DISSENTING OPINION OF JUDGE MORENILLA

1. To my regret I am unable to share the majority’s approach and decision of non-violation of Article 11 (art. 11) of the Convention in this case. For reasons that I expressed in my dissenting opinion in the Sibson v. the United Kingdom judgment of 20 April 1993 (Series A no. 258-A, pp. 16-19), I do follow however its conclusion on the applicability of Article 11 (art. 11) of the Convention to the subject-matter of the applicant’s complaint. In spite of a certain reluctance to "open the door" to the negative freedom of association (paragraph 45, sub-paragraph 2) the Court, following the Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June 1993 (Series A no. 264, pp. 15-16, para. 35), has interpreted this Article (art. 11) in its logical sense that this negative right of association - the right not to join or to withdraw from a trade union - is only one aspect of the freedom of association with others.

2. In my opinion, however, the majority has not reached the logical consequence of this premise, namely that the facts adduced by Mr Gustafsson amounted to a violation of his right not to join a trade union and of his right to refuse to enter into collective negotiation with trade unions under the menace of collective action such as a blockade or boycott.

3. The majority, on the contrary, arrives to its conclusion of non-violation after establishing as "general principles" of compliance with Article 11 (art. 11) of the Convention (paragraph 45 of the judgment) the following: (a) the subject-matter of the applicant’s complaint did not involve a direct intervention by the State; (b) as the Court held in the above-mentioned Sibson judgment, only a form of compulsion which, in the circumstances of the case, strikes at the very substance of the freedom of association guaranteed by Article 11 (art. 11) will constitute an interference with that freedom; (c) the wording of Article 11 (art. 11) shows that the Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action; (d) according to the case-law of the Court (the Swedish Engine Drivers’ Union v. Sweden judgment of 6 February 1976, Series A no. 20), the conclusion of collective agreements may be one of the means chosen by the State for achieving that purpose; and (e) the Contracting States should enjoy a wide margin of appreciation in their choice of the means to be employed.

4. This reasoning, in my opinion, is not consistent with the very substance of Mr Gustafsson’s "negative" freedom of association guaranteed by Article 11 (art. 11). The positive obligation of Sweden under Article 1 (art. 1) of the Convention of securing the applicant’s right requires that legal and procedural means be established to protect the individual against measures taken by the trade unions considered by employers or employees to be "unreasonable or inappropriate". In the present case the responsibility of Sweden under the Convention is engaged precisely because of this failure.

5. The measures of blockade and boycott appear to have been taken by trade unions against the applicant for refusing the alternatives of either joining an employers’ association or signing a "substitute" collective agreement. The collective compulsion was therefore not in the interest of Mr Gustafsson but rather in that of a system of imposed collective labour agreements in which the will of the individual does not seem to be taken into account. In the above-cited Swedish Engine Drivers’ Union judgment (in paragraphs 39 and 40), the Court states the terms of collective agreements between employers and a trade union representing the employees (Article 11 (art. 11) of the Convention) and emphasises that the European Social Charter (Article 6 para. 2) "affirms the voluntary nature of collective bargaining and collective agreements". The right of trade unions under Article 11 (art. 11) of the Convention to strive for the protection of their members’ interests "under national law" cannot, in my view, embrace measures so inconsistent with the very substance of the right to freedom of association, and the aim to achieve "industrial peace" seems to me also incompatible with such a right under the Convention.

6. The only restrictions that can be placed on the exercise of the right to freedom of association are those set forth in paragraph 2 of Article 11 (art. 11-2) of the Convention. These restrictions are to be prescribed by law and they must fulfil the standards established in this Article (art. 11). I think that the margin of appreciation of the State in social or political issues cannot be validly invoked to justify the lacunae of the Swedish legal system concerning protection of employers or employees against collective measures of compulsion when their pertinence and proportionality is not checked by the courts or by independent and impartial tribunals.

7. Since I have found a violation of Article 11 (art. 11) of the Convention by reason of the Swedish legal system not affording protection of the individual against collective action of trade unions to the detriment of his rights or possessions, the other complaints of the applicant under Article 1 of Protocol No. 1 (P1-1) and Articles 6 and 13 (art. 6, art. 13) of the Convention are mere consequences of the violation of Article 11 (art. 11). The operative part of the judgment has prompted me, however, to give a negative answer to the points at issue.

DISSENTING OPINION OF JUDGE MIFSUD BONNICI

1. I am in general agreement with the dissenting opinions of my brother judges Martens and Morenilla and I find that there has been a violation of Article 11 (art. 11).

2. To that concurring dissent, I would only add the following short observation. I too, like Judge Martens, was particularly impressed by the facts which are mentioned in paragraphs 11 and 15 of the judgment. It was not only the applicant, an employer, who was not a union member, as he did not choose to join the Swedish Hotel and Restaurant Entrepreneurs’ Union ("HRAF"); his employees too, except one, were not members of the Hotel and Restaurant Workers’ Union ("HRF"). Employer and employees had obviously opted not to adhere to any union in conformity with the fundamental right underlying Article 11 (art. 11) of the Convention. Both considered that it was in their respective interests that they stay out, as going in would in fact have meant that their relationship would be covered by a general collective agreement, which they both considered to be less advantageous than the terms on which they had mutually agreed. The only HRF member employed by the applicant at the relevant time had in fact "publicly expressed the opinion that the industrial action was unnecessary, as the salary and working conditions in the restaurant were not open to criticism".

3. The actions of the unions created a situation of compulsion which had decisive results. The most important and relevant of these was that the contract or contracts of service between the applicant and the employees were rendered completely ineffectual as they could, in no way, be carried out. Paragraph 52 of the judgment, in considering the matter of compulsion, concludes:

"Compulsion which, as here, does not significantly affect theenjoyment of that freedom, even if it causes economic damage,cannot give rise to any positive obligation under Article 11(art. 11)."

In my view, however, the compulsion in issue did significantly affect the applicant’s enjoyment of his right to freedom of association.

[1] The case is numbered 18/1995/524/610. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of the corresponding originating applications to the Commission. 2. Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[2] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-II), but a copy of the Commission's report is obtainable from the registry