DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the finding of the majority in this case that there has been no interference with the applicants’ right under Article 1 of Protocol No. 1.

The key issue in the case is whether the tips paid by customers using cheques or credit cards passed into the “possessions” of the applicants in their capacity as waiters for the purposes of Article 1 of Protocol No. 1 or became the absolute property of their employer, to be used as it wished. The majority in the Court of Appeal in the United Kingdom found that such tips became the employer’s property and therefore could be used by it in order to satisfy the minimum wage to which the applicants were entitled under the law independently of the tips, in other words as part of their “remuneration”. The same approach was followed by the majority of the Court in this case.

I do not think that it can seriously be disputed that in giving the tips the customers intended that they would be specifically handed over in full to the waiters independently of and on top of their salary. I do not think that it can reasonably be assumed that when a customer gives a tip in a restaurant in any form (cash, credit card or cheque) he wants the tip to become the absolute property of the owner of the restaurant. As rightly pointed out in the British case of Wrottesley v. Regent Street Florida Restaurant ([1951] 2 Law Reports: King’s Bench Division 277), which concerned cash tips:

“The customer has no intention of giving anything to the employer ... It seems to us that there is no ground for saying that these tips ever became the property of the employer ... When the tronc money is shared out the waiters are dividing up their own money. Accordingly, we hold that the sums received from the tronc by the waiters cannot be taken into account in computing the amount paid by the respondents to them.”

I also endorse the following statement of Lord Justice Aldous in his dissenting opinion in this case:

“The tips given by the customer are not given to increase the bank account of the employer, nor are they accepted upon that basis. The tips are given and accepted to be transferred to the tronc or dealt with along the same lines. The tips are not given to discharge any liability of the employer to pay a minimum wage. They are paid to the employer who acts as the agent of the customer in their distribution.”

I am not convinced that cheque and credit card tips should be treated differently. The intention of the customer remains the same when paying a tip by credit card or cheque as when paying cash.

In these circumstances, I believe that the applicants must be taken to have had a property right with respect to the tips: a right derived from the intention of the customers and the role of the employer in ensuring that that intention was respected. I am not persuaded by the Government’s argument that it was the employer, and not the applicants, which bore the risks and delays which accompanied the processing of payments made by cheque or credit cards. As regards sums lost to the employer as a result of, for example, fraudulent credit card transactions, I would observe that there is no reason why the employer could not request its employees to forego their right to any tips included in the sums of which it was defrauded and did not receive as a consequence.

The majority followed the line of the majority of the Court of Appeal in the United Kingdom to the effect that the tips paid by credit card or cheque became the employer’s property since the vouchers signed by customers were made out to the employer and were cleared through the latter’s account. I find this approach too formalistic and unconnected with the reality of the situation. In this connection, it is important to bear in mind that this Court is not bound by the definitions of the concept of “possessions” or “property” given by the national legislation or the national judicial decisions. According to the jurisprudence of the Court, the notion of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning. In Gasus Dosier- und Fördertechnik GmbH v. the Netherlands (judgment of 23 February 1995 , Series A no. 306-B, p. 46, § 53) the Court stated that

“... the notion ‘possessions’ (in French: biens ) in Article 1 of Protocol No. 1 has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as ‘property rights’, and thus as ‘possessions’, for the purposes of this provision”.

I believe that this notion must be considered broad enough to cover a right to assets, such as the tips at issue, which are entrusted by one party to another party with the express or implied intention that they will be specifically handed over in full to a third party for the latter’s benefit. In such circumstances, the assets become the “possessions” of that third party. In simple legal terms the tips become the property or “possessions” of the waiters by virtue of the legal act commonly known in many legal systems as a gift or donation. And a gift or donation does not become less valid in law because it is made through a third party. In the instant case, the legal destination and effect of the tips are not frustrated as result of the fact that they pass through the account of the employer. The latter is still bound to hand over the tips to their beneficiaries. No question of a simple legitimate expectation on the part of the waiters arises in this case. The waiters are entitled eo jure to the gifts given for them – and only them – by the customers through the intermediary of the employer.

There was even a contract between the employer and the waiters to the effect that tips added to credit card vouchers or included in cheque payments would be paid over to them in the amount determined by the operation of the tronc system. The Government have not contested the fact that the applicants had a right to sue their employer in the event of the latter’s failure to pay them the tips.

As the tips should be considered as belonging entirely to the waiters, firstly, they should have been treated separately from the remuneration which was due to the waiters for the work they rendered under their contract of employment, and, secondly, the waiters’ minimum level of remuneration for that work should have been calculated without reference to those tips. It was for the employer to cover the applicants’ minimum wage out of profits or other resources, to the exclusion of the use of their “possessions”, namely the tips. This view is further supported by the fact that cash tips continued to be administered under the tronc system and were not counted towards remuneration. Yet the money intended for the applicants’ sole benefit was diverted by the employer in order to offset a portion of the wages which it was statutorily obliged to pay the applicants. Even though in the final analysis the applicants received the tips at issue in the form of “additional pay” minus the tax and national insurance contributions payable by each of them on the tips, it cannot be overlooked that the employer treated the tips as money which belonged to it by law and which could therefore be used to help make up the minimum wage to which the applicants were entitled independently of the tips.

It is my opinion that the interpretation given by the domestic courts to the notion of “remuneration” constituted a disproportionate interference with the applicants’ right to the peaceful enjoyment of their possessions since it allowed what was intended for and owed to the applicants to be used to satisfy the employer’s debt to them under the minimum wage legislation. I agree with the view of Lord Justice Aldous in the Court of Appeal (see paragraph 23 of the judgment) that such a practice, as condoned by the domestic courts, in effect authorised the employer to enrich itself at the expense of its staff.

I do not share the view of the majority that the case simply raised a question of “interpretation and application of domestic legislation in a given dispute [which] is essentially a matter for the domestic courts”. Whether the tips in this case could be regarded as “possessions of the applicants” for the purposes of Article 1 of Protocol No. 1 on the basis of the autonomous meaning of that term as established by the case-law of this Court was a matter which could and should have been determined by this Court in order to find whether there had been an interference with the relevant right of the applicants.

For the above reasons, I find that there has been a breach of the applicants’ rights under Article 1 of Protocol No. 1.