JOINT PARTLY DISSENTING OPINION OF JUDGE S ROZAKIS, BRATZA AND VAJIĆ

1. Underlying the complaint of both applicants is the contention that trade union membership or “closed-shop” agreements, which have either never existed or which have ceased to exist in the vast majority of Contracting States, can no longer be justified in a democratic society and that their existence is incompatible with the right of freedom of association guaranteed by Article 11 of the Convention. However, as was emphasised by the Court in the case of Young, James and Webster v. the United Kingdom (13 August 1981 , § 53 , Seri es A no. 44), it is not the role of the Court to review a closed-shop system as such in relation to the Convention or to express an opinion on every consequence or form of compulsion which it may engender. Rather, it is necessary to examine the effect of the system and the impact of a trade union membership agreement on a particular applicant and in the particular circumstances of the case. While, in the ci rcumstances of the present case , we agree with the majority of the Court that the rights o f Mr Rasmussen under Article 11 were violated, we cannot share the majority ' s view that the Article was also violated in the case of Mr Sørensen.

2. The general principles derived from the Court ' s case-law governing the application of Article 11 in the context of trade union membership agreements are fully set out in the judgment. In common with the majority of the Court, we consider :

(i) that the matters of which complaint is made in the present case involve not a direct interference by the State with the applicants ' freedom of association but rather the fulfilment by the State of its positive obligation to protect through its domestic legal system the effective enjoyment of their Article 11 rights, including the question whether a fair balance was struck by that system between the competing interests of the individual applicant s and of the community as a whole;

(ii) that the question whether the right not to be compelled to join a trade union should be afforded the same level of protection under Article 11 as the right to join a trade union is not a question which can be decided in the abstract but is a matter to be addressed in the circumstances of a given case;

(iii) that, contrary to t he submission of the Government, the protection afforded by Article 11 does not extend only to those situations where the requirement to join a trade union is imposed after the recruitme nt of the individual (as in Young, James and Webster ) or following the issue of a licence (as in Sigur ð ur A. Sigurjónsson v. Iceland , 30 June 1993, Series A no. 264). While the previous cases decided by the Court have all concerned what are referred to in the judgment as “post-entry” rather than “pre-entry” closed-shop agreements, there are no reasons of principle why the protection of Article 11 should be confined to the former to the exclusion of the latter. However, as noted by the majority, the fact that membership of a particular trade union was expressly made a pre condition of securing a job is a relevant factor in the Court ' s assessment of the surrounding circumstances and the issue of their Convention compatibility.

3. In arriving at its conclusion in Young, James and Webster that there had been a violation of Article 11, the Court held that, although compulsion to join a particular trade union might not always be contrary to the Convention, a form of compulsion which, in the circumstances of the case, struck at the very substance of the right to freedom of association guaranteed by Article 11 would constitute an interference with that freedom. In finding that in the case of the three applicants this level of severity had been achieved, the Court laid emphasis on the fact that the threat of dismissal not only involved a loss of livelihood but was directed against persons engaged before the introduction of any obligation to join a particular trade union. In addition, the Court noted that none of the applicants enjoyed an effective freedom of choice as to which, if any, trade union they wished to join and that two of the applicants had conscientious objections to the policies, activities or political affiliations of the union in question.

4. In contrast to the applicants in Young, James and Webster , both of the present applicants were aware before taking up their respective jobs that an obligation existed to join SID and that this was a condition for obtaining and retaining their employment. In the view of the majority of the Court, the fact that the two applicants accepted membership of SID as one of the terms of their employment did not significantly alter the element of compulsion inherent in having to join a trade union against their will, since , had they refused they would not have been recruited. It is on this point that we differ from the majority, in that we see a very clear distinction in the degree of compulsion to which the two applicants were subjected.

5. Mr Rasmussen, who had worked as a gardener for many years, commenced his current employment at a nursery in May 1999 after a period of unemployment. It is not in dispute that the gardening and horticulture sector in Denmark is one of the sectors in which closed-shop agreements not only exist but are common. The precise extent to which the sector is covered by such agreements is disputed between the parties. According to the Government estimates, between 39 and 53 % of persons working within the sector were covered by such agreements. In the submission of the applicant, such percentages were misleading in failing to distinguish between different kinds of gardeners, namely landscape, greenhouse and production gardeners: according to his estimates, some 80 % of persons employed in the latter two categories, to which he belonged, were covered by closed-shop agreements. It is true, as pointed out in the dissenting opinion of Judge Lorenzen, that the applicant has not provided information as to his personal difficulties, if any, in obtaining a job in his own field of work which was not subject to a closed-shop agreement or as to the number of such available jobs within a reasonable distance of his home. However, like the majority of the Court, we do not regard the absence of this information as decisive. As pointed out in the judgment, wha t is certain is that, should Mr Rasmussen resign from SID in accordance with his personal convictions, he would be dismissed without the possibility of reinstatement or compensation and with no strong prospect, let alone certainty, of finding alternative employment as a greenhouse or production gardener without being obliged to rejoin the union. This threat of dismissal and the potential loss of livelihood which would result amounted in our view to a serious form of compulsion which struck at the very substance of the right guaranteed by Article 11. Moreover, for the reasons given in the judgment, we consider that the legal system failed to preserve a fair balance between the competing intere sts and to secure adequately Mr Rasmussen ' s negative right to freedom of association.

6. Mr Sørensen ' s case seems to us to be significantly different and here our view correspond s closely to those expressed in Judge Lorenzen ' s dissenting opinion. As noted in that opinion, Mr Sørensen did not apply for a permanent job but wished o nly to be employed as a holiday relief worker in the summer period until he commenced his university studies. He was not in the long term dependent on keeping his job with FDB, which in any event would only have lasted ten weeks. It is undisputed that he would have had no difficulties in finding a similar job without the requirement of trade union membership either before accepting the job with FDB or after his dismissal by the company. While it is true, as noted in the judgment, that Mr Sørensen ' s dismissal was not related to his ability to perform the specific job or his capacity to adapt to the requirements of the work place, we are unable to find that the compulsion to join SID was in the particular circumstances of his case such as to be capable of striking at the very substance of the freedom of choice inherent in the negative freedom of association. Accordingly, there was in our view no failure on the part of the respondent State to secure the applicant ' s rights under Article 11 of the Convention.