DISSENTING OPINION OF JUDGE ZUPANČIČ

I should like to add the following to the dissenting opinion of Judge Lorenzen, with which I am in agreement.

In general, the right to disassociate, the negative right to the freedom of association – or whatever one chooses to call this freedom not to belong – derives from a symmetrical and undemanding logic, mirroring the freedom to belong to an association. However, there are many situations in which there is no freedom not to belong, for instance if one wishes to practise a profession (as a lawyer, a doctor, a psychotherapist, etc.) or to own a residence , and many other situations where there is a necessitas contrahendi but not necessarily a sincere animus contrahendi .

Thus, if we loo k beyond the superficial mirror symmetry we see that the analogy does not carry very far.

For reasons expounded exhaustively by Judge Lorenzen, the specific and historically established situation under consideration in Denmark has implications beyond the wider margin of appreciation afforded to the Contracting State in question. Trade u nions defend the economic interests of the individual worker, whose initial bargaining position and consequent contractual situation vis-à-vis his employer are a result of the association ' s collective impact. While an individual(ist) worker may not want to belong, the individual conditions of employment he currently enjoys have been achieved through decades of collective bargaining. Can he reap the economic and other advantages, take the job and then say he does not want to belong to the very trade union whose past efforts have made all of this possible for him?

This logical inconsistency must then be balanced against the legitimate interest of an individual worker in being free not to subscribe to the ideological and other non-economic implications of his membership in the trade union. Leaving aside the fact that in the majority ' s decision this balancing has remained implicit, I believe that the latter consideration has been lent too much weight (not sufficiently nuanced).

It may turn out that a substantial collective economic interest of the workers has been sacrificed to an insubstantial, individual preference. In view of that possibility, I would prefer the impact of the judgment to remain inter partes .

DISSENTING OPINION OF JUDGE LORENZEN

1. The majority ha ve found that there has been a violation of Article 11 of the Convention in both cases. I am unable to share the majority ' s conclusions for the following reasons.

2. The scope of Article 11 in respect of the protection of the so-called “negative right” of freedom of association has not been clarified in the Court ' s case-law so far. It transpires from the travaux pr éparatoires , as mentioned in paragraph 33 of the judgment, that the m ember States were not prepared to accept the inclusion in the Convention of a provision modelled on Article 20 § 2 of the United Nations Universal Declaration which would have expressly granted the right not to b elong to an association, the reason for their opposition being the existence of “closed-shop systems” in certain countries. In Young, James and Webster v. the United Kingdom (13 August 1981 , § 52 , Series A no. 44 ) , the Court held that, even assuming that a general rule such as the one contained in Article 20 § 2 of the Universal Declaration could not be regarded as itself enshrined in the Convention, it did not follow that the negative aspect of a person ' s freedom of association fell completely outside the ambit of Article 11 of the Convention and that each and every compulsion to join a particular trade union was compatible with the intention of that provision. That a negative right of association is protected by Article 11, at least to some extent, has been confirmed in the Court ' s subsequent case-law, but as the majority rightly stressed, the Court has hitherto not taken any definite stand on whether the negative and positive aspects of the right to freedom of association should be afforded the same level of protection (see, in particular, Sigur ð ur A. Sigurjόnsson v . Iceland , 30 June 1993 , §35 , Series A no . 264 ) . I agree with the majority that it is difficult to decide this issue in the abstract since it can only be properly addressed in the circumstances of a given case.

3. The present case concern s the use of closed-shop agreements between the trade union SID (now 3F) and, respectively, FDB (which is the Danish consumer cooperative COOP) and a private nursery. Both applicants were aware that membership of SID was a condition of employment before they accepted the jobs with their respective employers. The majority correctly stated that the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities and that there was no direct intervention by the respondent State in any of the matters co mplained of in the present case ( see paragraph 57 of the judgment). Accordingly, a violation of that Article can only be found if it is established that the State failed to fulfil a positive obligation to secure the effective enjoyment of a right of the applicants to enter into a contract of employment with a private employer without their being confronted with a condition to join a specific trade union.

In its case-law to date , the Court has only ruled on the scope of Article 11 in different circumstances. Thus Young, James and Webster (cited above) concerned the enforcement of a closed-shop agreement which did not exist at the time the applicants were first recruited. In Sibson v. the United Kingdom (20 April 1993 , Series A no. 258) , a closed-shop agreement never came into effect although the applicant was forced to leave his job because of a demand to join a union which was not prescribed at the time of his recruitment. Sigur ð ur A. Sigurjónsson is also to be distinguished, as in that case the obligation for the applicant to be a member of Frami was prescribed by law. In that case there was direct interference by the State with the freedom of association. Furthermore, the obligation was only lawfully imposed after the applicant had obtained his taxicab licence.

The Government argued with reference to the above case-law that Article 11 only affords protection against closed-shop agreements if the requirement to join a trade union was imposed after the recruitment of the individual, either because the requirement did not exist at the time of recruitment or because the individual was not informed about it until later. I agree with the majority that such a limitation of the scope of protection of the freedom not to be compelled to join a trade union cannot be deduced from the Court ' s case-law. It appears from the previous judgments that the Court ' s examination was limited to the circumstances of the individual cases and it cannot therefore justifiably be concluded that the Court intended to exclude protection of the negative right of association in other cases such as, for example, the present one . Furthermore, I agree with the majority that there are no reasons to make a distinction of principle in terms of the scope of protection guaranteed by Article 11 between pre- entry and post-entry closed-shop agreements. What matters is whether the criteria which, in the Court ' s case-law, have been decisive for finding a violation of the negative right of freedom of association apply equally to the ci rcumstances of the present case . In the judgments mentioned above it was a condition for finding a violation that the applicant had been exposed to a form of treatment which “strikes at the very substance of the freedom of association”.

4. When deciding whether a Contracting State has complied with a positive obligation under the Convention, the Court must examine whether a fair balance has been struck between the competing interests of the individual and the community as a whole, but it has always acknowledged that the Contracting States , in achieving such a balance , must be granted a certain margin of appreciation. The scope of this margin depends on the Convention issue at stake. The majority rightly stated that , in the field of labour market relations , the Court has consistently held that the Contracting States enjoy a wide margin of appreciation (see paragraph 58 of the judgment). However, the majority have modified this established case-law in so far as the margin of appreciation in the field of closed-shop agreements is now considered to be “reduced”. As justification for this change, the majority referred to the need in a democracy to achieve “a balance ... which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position” . In Young, James and Webster , an identical argument was relied on, but only as a principle to be taken into account when assessing the necessity of interference with the right to freedom of association.

I fail to see how such a principle – however relevant it may be in other contexts – constitutes a convincing argument for increasing the Court ' s involvement in the assessment of delicate social and po litical matters such as those in issue in the instant case . In any event, such a principle is not the only one to be taken into account when determining the scope of the Court ' s scrutiny in this field. Others may point in the opposite direction. In this connection the majority seem to have overlooked an element which in my opinion should be given importance. Closed-shop agreements like those in the present case are made between private contracting parties, and obliging the Contracting States to prohibit such agreements in the interests of third persons interferes with the rights of others to freedom of contract. In my view , the Court should be careful not to go too far by imposing on Contracting States its own opinion on how such conflicting interests between private individuals should be resolved. This does not mean that I rule out the possibility that interference may, in certain circumstances, be necessary in order to protect an individual ' s negative right of association, for instance against abuse of a dominant position, but it should only be done where the interests of that person would otherwise be seriously harmed.

5. The majority found that both applicants were compelled to join a trade union against their will as they would otherwise not have been recruited, and that they were individually and substantially affected by the closed-shop agreements because they faced dismissal if they refused to comply with the requirement.

In my opinion , the circumstances of the present case cannot justify this conclusion. It is of course true that the requirement to join a specific trade union constituted a “compulsion” in the sense that the applicants would not have been recruited or would later have been dismissed had they refused to comply with it.

However , it is far from unusual that an individual seeking a job is “compelled” to accept requirements which are contrary to, for example, his personal views or which interfere with his private or family life (see , mutatis mutandis , Dahlab v. Switzerland (dec.) , no. 42393/98, ECHR 2001-V (requirement for a teacher not to wear a headscarf) , and Madsen v. Denmark (dec.) no. 58341/00, 7 November 2002 (requirement to undergo random urine tests for alcohol, drugs or other intoxicating substances)). It is also quite normal that non-compliance with such requirements may lead to dismissal. This does not in itself raise an issue under the Convention – especially if the employment is in the private sector – as the Convention does not grant a right to find a job and the individual is free to seek employment elsewhere.

However, the situation may be different if an individual is compelled to accept interference with freedoms guaranteed by the Convention because he or she would otherwise be exposed to substantial hardship, for example if there are no reasonable prospects of finding a job in his or her line of work without such a requirement or where a change of job would cause considerable inconvenience. Thus in Young, James and Webster the Court found a violation of Article 11 because the requirement to join a trade union under threat of dismissal involved loss of livelihood for the applicants, some of whom had been employed for long periods before the requirement was introduced. The situation was similar in Sigur ð ur A. Sigurjónsson , where the applicant risked losing his taxicab licence if he did not comply with the obligation to join Frami. On the other hand, in Sibson the applicant was not faced with a threat of dismissal involving loss of livelihood as he could have been transferred to work at another location for the same employer.

Whether a requirement to join a trade union under threat of dismissal substantially affects an individual must be determined on the basis of the circumstances of a given case. Even if I agree with the majority that the distinction between pre-entry and post-entry agreements is not as such decisive for the scope of protection of Article 11, it is in my opinion reasonable to assume that an individual may more easily be found to be substantially affected where he or she is forced to leave a job because of closed-shop agreements which are perhaps introduced several years after the recruitment, than where an individual is dismissed shortly after recruitment for refusal to join a trade union even though he or she knew that membership was a condition of recruitment.

6. The applicant Sørensen did not apply for a permanent job but only wan ted to be employed as a holiday relief worker in the summer period until he commenced his university studies. Three weeks after his recruitment , he informed his employer that he did not want to become a member of SID and he was dismissed the following day. It is undisputed that he would have had no difficulties in finding another similar job either before accepting the job with FDB or after his dismissal. In these circumstances I fail to see that he suffered any real hardship or for that matter was put in a worse pos ition than the applicant in Sibson. To find that this applicant was “substantially affected” would in my opinion strip that requirement of any reasonable content.

The applicant Rasmussen is a gardener by profession. Following a period of unemployment he commenced working in May 1999 at a nursery. He is still employed there. The gardening and horticultural sector is one of those sectors where closed-shop agreements exist. However, it is far from clear to what extent that sector is covered by closed-shop agreements. The Government have submitted an estimate according to which between 39 and 53 % of jobs in the sector are covered by such agreements. The applicant does not dispute the figures as such but submits that a distinction should be made between three different kinds of gardener, and that he is only qualified to obtain a job in one line of gardening in which, according to his estimate, the percentage of jobs with closed-shop agreements is higher – probably 80 % . However, he has not provided any more precise information in support of this claim. Nor has he provided any information about his personal difficulties in finding a job, in particular as regards the length of time he was unemployed, how many jobs, if any, he applied for before being recruited by his present employer, whether he later tried to find a job not subject to a closed-shop agreement or how many jobs not covered by a closed-shop agreement were available within a reasonable distance of his home. In these circumstances , I am unable to accept that this applicant has substantiated that the closed-shop agreements limited his possibilities of finding a job to such an extent that he could be considered to have been substantially affected.

7. Finding that neither of the applicants was substantially affected by closed-shop agreements, it is not necessary for me to consider whether their personal views and opinions were compromised to such an extent that it struck at the very substance of the freedom of association. Nor do I find it necessary to express an opinion on whether the closed-shop agreements – had the applicants been substantially affected by them – were justified with reference to the fair balance which has to be struck between their interests and the need to ensure that trade unions are permitted to strive for the protection of their members ' interests.

[1] . According to the exchange rate o n 3 July 2003, the date on which the claim was submitted.

[2] . According to the exchange rate on 8 August 2005, the date on which the claim was submitted.