SEPARATE OPINION OF JUDGE ZAGREBELSKY

(Translation)

I would like to add to the reasoning in the judgment as regards the right of trade unions to bargain collectively by expounding a few considerations of my own on the subject of the Court ’ s departures from precedent.

1. On 6 February 1976 in the case of Swedish Engine Drivers ’ Union v. Sweden ( Series A no. 20 ) the Court found in its judgment as follows ( § 39):

“... Article [11] does not secure any particular treatment of trade unions, or their members, by the State, such as the right that the State should conclude any given collective agreement with them. Not only is this latter right not mentioned in Article 11 § 1, but neither can it be said that all the Contracting States incorporate it in their national law or practice, or that it is indispensable for the effective enjoyment of trade union freedom.”

The Court went on to conclude (§ 40):

“... the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. Article 11 § 1 certainly leaves each State a free choice of the means to be used towards this end. While the concluding of collective agreements is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members ’ interests.”

(see , also, a judgment of the same date, Schmidt and Dahlström v. Sweden , § § 34-35 , Series A no. 21 , and National Union of Belgian Police v. Belgium , 27 October 1975, § 39 , Series A no. 19 ).

This case-law was referred to more recently, without being called into question, in 1996 and 2002, in the Gustafsson v. Sweden judgment (25 April 1996, § 45 , Reports of Judgments and Decisions 1996 ‑ II ) and in the Wilson, National Union of Journalists and Others v. the United Kingdom judgment of 2 July 2002 ( nos. 306 68/96, 30671/96 and 30678/96, § 44 , ECHR 2002 ‑ V ).

In the present judgment, by contrast, the Court has found that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘ right to form and to join trade unions for the protection of [one ’ s] interests ’ set forth in A rticle 11 of the Convention ” ( see paragraph 154 of the judgment).

2. The Court has thus expressly departed from its case-law, taking into account “ the perceptible evolution in such matters, in both international law and domestic legal systems” ( see paragraph 153 of the judgment). In reality, the new and recent fact that may be regarded as indicating an evolution internationally appears to be only the proclamation (in 2000) of the European Union ’ s Charter of Fundamental Rights . The evolution of legislation in the various States ( see paragraphs 52 and 151 of the judgment) is a more difficult basis on which to assess the time or period from which a significant change became perceptible.

I have the feeling that the Court ’ s departure from precedent represents a correction of its previous case-law rather than an adaptation of case-law to a real change, at European or domestic level, in the legislative framework (as was the case, for example, in its Stafford v. the United Kingdom judgment of 28 May 2002 ( [GC], no. 46295/99, ECHR 2002 ‑ IV )) or in the relevant social and cultural ethos (as, for example, in the Christine Goodwin v. the United Kingdom judgment of 11 July 2002 ( [GC], no. 28957/95, ECHR 2002 ‑ VI )). This departure is probably closer to the situation dealt with by the Court in the case of Pessino v. France ( no. 40403/02, 10 October 2006 ) than to the domestic case-law in the S.W. v. the United Kingdom judgment of 22 November 1995 ( Series A no. 335 ‑ B ). In any event, the evolution of public opinion which rendered foreseeable the solution adopted by the domestic courts in the S.W. v. the United Kingdom case was already evident by the time of the offence of which the applicant stood accused.

3. The Court, recognising that “it is in the interests of legal certainty, foreseeability and equality before the law that [it] should not depart, without good reason, from [its] precedents”, and being responsible for interpretation of the Convention (Article 32 of the Convention ), has nevertheless proceeded with this departure, considering that “a failure by [it] to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement” ( see paragraph 153 of the judgment).

This is all perfectly consistent with the practice of the Court, which, whil e in principle following its own previous rulings, does from time to time, very cautiously, develop its case-law by a reversal of precedent (see Christine Goodwin , cited above, §§ 74 and 93; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56 , ECHR 2007 ‑ II ; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § § 109, 121 and 125 , ECHR 2005 ‑ I ).

4. All courts have to interpret the law in order to clarify it and, if need be, to keep pace with the chang es in the society which they are serving (see, among many other authorities, Kokkinakis v. Greece , 25 May 1993, § 40 , Series A no. 260 ‑ A , and Cantoni v. France , 15 November 1996, § 31 , Reports 1996 ‑ V ). For the purposes of the Convention , the term “law” covers both enactments and the interpretation thereof by the courts ( see Kruslin v. France , 24 April 1990, § 29 , Series A no. 176 ‑ A ), such that divergences in case-law create uncertainty and a lack of foreseeability that are capable of raising doubt as to the legality of an interference with a Convention right (see Driha v. Romania , no. 29556/02, § 32 , 21 February 2008 , and Păduraru v. Romania , no. 63252/00, § 98, ECHR 2005 ‑ XII ). Any judicial interpretation of the law is by nature retrospective, in the sense that it applies to a prior situation or conduct.

However, in my opinion, the act of departing from precedent raises a particular problem, because the interaction between the new interpretation and the law, as previously contemplated, will give rise to a new “law” whose content is different to that of the previous “law”. The retrospectiveness of the new “law” is problematic with regard to the requirements of foreseeability and legal certainty. I would compare this to the problems raised by the retrospective effect of an Act interpreting a previous Act, justifying a certain resistance on the part of the Court. The requirements in terms of the quality of the law, and particularly that of the foreseeability of its application, entail a need for a similar approach to the nature of judicial interpretation to that obtaining in the situation of laws succeeding each other in time, for which transitional provisions are often made.

5. As regards the case-law of domestic courts, the Court has already shown that it is aware of the problem in cases where it has taken note of rulings affording new domestic remedies to applicants (see Di S ante v. Italy (dec.), no. 56079/00, 24 June 2004 ; Cocchiarella v. Italy [GC ], no. 64886/01, § 44 , ECHR 2006 ‑ V ; Giummarra and Others v. France (dec.), no. 61166/00, 12 June 2001; Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002 ‑ VIII ; Broca and Texier-Micault v. France , nos. 27928/02 and 31694/02, § 20 , 21 October 2003 ; and Paulino Tomas v. Portugal (dec.), no. 58698/00, ECHR 2003 ‑ VIII ), whil e dealing with such situations as if they entailed the creation of a new law due to take effect (“enter into force”) after a certain period of time, in the manner of a vacatio legis .

The same awareness is reflected in certain judgments of the Court of Justice of the European Union and of certain domestic courts, which, adopting the principle of prospective overrulings, or addressing the consequences of a mistake of law caused by existing case-law, do not apply (retrospectively and automatically) the new case-law to the case pending before it or to similar situations (see Les R evirements de J urisprudence – Report presented to President Guy Canivet by the Working Party chaired by Nicolas Molfessis – Paris, Litec, 2004). In this connection, a particularly clear and pointed argument, in respect of Article 6 of the Convention, was used by the French Court of Cassation in a plenary judgment of 21 December 2006 ( Dalloz , 2007, pp. 835 et s eq. , with a note by P. Morvan, Le S acre du R evirement P rospectif sur l ’ A utel de l ’ É quitable ) . T h e opinion of Lord Nicholls of Birkenhead in the National Westminster Bank plc v. Spectrum Plus Limited and others and others judgment of the House of Lords of 30 June 2005 ([2005] UKHL 41) is also worthy of note .

6. In its Marckx v. Belgium judgment of 13 June 1979 ( § 58 , Series A no. 31 ), the Court, responding to the Government ’ s request for determination of the effects of its ruling on previous situations, and taking into account the slow evolution towards the equality of treatment at issue in that case, dispensed the Belgian State from reopening legal acts or situations that antedated the delivery of its judgment.

The Court, out of a concern for legal certainty, thus showed that it was aware of the need to refrain from calling into question situations concerning individuals whose proceedings relating to distributions of estates had already been concluded. However, that was an exceptional case, which could probably also be explained by the significance of the consequences that could otherwise have affected a large number of individuals.

The Court nevertheless applied its new case-law, finding that Belgium had breached the Convention in respect of the applicants. In the same vein, the Court held in its Aoulmi v. France judgment of 17 January 2006 ( no. 50278/99, ECHR 2006 ‑ I ) that there had been a violation of Article 34 of the Convention , dismissing the respondent Government ’ s argument to the effect that the applicant ’ s expulsion had taken place prior to the adoption by the Court, in its Mamatkulov and Askarov judgment of 4 February 2005 (cited above) , of its new case-law as to the binding nature of measures indicated under Rule 39 of the Rules of Court. The Court thus considered that Contracting States had already been required to fulfil their obligations arising from Article 34 of the Convention at the time of the expulsion in question (see Aoulmi , cited above, § 111). Rightly so, but in the meantime the “content” of the obligation had changed as a result of the Court ’ s new interpretation of Rule 39.

7. When it departs from precedent, the Court certainly changes the content of the Convention in relation to its own previous interpretation, given with the authority conferred on it by Article 32 of the Convention . If the new case-law extends the scope of a Convention provision and thus imposes a new obligation on States, a retrospective effect that is automatic and not subject to directions by the Court would, in my view, be difficult to reconcile with the requirements of foreseeability and legal certainty , which are essential pillars of the Convention system. Moreover, the application in each State, by domestic courts, of the Convention as interpreted by the Court, will then become difficult, if not impossible. I therefore find it necessary that provision be made for the period that precedes the departure from precedent.

8. In the light of the foregoing, I would have preferred it if the Court had stipulated the time from which the right in question “became” ( see paragraph 154 of the judgment) one of the essential elements of the right set forth in Article 11. In my own opinion, it would seem legitimate to doubt that this could already have come about by 1995, when the Turkish Court of Cassation disposed of the case at domestic level. Moreover, I find it regrettable that the Court has once again allowed the “natural” retrospectiveness of judicial interpretation to impugn an approach that, at the material time, was (probably) not in breach of the Convention .

I did, however, vote in favour of finding a violation on account of the annulment of the collective agreement at issue (operative paragraph 3), as I share the Court ’ s interpretation of Article 11. I must also take account of the Court ’ s practice concerning the retrospective effect of its departures from precedent, although I personally believe that this practice should itself be the subject of such a departure.