JOINT CONCURRING OPINION OF JUDGES LEMMENS AND TURKOVIĆ

( T ranslation)

1. We voted with our colleagues as regards the conclusions set out in the operative provisions of the judgment. However, we have some reservations about the reasoning that led to those conclusions.

Refusal to recognise the applicant union as having the necessary representative status for collective bargaining

2. According to the majorit y , the withdrawal of the applicant union ’ s representative status amounted to an interference with the exercise of its trade-union freedom ( see paragraph 37 of the judgment ).

In our opinion, it is not obvious that th is should be characterised as interference . The issue is the refusal to recognise the applicant union as having the necessary representative status to be able to engage in collective bargaining. We consider that such a refusal can also be analysed as a failure by the respondent State to comply with its positive obligation to secure the enjoyment of the applicant union ’ s rights under A rticle 11 of the Convention.

That being so, the Court could have followed the approach adopted in Demir and Baykara v. Turkey ( [GC], no. 34503/97, § 116, ECHR 2008) , concerning a similar complaint. In that case the Court acknowledged that the complaint could be analysed either as an interference or as a breach of a positive obligation, and stated that it would “proceed on the basis” that the complaint was to be examined in terms of an interference, while also having regard to the State ’ s positive obligations in this context .

3. As to whether the interference in issue was justified, we subscribe to the line of reasoning set out in paragraphs 38 - 47 of the judgment and we therefore agree with the conclusion that there has been no violation of A rticle 11 of the Convention in this respect .

Alleged deunionisation of the company through the dismissal of the applicant union ’ s members

4. A s regards the other complaint raised by the applicant union , namely the insufficient protection afforded by domestic law against the large-scale wrongful dismissal of its members by the company employing them , the opposite problem arises.

After mention ing that A rticle 11 of the Convention may impose both positive and negative obligations on the State ( see paragraph 50 of the judgment ), the majorit y find that in the present case there has been an interference with the applicant union ’ s exercise of its right to conduct trade-union activities and engage in collective bargaining ( see paragraph 51 of the judgment ). [1]

To our regret, we are unable to agree with the majority on this point. In our opinion, there was no direct intervention by the State in the events complained of by the applicant union , namely the dismissal of its members by their employe r, a private company .

Accordingly, the only question arising in relation to this complaint is whether the State afforded sufficient protection against the employer ’ s actions in order to secure effective respect for the applicant union ’ s rights ( see , mutatis mutandis , Sørensen and Rasmussen v . De n mark [GC], n os. 52562/99 and 52620/99, § 57, ECHR 2006 ‑ I ). This question relates solely to the State ’ s positive obligations.

5. For the reasons given by the majorit y in relation to the necessity of the “interference” (see paragraph s 54-56 of the judgment ), we consider that the applicable legal regime , as implemented in the applicant union ’ s case , failed to strike a fair balance between the union ’ s and the employer ’ s rights ( see, i n particul a r, paragraph 56 of the judgment ). On that basis, we agree with the conclusion that there has been a violation of A rticle 11 of the Convention in respect of this complaint .

[1] . Curi ously , in paragraph 56 the judgment concludes that “neither the legislature nor the courts involved in the case satisfied their positive obligation to secure the effective enjoyment” of certain of the applicant union’s rights ( emphasis added ).