possible conclusion of an agreement. There is no obligation to reach an agreement however, as negotiations may fail and can be followed by strike action and other collective actions.

ILO Conventions n os. 87, 98 and 154 on freedom of association and freedom of collective bargaining provide that the regulation of working conditions is to be promoted by free unions and free employers in free negotiations. The Government ’ s obligation under these ILO Conventions is to abstain from interfering with this procedure.

Article 6 of the European Social Charter bears the title: “The right to bargain collectively” and goes on to state that “with a view to ensuring the effective exercise of the right to bargain collectively” the Contracting Parties undertake to promote machinery for voluntary negotiation “between employers or employers ’ organisations and workers ’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”.

In 1995 the Committee of Independent Experts set up under Article 25 of the Social Charter observed that “where a fundamental trade union prerogative such as the right to bargain collectively was restricted, this could amount to an infringement of the very nature of trade union freedom”.

The EU Charter of Fundamental Rights in Article 28 mentions explicitly “the right to negotiate and conclude collective agreement s ”.

The above-mentioned provisions indicate that there is a well-established practice of considering collective bargaining as a right and therefore of imposing an obligation upon the parties to enter into negotiations. As to Governments, they are not only under an obligation not to hinder negotiations but also have a positive obligation to promote them.

The Court has in its case-law adopted an extremely cautious attitude with regard to the right of collective bargaining. It has expressed the view that Article 11 does not include a right for a union to be recognised for collective bargaining ( National Union of Belgian Police v. Belgium , judgment of 27 October 1975, Series A no. 19) nor does Article 11 encompass any specific obligation on the part of the employer to enter into collective agreements with the unions ( Swedish Engine Drivers ’ Union v. Sweden , judgment of 6 February 1976, Series A no. 20) and furthermore that Article 11 leaves each State a free choice of the means to be used to protect the interests of trade union members, pointing out that while a collective agreement is one of th o se means there are others ( Schettini and Others v. Italy (dec.), no. 29529/95 of 9 November 2000). In recent case-law the importance of collective agreements has been upgraded, although the main thread is unchanged. In Swedish Transport Workers Union v. Sweden (dec.), no. 53507/99, ECHR 2004 ‑ XII (extracts), the Court holds that “collective bargaining and collective agreements are certainly among the most important of the means enabling trade unions to strive for the protection of their members ’ interests”.

The judgment in Wilson & the National Union of Journalists and Others v. the United Kingdom ( nos. 30668/96, 30671/96 and 30678/96, ECHR 2002 ‑ V ) is of particular interest. The Court, in paragraph 46 of its judgment , observed as follows:

“ ... it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory.”

The right to form and join a trade union is inextricably linked with the right of collective bargaining and the right to strike. The main purpose of the right to form and join a trade union is, as stated in Article 11, to protect the interests of the workers. However, such protection cannot be realised fully and effectively without the right of collective bargaining and the right to strike. The “o ther means” referred to in a number of the Court ’ s judgments, such as demonstrations, can only be an auxiliary means and cannot achieve the same result. The organic link between the right to form and join a trade union and the right to collective bargaining is even stronger in cases where the State is the employer. In such cases where no private interest is involved, it is incumbent upon the State to take into account also the interest of trade union members.

In the reasoning of the present judgment we would like to have see n wording reflect ing the close link between the right to form and join a trade union and the right to collective bargaining, in line with the practice in the field of international labour law.

In the present case, the Government interfered with and annulled a collective agreement concluded between Tüm Bel Sen and the municipality of Gaziantep that had been in force for two years. Such interference constitutes a violation of Article 11.

In paragraphs 43 and 44 of the judgment the Court examines whether the interference is justified and necessary in a democratic society. However, in paragraph 46 of the judgment, it concludes that there has been a violation of Article 11 owing to the fact that the respondent State has not fulfilled its positive obligation.

We are of the opinion that the basis for finding a violation of Article 11 should have been that the interference of the State was not justified, since it was not necessary in a democratic society.

2. Do public officials enjoy trade union rights including the right to enter into collective bargaining? The last sentence of paragraph 2 of Article 11 makes it possible for the State to impose lawful restrictions on the exercise of the rights enshrined in th at A rticle in the case of members of its armed forces, police or administration.

Therefore, the restrictions must first of all be “lawful”, i.e. , prescribed by law , and should be limited to the “exercise” of these rights. They should not interfere with the essence of such a right.

Article 11 refers to three categories of persons on whom such restrictions may be imposed. While it is generally accepted that the trade union rights of members of the armed forces and the police may be restricted, it is not clear whether these restrictions may be imposed also in relation to members of “the administration of the State” or if t his category of public official is different, enjoying the full scope of rights under Article 11.

Article 22 of the Covenant on Civil and Political Rights, which has similar wording to that of Article 11, only mentions members of the armed forces and the police without any reference to members of the administration of the State.

On the other hand, paragraph 2 of Article 8 of the Covenant on Economic, Social and Cultural Rights, which addresses the same subject, also includes members of the administration of the State in the possible restrictions.

Article 5 of the European Social Charter states that limitations can be imposed on the police as well as on members of the armed forces. There is no reference to members of the administration in th e Article.

ILO Convention No. 98, to which Turkey is a party, provides in its Article 6 that the Convention will not apply to public servants engaged in the administration of the State. However, the ILO Committee, in its General Survey underlined the need to interpret Article 6 narrowly and made a distinction between public servants who “by their functions are directly employed in the administration of the State and other persons employed by the Government, by public enterprises or by autonomous public institutions. The former may be excluded from the scope of the Convention, whereas the latter benefit from the guarantees provided in the Convention.”

In the present case it is clear that the members of the Tüm Bel Sen trade union, comprising officials in various localities, would fall into the second category and should therefore, in our opinion, be entitled to exercise all the rights provided for in Article 11.

[1] General S urvey 1994, freedom of association and collective bargaining , on Conventions No. 87 and No. 98 [ILO, 1994a], § 200.