JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN, VILLIGER, LÓPEZ GUERRA, BIANKU, M ø SE AND JÄDERBLOM

1. We are not in disagreement with the Grand Chamber ’ s findings acknowledging that members of the Romanian Orthodox clergy fulfil their mission in the context of an employment relationship within the Church and that, as a consequence, ( a ) the Article 11 guarantees concerning the right to form and to join trade unions for the defen c e of employee s ’ interests are applicable to this case , and ( b ) the Romanian courts ’ refusal to register the applicant union therefore constitutes an interference in the exercise of that right ( see paragraphs 149 - 50 of the judgment ).

2. However, in its judgment the Grand Chamber did not arrive at the conclusion that should have been drawn in the circumstances of the present case from the above - mentioned premises: that the Romanian courts ’ refusal to register the applicant union constituted a violation of its right to freedom of association under Article 11 of the Convention .

3. As an essential element of social dialogue between workers and employers, freedom to join trade unions is recogni s ed in the Convention as a special aspect of freedom of association that must be protected against arbitrary interference from public authorities. According to the Court ’ s case - law, the exceptions provided for in Article 11 § 2 must be strictly construed. Only convincing and compelling reasons can justify restricting freedom of association ( see Demir and Baykara v. Turkey , no. 345 0 3/97 , §§ 96 et seq., ECHR 2008). This right certainly includes the right to form trade unions. In this connection it should be noted that Article 7 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organi s e provides that the acquisition of legal personality by workers ’ organi s ations cannot be subject to conditions that would undermine that right.

4. In this case, the Dolj County Court refused the applicant union ’ s application for registration in very general and succinct terms. In doing so it overturned a prior judgment of the Craiova Court of First Instance grant ing the union ’ s application for registration in the register of t rade u nions, which had been supported by the p ublic p rosecutor ( see paragraphs 12 and 15 of the judgment ). The County Court thus endorsed the position of the appellant , the Archdiocese of Craiova, based on the absence of permission from the bishop t o form the trade union and the freedom of religious denominations to organi s e themselves ( see paragraph 18 ).

5. In their observations before the Grand Chamber, the Government alleged that the County Court ’ s decision was based on existing law, pursued a legitimate aim (preserving the autonomy of religious communities) and was proportiona te and necessary in a democratic society. We can accept, as the majority of the Grand Chamber did , that the County Court ’ s decision was based on existing law and pursued a legitimate aim . We do not agree , however , with the assertion that its decision was a proportiona te or necessary measure for preserving the autonomy of the Romanian Orthodox Church. In the circumstances of the case, the County Court, by unreservedly adopting the Archdiocese ’ s position, did not take into account the competing interests and did not perform a balancing exercise to assess the proportionality of the adopted measure in relation to the applicant union ’ s rights. W e consider that such an exercise would have concluded that the autonomy of the Romania n Orthodox Church and its freedom from any external or internal interference would not have been jeopardi s ed by the recognition of the applicant union, with respect to either its doctrine (principles and beliefs) or its organi s ational operations.

6. Concerning the Church ’ s autonomy in establish ing its own doctrine, the applicant union ’ s constitution explicitly specified that it intended to fully observe and apply ecclesiastical rules, including Church statutes and canons. Moreover, neither the applicant union ’ s constitution nor its members ’ statements contain any criticism of the Church or of the Orthodox faith. The applicant union ’ s demands were exclusively limited to protecting its members ’ professional, economic, social and cultural rights and interests.

7. Concerning the Church ’ s autonomy with respect to its internal operations, the Government and the intervening third parties maintained that the union ’ s activities would negatively affect the institutional autonomy of the Church by creating a parallel authority within the Romanian Orthodox organi s ation. However, the union ’ s program me clearly indicates that its sole purpose would have been to defend the interests of its members, proposing a series of measures in that regard and not claiming any decision-making powers within the Church. The program me sought to represent the union within certain Church bodies . And the union ’ s proclaimed objectives were not to replace Church authorities with union ones, but rather to present and defend proposals before those authorities on behalf of union members, on no account assuming Church functions.

8. The Government also claimed that the union ’ s activities might disrupt Church operations, citing possible strikes as an example. But this is a different question from the Romanian authorities ’ registration of the union, since it addresses the union ’ s possible future conduct. Indeed, this argument, which did not form part of the national courts ’ assessment of the applicant union ’ s application for registration, is highly speculative. The drastic measure of refusing to register a trade union solely on the basis of part of its program me can only be justified in cases of serious threats or if the program me ’ s goals are incompatible with democratic principles or are manifestly unlawful (see, mutatis mutandis , United Communist Party of Turkey and O thers v. Turkey , 30 January 1998, § 58 , Reports of Judgments and Decisions 1998-I ; Refah Partisi (The Welfare Party) and Others v. Turkey [ GC ], nos. 41340/98, 41342/98, 4 1343/98 and 41344/98, § § 1 07 et seq., ECHR 2003-II; and Gorzelik and Others v. Poland [ GC ], no. 44158/98, § 103 , ECHR 2004-I ). Furthermore, even after registration, the union ’ s members would still have remained within the administrative structure of the Church and subject to its internal regulations, which impos ed special duties on them as members of the clergy. Nor would the Church or national authorities have been powerless to deal with any activities of the union contravening those special duties. Measures compatible with Article 11 § 2 of the Convention could certainly have been applied. S pecifically, to address the perceived dangers alluded to by the Romanian Government regarding the applicant union ’ s potential right to strike – although this is certainly one of the most important union rights – the Grand Chamber judgment should have taken into account two aspects of the Court ’ s case - law: ( a ) the right to strike is not an absolute right ( see Schmidt and Dahlström v. Sweden , 6 February 1976, § 36, Series A no. 21, and Dilek and O thers v. Turkey , nos. 74611/01, 26876/02 and 27628/02, § 68, 17 July 2007), and ( b ) limitations on the right to strike may under certain circumstances be per missible in a democratic society ( see UNISON v. the United Kingdom ( dec. ) no. 53574/99, ECHR 2002-I; Federation of Offshore Workers ’ Trade Unions and Others v. Norway ( d ec . ) , no. 38190/97, ECHR 2002-VI; and Enerji Yapı -Yol Sen v. Turkey , no. 689 59 /01, § 32, 21 April 2009).

9. There are additional reasons for discarding the argument that registering the applicant union would in any way have compromised the Church ’ s activities or threatened its autonomy. First and foremost is the fact that the Romanian c ourts had already recogni s ed the right of Church employees, both lay and clergy, to form trade unions, having granted legal personality to two unions for members of the Orthodox clergy, Solidaritatea and Sfântul Mare Mucenic Gheorghe ( see paragraphs 46 and 49 of the judgment). And there is no indication, either in the Government ’ s observations or in the information available to the Court, that the existence of these two unions has in any way undermined the autonomous operations of the Romanian Orthodox Church.

10. Furthermore, and from a more general point of view, the unnecessary and disproportionate nature of the refusal to register the applicant union is reinforced by the fact that although constitutional models governing relations between the different European States and religious denominations vary greatly, none of them excludes members of the clergy from the right to form trade unions. In some countries, they are even expressly afforded that right (see paragraph 61 of the judgment).

11. In view of the foregoing, the Grand Chamber should have found that the Dolj County Court ’ s decision denying the applicant union registration on account of the lack of permission from the b ishop did violate its right to freedom of association under Article 11 of the Convention .

[1] Bosnia and Herzegovina, Estonia, Georgia, Hungary, Republic of Moldova, Montenegro, Ireland, “the former Yugoslav Republic of Macedonia”, Latvia, Lithuania, Germany, Greece, Spain, Portugal, Italy, Poland, Slovenia, France and certain Swiss cantons.

[2] Finland, Bulgaria, Slovakia, Ukraine, Belgium, Austria, Russia, Turkey, Luxembourg, Sweden and certain Swiss cantons.

[3] Belgium, the Netherlands, the United Kingdom.