CONCURRING OPINION OF JUDGE WOJTYCZEK

(Translation)

1. I full y agree with the majority ’ s conclusion that there has been no violation of the Convention in the present case . However, I do not share all the opinions expressed in the reasoning of the judgment. My doubts concern in particular the applicability to members of the clergy of trade-union freedom as defined in Article 11 of the Convention.

2. In the present case, three important principles relating to the interpretation of the Convention need to be emphasised.

Firstly, the interpretation of a provision of this international treaty is based on the principle of its unity. Accordingly, any Article of the Convention must be interpreted in the light of all the provisions of the Convention and the Protocols thereto that have been ratified by all member States of the Council of Europe. While such an approach will not eliminate all conflicts between rights in concrete situations, it will nevertheless reduce their number .

Secondly , as the majority rightly note, the models governing religious denominations vary greatly within the High Contracting Parties. Such diversity is an important argument in favour of allowing States a wide margin of appreciation in this sphere. Furthermore, in defining the extent of this margin, regard should be had to religious diversity in Europe. Religious pluralism is reflected in particular through the varying definitions of the duties of a minister of religion in different faiths.

Thirdly, according to the Preamble to the Convention , fundamental freedoms are best maintained by an “effective political democracy”. In addition, any restrictions on the various freedoms safeguarded by the Conve n tion must be “necessary in a democratic society”. The interpretation of the Convention must therefore have due regard for the democratic ideal. Among the different characteristics of a democratic State, the principle of State subsidiarity should not be overlooked. A democratic society will flourish in a subsidiary State which observes the autonom y of the various communities of which it is made up. Such legitimate autonomy may be reflected, for example, in self-regulation by means of extra-legal rules of conduct produced or accepted by different social groups.

3. Under Article 11 § 1 of the Convention, e veryone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests . It is not in doubt that members of the clergy are entitled to freedom of peaceful assembly and freedom of association in general. The question arising is that of the personal scope of the right to form or join trade unions.

Trade-union freedom is a fundamental freedom safeguarded by the Convention. Trade unions are associations formed with a view to protecting the rights and interests of workers and employees in their dealings first and foremost with their employers and also with the public authorities. While Article 11 of the Convention does not explicitly exclude any particular occupational group , it is clear that trade-union freedom, as enshrined in that Article, applies to all those who carry on a gainful occupation involving a relationship of subordination vis-à-vis the person they are working for.

4. Article 9 § 1 of the Convention provides that everyone has the right to freedom of thought, conscience and religion. Freedom of religion has a collective dimension and, among other things, presupposes the autonomy of religious denominations. This autonom y includes in particular the freedom of each religious community to define its internal structure, the duties of members of the clergy and their status within the community. Any restriction of the autonomy of religious communities must be justified by the need to implement the values safeguarded by the Convention. The Romanian Orthodox Church, like other denominations, enjoys a substantial degree of autonomy, which is protected by the Convention.

5. Trade-union freedom, as safeguarded by Article 11 of the Convention , must be interpreted in the light of Article 9 in particular. The mission pursued by members of the clergy has a spiritual dimension, which is defined by the doctrine of each different religion. While this definition varies considerably from one religion to another, it is nevertheless necessary to take it into account in analysing the legal bond between members of the clergy and their religious community. As the majority note, this bond results from a personal undertaking by members of the clergy. It should be added that the undertaking in question is given freely and, by its nature and depth, goes beyond any professional undertaking arising from a relationship governed by labour law. Furthermore, when asking the religious community to entrust him with the mission of a member of the clergy, the person concerned freely undertakes to abide by the internal regulations issued by the community. Thus, the ecclesiastical members of the applicant union freely undertook, among other things, not to form a trade union without the blessing of their bishop. Admittedly, as the majority note, the undertaking given by a member of the clergy is in principle supposed to be irrevocable , but everyone nevertheless retains freedom of choice and, in practice, may decide unilaterally to relinquish his duties, even if this means breaching the rules of religious law .

6. The majority have examined the special nature of the legal bond between members of the clergy and their church in the light of the various criteria for establishing the existence of an employment relationship. In so doing, they have rightly noted that the work done by members of the clergy has a number of special features.

It should be noted that an employment relationship is both reciprocal and economic in nature: the remuneration paid by the employer serves as consideration for the economic resources generated by the employee .

An analysis of the work done by members of the clergy must take into account the spiritual dimension of their mission. The value of their work does not lend itself to economic assessment . Moreover, whereas the main purpose of engaging in gainful employment is to secure income, the mission of a member of the clergy is of a different nature. It should be noted in this connection that while the State funds the salaries of members of the clergy in Romania and a number of other countries, the same duties are carried out in other European countries without any remuneration, whether from the State or the religious community. In many monastic communities, members take a vow of poverty . The legal relationship between a member of the clergy and the religious community is not of a reciprocal nature.

In this context it is difficult to treat the very specific mission of a member of the clergy as an occupation carried on for the benefit and on behalf of another individual or entity. The fact that religious communities in some States, for various reasons, apply certain provisions of labour law to their relations with members of the clergy does not erase this fundamental distinction .

It s hould also be noted that social security systems may extend to different groups of people who are not engaged in gainful employment. The fact that a person is covered by a social security system does not form a basis for concluding that the person has entered into a legal relationship governed by labour law .

7. In view of the specific nature of the mission undertaken by members of the clergy, it is difficult to conclude that the part of Article 11 of the Convention relating to trade-union freedom is applicable in the present case. The application of the provisions of labour law to the relationship between a religious community and its clergy in certain States does not result from an obligation under the Convention.