JOINT DISSENTING OPINION OF JUDGES ZUPAN Č I Č , ZAGREBELSKY AND MYJER

1 . We did not vote with the majority to strike the application out of the Court ' s list of cases. In our opinion the result of this case – as far as the applicant foundation (Stichting Touba Moskee) is concerned – shows that an extensive application of the criteria established in paragraph 97 of the judgment in the case of Sisojeva and Others v. Latvia ( (striking out) [GC], no. 60654/00, ECHR 2007- ... ) may lead to an undesirable outcome.

2 . We can accept that the position of Mr El Majjaoui may be compared with that of the applicants in the Sisojeva case. As far as this applicant is concerned the case is essentially about the admission of a foreign national to the domestic labour market. According to the standard case-law, the Contracting States have a legitimate interest in controlling the entry, residence and expulsion of aliens. Article 9 of the Convention does not as such guarantee foreign nationals a right to obtain a residence permit for the purposes of taking up employment, even if the employer is a religious association (see, mutatis mutandis, Hüsnü Öz v. Germany , no. 32168/96, Commission decision of 3 December 1996 ). We agree with the conclusion of the majority that since he is now allowed to stay in The Netherlands and a work permit has been issued, the matter giving rise to his complaints may be considered to have been resolved within the meaning of Article 37 § 1 (b).

3 . We have, however, serious doubts that the same can be said about the applicant foundation. Is the fact that Mr El Majjaoui was eventually issued a work permit enough to conclude that this was adequate and sufficient to remedy or resolve the initial complaint of the applicant foundation? The case of the applicant foundation should, in our opinion, not be considered solely as one involving the admission of a foreign national to the domestic labour market. In certain circumstances a measure which results in a religious community being prevented from appointing the minister of religion of its choice may constitute an interference with that community ' s rights under Article 9, even if the minister concerned is a foreign national. And looking at the facts of this case it is clear that between 28 February 2003 (the date on which the Administrative Jurisdiction Division of the Council of State upheld the refusal to issue a work permit to the applicant) and 3 March 2006 (the date on which a work permit was issued) the applicant foundation – and the local Moroccan community – were effectively deprived of the services of the imam they had sought to employ. Is it acceptable to simply disregard what happened in the past and conclude that everything has now been remedied and resolved?

4 . It is not unrealistic to think that the Chamber relinquished jurisdiction to the Grand Chamber so that it would determine the issue whether it was acceptable from the standpoint of Article 9 for a Contracting State to apply the same requirements for the delivery of a work permit to a foreign national who is invited to work as a religious minister as to foreign nationals who work in other professions. Is it permissible under Article 9 that a Contracting State, which according to the Court ' s abundant case-law has the duty of neutrality as regards the regulation of religious groups, should require that the foreign national who is to be appointed as a religious minister must earn the statutory minimum wage (see in respect of The Netherlands: Ineke Hendrickx and Tessel de Lange, Toelating van vreemdelingen voor verblijf bij religieuze organisaties (“Admission of aliens for the purpose of residence with religious organisations”), Wolf Legal Publishers, Centrum voor Migratierecht, WODC Ministerie van Justitie 2004)? And does Article 9 stand in the way of a Contracting State requiring, as far as religious ministers are concerned, that an employer first make sufficient efforts to fill the post by recourse to the domestic labour market, for example by advertising the position in the local and national press? Can such a requirement be considered legitimate when regard is had to the fact that in the choice of a religious minister/pastor/rabbi/imam much will depend on whether the religious community would have confidence in the person concerned? The answer given by the majority in paragraph 32 (“The Court considers that the mere fact that the applicant foundation had to comply with certain requirements before it was able to employ the applicant does not as such raise an issue under Article 9”) does little to clarify these issues.

5 . We have no difficulty in accepting that some requirements should be complied with even in such cases. And it is also clear that the restrictions laid down in paragraph 2 of Article 9 may apply. From the standpoint of Article 9 the central issue in the present case calls for an examination of the legitimacy of the requirements imposed and a determination of those conditions which are objectionable . In our opinion the Court should have examined the merits and should have tried to give a clearer answer to these questions.