DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

In the case of Young, James and Webster v. the United Kingdom *, which was decided by the Court in 1981, I voted with a minority that did not find a violation of Article 11 (art. 11) of the Convention. It was my opinion that the text of this Article (art. 11) cannot be construed as guaranteeing the so- called negative freedom of association. Its text makes no express reference to such a guarantee.

* Note by the registry: judgment of 13 August 1981 , Series A no. 44.

This is of particular significance because the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, is cited in the Preamble to the European Convention. There it is stated that the aim of our Convention is to take "the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration". Moreover, the travaux préparatoires show that those responsible for drafting the Convention were not prepared to include the negative freedom of association in it at that time. None of the ten protocols has changed that situation.

Even if others may be better qualified to give an interpretation of the 1981 judgment than I am, I venture to suggest that the very special circumstances of the above- mentioned British case make the judgment in it an unclear precedent.

The present case shows, in my opinion, that the classic freedom of association, which is expressly guaranteed in Article 11 (art. 11) of the Convention, is essentially different from the negative freedom of association. The freedom guaranteed by the Convention was originally one of the foundations of political freedom and activity. Since then, under the protection of this freedom, the trade unions, and their activities aimed at improving the lot of their members, have developed. The Icelandic case before the Court now shows that in certain circumstances it is not clear whether the negative freedom of association is likely to further the interests of those concerned in a way comparable to the clear benefits of the classic freedom. The applicant, Mr Sigurdur A. Sigurjónsson, was, according to Icelandic law, under an obligation to join a private-law association, Frami, which had certain duties in connection with the operation of taxi services. This was a part of a system that in modern-day usage could be called " subsidiarity ". There are arguments for and against making membership of an association a legal obligation. The situation in Iceland in this respect is currently being examined by the institutions set up under the 1961 European Social Charter. It is not for our Court to take sides in that debate. Its only task is to decide whether Article 11 (art. 11) of the Convention applies in this particular case. I think that the negative freedom is so special and so clearly distinguishable from the positive freedom of association, that a legal interpretation of the Article (art. 11) cannot result in the inclusion of the negative freedom within its sphere of application. Accordingly, and on the same basis as in 1981, I find no violation.

[*]  The case is numbered 24/1992/369/443.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 264 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  Note by the Registrar: as a derogation from the usual practice (Rules 26 and 27 para. 5 of the Rules of Court), the French text was not available until September 1993; but it too is authentic.