SEPARATE OPINION OF JUDGE ZEKIA

T he factual aspect of the case

The facts relating to this case are given in the first part of the judgment of the Court.  I need not recapitulate them.  I will confine myself by referring very briefly to facts which I consider indispensable for expressing my views on the legal aspect of the case.

T he legal aspect

A. Whether Article 11 para. 1 (art. 11-1) of the Convention is violated

The respondent Government, by various royal decrees promulgated in the years 1946, 1955, 1961, 1964, 1966, 1969 and by an Act of 19 December 1974, conferred the right of consultation, in one form or another, on the organisations which were open to all staff of the provinces and municipalities and which for this reason were considered to have complied with the requirement of being a "most representative" body.

For trade unions the right of consultation by public authorities on matters vital to their interests undoubtedly is of importance: (a) the Government is bound to seek the opinion of the organisation entitled to be consulted on subjects such as recruitment to the service, promotion conditions, pay scales, pecuniary and pension rights and so on; (b) furthermore, the Government makes known to such organisations, in advance, the decisions intended to be taken on subjects affecting their interests in one way or another.  Organisations therefore are afforded the opportunity of putting forward their opinion before a decision material for their interests is finally taken by the authorities.

The Minister of the Interior, by his letter of 14 February 1967, refused to acknowledge the applicant union as one entitled to be consulted by public authorities on matters already referred to, on the ground that from the documents it had submitted - the constitution and the articles of association of the applicant union (the National Union of Belgian Police) - he found that there was no compliance with the requirements of being open to all the staff of the provinces and municipalities and thereby protecting the occupational interests of all such staff.

Does this refusal to confer the right to consultation, in the light of the facts and the relevant provisions of law, amount to an infringement of the right "to form and to join trade unions for the protection of his interests", as provided by Article 11 para. 1 (art. 11-1) of the Convention?

My short-cut approach for an answer is as follows:

The determining factors to be considered are two.

(1)

(a) Could the right, sought by the applicant union, for consultation be regarded as sine qua non for a person having the right to freedom of association and to form or join trade unions for the protection of his interests?  In other words, whether one can or cannot conceive of a right referred to above only if it is also accompanied by the right to consultation.

The answer to this is obviously a negative one.

(b) Let us take the less stringent test.  Could a right to be consulted be regarded as a constituent element of, or as inherent in and inseparable from, the right to freedom of association and to form and join a trade union ...?

My answer to this is also in the negative.  Taking into account the wide sphere of operation pertaining to trade union activities, my answer to the above could not be otherwise.

(2) Ought such a right of consultation to be accepted as of vital importance for the activities of a trade union within the frame of the normal concept of a trade union?

I will answer this also in the negative but with a certain amount of hesitation.  In this connection, one has to bear in mind the fact that organisations of the status of the applicant union have the right to make their claims to the appropriate authorities and also to be heard by them on the matters appertaining to their status and interests, although they are not entitled to any information in advance as to the measures (executive or administrative) intended to be taken by the Government or its organs.  This to some extent, but not to a full extent, alleviates the hardship incurred by the denial by the Government of the right of consultation to the applicant union.

Time may however come, although I am not sure that it has not come, when the right of consultation, like the right of collective bargaining, will be taken for granted and considered predominant within the scope of the normal activities of a trade union.  In such an eventuality the right to be consulted will have to be recognised as inherently included in Article 11 para. 1 (art. 11-1).

I share the view therefore that there was no violation of Article 11 para. 1 (art. 11-1) by the respondent Government.

I pass now to the consideration of the second outstanding question which is by no means an easy one to tackle.

B. Is there a breach of the Convention when Article 11 para. 1 is taken in conjunction with Article 14 (art. 14+11-1)?

In my view, Article 11 para. 1 (art. 11-1) deals with the recognition and with the conferment of a right to freedom of association including the right to form and join trade unions for the protection of the would-be members ’ interests, whereas Article 14 (art. 14) deals with the obligation of a State to secure the enjoyment of rights and freedoms set forth in the Convention, and the right referred to is undoubtedly one included therein.

The phrase "to secure the enjoyment of the rights and freedoms" (la jouissance des droits et libertés ) refers to the manner in which a right conferred by other Articles of the Convention is to be implemented and made use of.

A State is bound to secure without discrimination the enjoyment of such a right.

The right of a trade union to be consulted by the Government is not, at any rate expressly, among the rights enumerated in the Convention. Such right, however, might very well be recognised as an ancillary or consequential right in the enjoyment of the right embodied in Article 11 para. 1 (art. 11-1).

Article 11 (art. 11) begins with the words "Everyone has the right ..."  The wording itself does away with the necessity of making provision for non-discrimination.  When a right is conferred on everybody without qualification or limitation, it goes without saying that it is granted without discrimination on any ground.

The State undertakes under Article 14 (art. 14) not only a mere recognition of the rights in the Convention without discrimination, but goes further and assumes responsibility for the way such rights are to be utilised where the Government takes part directly or indirectly in the mode of such utilisation.

The enjoyment of a right is different, to my mind, from the acquisition and the recognition of a right.  It is therefore relevant to consider whether the regulations made by the Belgian Government on trade union consultation constitute a breach of Article 11 para. 1 taken together with Article 14 (art. 14+11-1).

The judgment of the Court deals in extenso with the relevant facts and with submissions on legal points advanced by both sides.  I need not reiterate them.  It suffices for me here to make certain observations on certain salient points relating to the issue under consideration.

One has to take into account the "pros and cons" embodied in the submissions made by both sides.

In the first place, it can hardly be disputed that the right to consultation conferred on a trade union is a very important one.  In this respect I agree to a great extent, if not to the full extent, with the Commission ’ s majority opinion expressed in its report of 27 May 1974 (paragraph 76 in fine): "the right to consultation and at a more general level, the freedom to bargain collectively, are important and even essential elements of trade union action falling within the scope of Article 11 para. 1 (art. 11-1)".

Nor can it be disputed that the applicant union is placed at a disadvantage compared with the status of the other trade unions that enjoy the right of consultation.

From the above it can easily be deduced that the applicant union has been treated discriminatorily.

We come now to the crucial point, namely as to whether this treatment amounts to a discrimination in the enjoyment of the right to form and join a trade union, within the meaning and scope of Article 14 (art. 14) of the Convention.

Here we may be immensely assisted by the criteria enunciated by this Court in the Belgian "Linguistic" case.  I quote a few extracts from the said judgment:

"The principle of equality of treatment is violated if the distinction has no objective and reasonable justification.  The existence of such justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies.  A difference of treatment ... must not only pursue a legitimate aim: Article 14 (art. 14) is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised."

(Case relating to certain aspects of the laws on the use of languages in education in Belgium, judgment of 23 July 1968, Series A no. 6, p. 34, para. 10).

There remains the application of the above criteria to the facts of this case.

The main reason advanced on behalf of the Government for the refusal to recognise the right of consultation for the applicant union is the one indicated by the Minister of the Interior in his letter of 14 February 1967 to which I have already referred.  In that letter it was stated that the articles of association of the applicant union did not keep the door open, for membership, to all the staff of the provinces and of municipalities and did not protect the interests of such staff, the underlying principle of these requirements being the "most representative" theory adopted as the criterion for acquiring the right of consultation.  In support of the soundness and the necessity for the adoption of this criterion, we have been told in effect that if the right of consultation were to be conferred on every trade union, then the ever increasing number of the trade unions, on the one hand, and the diversity of their problems touching on their interests, on the other hand, would render consultation impossible or useless and the whole thing would result in chaos or anarchy.  I must admit that this is a summary of my impressions from addresses made and documents submitted on behalf of the Government.  My impressions may not be exact.

The applicant union, on the other hand, maintains that it has a long history in the service of the country and that the union was descended from the Belgian Police Federation founded in 1922 and its members in their twofold capacity are entrusted with important duties.  In their capacity as an administrative police force they deal with matters such as traffic control, censuses, supervision of building and passports. In their second capacity they act as criminal police carrying heavy responsibilities in the investigation of crimes and offences.

The applicant union is of a non-political character.  The non-recognition to the applicant union of the right of consultation, has adversely and heavily hit the union.  From 7,226 in 1961, the membership of the union dropped to 5,748 in 1974.

Although the members of the applicant union in discharging their administrative duties come under the supervision of the municipal authorities, in their capacity as a criminal police force, they are answerable at national level to the Government.  In addition, they have their own professional secrets which they might have to disclose to other union members if they were to be affiliated to them for the purpose of qualifying themselves for the right of consultation.

It has been argued on the part of the Government that the applicant union was entitled to submit claims and make representations to be heard on matters relating to the interests of their members.  Since this is the case, one wonders what would be the additional amount of inconvenience to the Government if the right to consultation were not withheld from the applicant union.  In other words, I am inclined to the view that the administerial difficulties and the necessity of restricting and limiting the number of trade unions entitled to the right of consultation - in any case as far as the applicant union is concerned - were over-emphasised.

Having considered the case as a whole, I have come to the conclusion that in the light of the guidelines enunciated by this Court in the Belgian "Linguistic" case cited already, there was neither reasonable justification nor reasonable relationship of proportionality in withholding the right of consultation from the applicant union.  It seems to me therefore that the Belgian Government has violated Article 14 (art. 14) of the Convention in respect of a right emanating from Article 11 para. 1 (art. 11-1).