CONCURRING OPINION OF JUDGES GANSHOF VAN DER MEERSCH, BINDSCHEDLER-ROBERT, LIESCH, GÖLCÜKLÜ, MATSCHER, PINHEIRO FARINHA AND PETTITI

(Translation)

We voted in favour of the operative provisions of the judgment, but the reasons which it contains do not appear to us to reflect properly the scope of freedom of association as guaranteed by Article 11 (art. 11) of the Convention.

By confining itself strictly to w hat it calls the "substance" of the right, the Court ’ s judgment leaves outside the protection of the Convention numerous situations entailed by legislation permitting the closed shop.

In fact, as we understand Article 11 (art. 11), the negative aspect of freedom of association is necessarily complementary to, a correlative of and inseparable from its positive aspect. Protection of freedom of association would be incomplete if it extended to no more than the positive aspect. It is one and the same right that is involved.

The " travaux préparatoires " o f the Convention - which anyway are not conclusive - speak only of "undesirability" and so do not enable one to conclude that the negative aspect of trade union freedom was intended to be excluded from the ambit of Article 11 (art. 11).

In its judgment, the Court righ tly states that, in the present case, Article 11 (art. 11) has implications in the area covered by Articles 9 and 10 (art. 9, art. 10) of the Convention. We should like to point out that it is not necessary, for there to be a violation of Article 11 (art. 11), that the refusal to join an association was justified by considerations, connected with freedom of thought, of conscience or of religion, or with freedom of expression. In our view, the mere fact of being obliged to give the reasons for one ’ s refusal constitutes a violation of freedom of association.

Trade union freedom, a form of f reedom of association, involves freedom of choice: it implies that a person has a choice as to whether he will belong to an association or not and that, in the former case, he is able to choose the association. However, the possibility of choice, an indispensable component of freedom of association, is in reality non-existent where there is a trade union monopoly of the kind encountered in the present case.

Here, the sanction - be it the giving of notice or dismissal -, which was a consequence of the sy stem instituted by the law, did not give rise to but simply aggravated the violation. The violation, already constituted by compulsion in the shape of obligatory membership, is irreconcilable with the freedom of choice that is inherent in freedom of association.

CONCURRING OPINION OF JUDGE EVRIGENIS

(Translation)

Whilst I agree with the majority as regards the operative provision of the judgment finding a violation of Article 11 (art. 11) in the present case, I would like to make the following observations with respect to the reasons:

(a) In paragraph 52 of the judgme nt it is stated "that the right to form and to join trade unions is a special aspect of freedom of association". On its own, this phrase might give the impression that, for the purposes of the Convention, trade union freedom amounts, as it were, to no more than a general and individualistic concept of freedom of association. Yet both the wording of Article 11 § 1 (art. 11-1) and the Court ’ s case-law demonstrate that the content of trade union freedom is to a large extent determined by its character as a collective right. When attempting to strike a fair balance, account has to be taken of the welfare of the public and of the collective interest of the trade union organisation that are at stake as well as of the individual ’ s freedom of association (National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, pp. 17-18, §§ 38-39; Swedish Engine Drivers ’ Union judgment of 6 February 1976, Series A no. 20, pp. 14-16, §§ 39-40; Schmidt and Dahlström judgment of 6 February 1976, Series A no. 21, pp. 15-16, §§ 34 and 36).

(b) I consider that at least in the circumstances of this case and there being no submission to that effect on the part of the Government, the Court should not examine of its own motion whether the interference with the exercise of the right guaranteed by paragraph 1 of Article 11 (art. 11-1) was justified under paragraph 2 (art. 11-2).

The nature of the exception contemplated by paragraph 2 (art. 11-2) presupposes that the State concerned has taken some action in order to bring the exception into operation both within the framework of the domestic legal system and in the context of the review machinery established by the Convention. Although the measures which the State is entitled to take by virtue of paragraph 2 (art. 11-2) may be reviewed by the Court as regards their compatibility with the Convention, they are to a large extent motivated by political considerations of which it is for the State to take advantage. This feature is brought out by the discretionary power left by the Convention in this area to the national authorities. The Court cannot declare legitimate, for the purposes of paragraph 2 (art. 11-2), a domestic measure which the State itself has no wish to regard as such. Conversely, the Court cannot review a measure of this kind and conclude that it is incompatible with the Convention when the State concerned refrains from making such a submission and from advancing reasons which, from its point of view, might justify the contentious measure under the Convention.

DISSENTING OPINI ON OF JUDGE SØRENSEN, JOINED BY JUDGES THÓR VILHJÁLMSSON AND LAGERGREN

To my regret I am unable to agree that Article 11 (art. 11) of the Convention has been violated in the present case, and I wish to state the reasons of dissent as follows.

1. The issue under Article 11 (art . 11) is whether or not freedom of association as protected by that Article (art. 11) implies a right for the individual not to be constrained to join or belong to any particular association, or in other words whether or not the so-called negative freedom of association or - in the terminology adopted by the Court - the negative aspect of the freedom of association is covered by Article 11 (art. 11).

2. The answer to this question mus t take account of the statement made by the Conference of Senior Officials in its report of 19 June 1950 (see paragraph 51 of the judgment). It clearly emerges from this element of the drafting history that the States Parties to the Convention could not agree to assume any international obligation in the matter, but found that it should be subject to national regulation only.

3. The attitude thus adopted was entirely consistent with the attitude previously adopted within the framework of the International Labour Organisation. In dealing with questions of trade union rights and freedom to organise, the competent bodies of that organisation had traditionally held that union security arrangements were matters for regulation in accordance with national law and practice and could not be considered as either authorised or prohibited by the texts adopted in the ILO (see C. Wilfred Jenks, The International Protection of Trade Union Freedom, London 1957, pp. 29-30; Nicolas Valticos, Droit international du travail, Paris 1970, pp. 268-69; Geraldo von Potobsky, The Freedom of the Worker to Organise according to the Principles and Standards of the International Labour Organisation, in Die Koalitionsfreiheit des Arbeitnehmers, Heidelberg 1980, vol. II, at pp. 1132-36). This understanding has been maintained ever since and also been expressed by the States Parties to the European Social Charter of 1961 with respect to the obligations undertaken in virtue of that instrument (See Appendix, Part II, Article 1, paragraph 2).

4. During the proceedings in the present case it was argued on behalf of the respondent Government by the Solicitor-General that "the scale of the closed shop system within Britain and the state of the common law was such that the inclusion within Article 11 (art. 11) of the right not to be compelled to join a union would inevitably have required the United Kingdom to make a reservation in respect of any such right" (verbatim record of the hearing on the morning of 4 March 1981, doc. Cour (81) 19, p. 75).

5. Reference to the "substanc e" of freedom of association is not relevant in the present context. Although the Court has often relied on the notion of the substance of the rights guaranteed by the Convention, it has done so only when the question was what regulation or limitation of a right was justified. It has held that even in cases where regulation or limitations were allowed explicitly or by necessary implication, they could not go so far as to affect the very substance of the right concerned. In the present case, however, the problem is whether the negative aspect of the freedom of association is part of the substance of the right guaranteed by Article 11 (art. 11). For the reasons stated above the States Parties to the Conven tion must be considered to have agreed not to include the negative aspect, and no canon of interpretation can be adduced in support of extending the scope of the Article (art. 11) to a matter which deliberately has been left out and reserved for regulation according to national law and traditions of each State Party to the Convention.

6. This conclusion is perfectly compatible with the nature and function of the rights in question. The so-called positive and negative freedom of association are not simply two sides of the same coin or, as the Court puts it, two aspects of the same freedom. There is no logical link between the two.

The positive freedom of associa tion safeguards the possibility of individuals, if they so wish, to associate with each other for the purpose of protecting common interests and pursuing common goals, whether of an economic, professional, political, cultural, recreational or other character, and the protection consists in preventing public authorities from intervening to frustrate such common action. It concerns the individual as an active participant in social activities, and it is in a sense a collective right in so far as it can only be exercised jointly by a plurality of individuals. The negative freedom of association, by contrast, aims at protecting the individual against being grouped together with other individuals with whom he does not agree or for purposes which he does not approve. It tends to protect him from being identified with convictions, endeavours or attitudes which he does not share and thus to defend the intimate sphere of the personality. In addition, it may serve the purpose of protecting the individual against misuse of power by an association and against being manipulated by its leaders. However strongly such protection of the individual may sometimes be needed, it is neither in logic nor by necessary implication part of the positive freedom of association.

7. It follows that union security arrangem ents and the practice of the "closed shop" are neither prohibited, nor authorised by Article 11 (art. 11) of the Convention. Objectionable as the treatment suffered by the applicants may be on grounds of reason and equity, the adequate solution lies, not in any extensive interpretation of that Article (art. 11) but in safeguards against dismissal because of refusal to join a union, that is in safeguarding the right to security of employment in such circumstances. But this right is not among those recognised by the Convention which - as stated in the Preamble - is only a first step for the collective enforcement of human rights. At present, it is therefore a matter for regulation by the national law of each State.