CONCURRING OPINION OF JUDGE GAUKUR JÖRUNDSSON

Article 11 protects the right of everyone to form and join trade unions “for the protection of his interests”. It is this expression “for the protection of his interests”, which calls for special attention and consideration in the present case.

It is important to note that in National Union of Belgian Police v. Belgium (judgment of 27 October 1975 , Series A no. 19) and in Swedish Engine Drivers' Union v. Sweden (judgment of 6 February 1976 , Series A no. 20), the Court went to some lengths to emphasise that the words “for the protection of his interests” were not redundant . The Court emphasised that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. It underlined that the members of a trade union have a right “in order to protect their interests, that the trade union should be heard”. The Court found that the right to be heard was satisfied by the fact that, in those cases, it was open to the representative unions “to present claims, to make representations for the protection of the interests of [their] members or certain of them ...” (p. 18, §§ 39, 40, in the Belgian case; pp. 15-16, §§ 40, 41, in the Swedish case; the quotation is from the Swedish case).

It is clear, however, that this right to be heard is, according to the case-law, a limited one. In the above-mentioned Belgian case, the Court stressed that the right to be heard did not even suppose a right to be consulted and, in the Swedish case, that the right to be heard did not entail a right for the applicant trade union to be allowed to enter into a collective agreement with an employer.

The fact, nevertheless, remains that the case-law has clearly concluded that a right to be heard is protected by Article 11. One can say, therefore, that this right is a minimum which should be protected. This interpretation is supported by the European Social Charter 1961 and the International Labour Organisation's Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87), and its Right to Organise and Collective Bargaining Convention, 1949 (no. 98) (see paragraphs 30-37 of the judgment).

The domestic legal situation at issue in this case went further than either the Swedish or the Belgian cases just quoted in stripping the trade union of effective power to protect members' interests. It permitted employers to ignore all representation by trade unions on behalf of their members and,

furthermore, to use financial incentives to induce employees to surrender important union rights. The respondent State has thus, in my opinion, failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. There has, accordingly, been a violation of Article 11 as regards the applicant trade unions and the individual applicants.