DISSENTING OPINION OF JUDGE MORENILLA, JOINED BY JUDGE RUSSO

1. I regret to be unable to agree with the reasoning of the majority and with its conclusion that there has been no violation of Article 11 (art. 11) of the Convention in the present case. The facts, established in paragraphs 7 to 15 of the judgment show, on the contrary, that Mr Sibson ’ s freedom of association was violated as a result of the compulsion exerted by his employer threatening either to move him to another place of work or to suspend him without pay if he did not rejoin the union that he had previously abandoned. In my view the termination of the applicant ’ s contract of employment that followed his refusal to join a union against his will amounts to a relevant and unjustified interference with his rights under Article 11 (art. 11) for which the United Kingdom is responsible, in accordance with Article 1 (art. 1) of the Convention, since the infringement resulted from the failure of the United Kingdom to fulfil its positive obligation to adapt the legal system in order to secure that freedom.

2. To explain my position. I must say first that, in agreement with Judges Ganshof van der Meersch, Bindschedler-Robert, Liesch, Gölcüklü , Matscher , Pinheiro Farinha and Pettiti in their concurring opinion in the case of Young, James and Webster v. the United Kingdom (judgment of 13 August 1981, Series A no. 44, p. 28), my understanding of Article 11 (art. 11) is that "the negative aspect of freedom of association is necessarily complementary to, a correlative of and inseparable from its positive aspect. Protection of freedom of association would be incomplete if it extended to no more than the positive aspect. It is one and the same right that is involved".

Therefore, it is not a question of recognising a new right not included in Article 11 (art. 11) , but of merely interpreting this provision in accordance with the ordinary meaning given to the term "freedom" in the context and in the light of its object and purpose, in conformity with Article 31(1) of the Vienna Convention of 23 May 1969 on the Law of Treaties (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 14, para. 29, and the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 24, para. 51). In this respect, Article 20 of the Universal Declaration of Human Rights, when defining the right to freedom of association, expressly declares in paragraph 2 that "no one may be compelled to belong to an association". The omission of that clause in the European Convention should not be interpreted, in my view, as limiting the exercise of that right: the Convention - according to its Preamble - was created as a step towards the collective enforcement of certain of the rights stated in the Universal Declaration of Human Rights with the aim of "the maintenance and further realisation of human rights and fundamental freedoms."

It should also be mentioned that the legislation in the member States, including the United Kingdom ’ s Employment Act 1988 (paragraph 18 of this judgment), the recent case-law of the Intergovernmental Committee relating to Article 5 of the European Social Charter and Recommendation 1168 (1991) of the Parliamentary Assembly of the Council of Europe to amend this Article, all recognise that the right to join an organisation also implies the right not to join.

3. In Young, James and Webster the Court nevertheless did not consider it necessary to answer the question pleaded by the parties as to whether or not Article 11 (art. 11) of the Convention guarantees a "negative right" of not being compelled to join an association. But it recalled, however (ibid., para. 52), that "the right to form and to join trade unions is a special aspect of freedom of association", adding that "the notion of a freedom implies some measure of freedom of choice as to its exercise". In the same paragraph of the said judgment, the Court also stated that even assuming, for the sake of argument, that the general rule stated in Article 20 para. 2 of the Universal Declaration of Human Rights was deliberately omitted from the Convention, "it does not follow that the negative aspect of a person ’ s freedom of association falls completely outside the ambit of Article 11 (art. 11) and that each and every compulsion to join a particular trade union is compatible with the intention of that provision. To construe Article 11 (art. 11) as permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom it is designed to guarantee". And, finally, as to the necessity of the measure taken against an employee for refusing to join a specific trade union, in paragraph 63 of its judgment the Court said that "a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position".

4. In my view, the arguments of the majority (paragraph 29) not only seem to disregard an evolutive interpretation of Article 11 (art. 11) - eleven years after the Court ’ s judgment in Young, James and Webster - in the light of present-day conditions (see the above-mentioned Johnston and Others judgment, p. 25, para. 53) according to the developments referred to above. They also narrow the doctrine of the Court as set forth in the previous case by diluting the concept of compulsion to one of "treatment" and by not considering the pressure exerted on Mr Sibson to join a union against his will, which resulted in a loss of his livelihood, as striking at the very substance of his freedom of association.

5. The majority has based its opinion on the fact that the present case can be distinguished from that of Young, James and Webster. The main arguments are that Mr Sibson did not object to rejoining the trade union (TGWU) on the basis of any specific conviction; that this case was not one in which a closed shop agreement was in force, and "above all" that Mr Sibson was not faced with a threat of dismissal involving loss of livelihood since he had the possibility of going to work at another nearby depot, to which the employers were contractually entitled to move him, and where his working conditions had not been clearly shown to be significantly less favourable. Having regard to these various distinguishing factors, they come to the conclusion that "Mr Sibson was not subjected to a form of treatment striking at the very substance of the freedom of association guaranteed by Article 11 (art. 11)".

6. This reasoning appears to me to be contradictory because it combines opposing arguments based on the employer ’ s right to transfer the applicant to another nearby depot, according to Mr Sibson ’ s contract of employment, and on the applicant ’ s right not to join a union against his convictions, under Article 11 (art. 11) of the Convention. If, as the English Court of Appeal decided (paragraph 14), the case is covered only by the law of contract and Mr Sibson was not unfairly dismissed for refusing to move to the nearby depot indicated by his employer since he failed to show the prejudice that he suffered from such a measure, no question arose as to the reasons for his resignation when he considered himself "constructively dismissed" (paragraph 19); this being the case the reference to Young, James and Webster seems unnecessary since it would not be applicable. If, on the contrary, the present case is covered by Article 11 (art. 11) as interpreted in the previous case, such circumstances are irrelevant and the motive for his transfer becomes an essential issue.

7. I am clearly of the view that the present case is covered by Article 11 (art. 11) of the Convention rather than by the law of contract; it is also my opinion that the particular circumstances surrounding the transfer of Mr Sibson to the depot or the kind of action brought before the United Kingdom ’ s courts are not relevant reasons to depart from the Court ’ s leading case of Young, James and Webster.

8. Several circumstances in this case are certainly different from Young, James and Webster but, in my opinion, the essential circumstances of both cases are the same and, consequently, the present case merits an identical conclusion.

9. With the dissenting members of the Commission, I also think that it is clear from the facts of this case that Mr Sibson, like Mr Young, Mr James and Mr Webster, lost his job without any compensation, after twelve years of working at the Greengate depot to the "complete satisfaction" of his employer (paragraph 7), as a direct result of exercising his right not to belong to a trade union. I also consider that the motive of the applicant ’ s employer in exercising his contractual rights to transfer the applicant is a decisive element in reaching this conclusion. The transfer of the applicant was not made for genuine operational reasons, "the sole purpose being to avoid a strike" (paragraph 12) threatened by his fellow employees if Mr Sibson did not rejoin the TGWU since they had voted for a closed shop which had not existed at Greengate (paragraph 10).

10. As regards Mr Sibson ’ s motives for refusing to rejoin TGWU to the point of not accepting the pressure exerted on him by his employer and his fellow workers and to consider himself "constructively dismissed" (paragraph 19), it further appears from the facts that he was not satisfied with the decision to dismiss a complaint that he had lodged with the local branch of the union, concerning an alleged accusation of appropriation of the funds of the union when he was branch secretary, something that he considered deprecatory (paragraph 9). In my view, his objection was not whimsical or opportunist, but was based on his sense of self-esteem and honour that, in my view, are part of the freedom of association protected by Article 11 (art. 11) and deserve to be treated in the same way as other conscientious objections such as those of Mr Young, Mr James and Mr Webster. Therefore I do not see this point as a reason for departing from Young, James and Webster.

11. As to the seriousness of the compulsion exerted on Mr Sibson, he was placed in the position of either renouncing his conviction and thus being forced to join a union against his will or being suspended without pay or being moved without any valid operational reason to another place that he considered detrimental.

In my view such compulsion, which caused Mr Sibson to lose his job - like Mr Young, Mr James and Mr Webster -, cannot be justified under paragraph 2 of Article 11 (art. 11-2) and amounts to a breach of this provision on the grounds that the United Kingdom failed to protect the applicant ’ s rights.

12. Finally, I believe that the threat of a strike does not justify the necessity in a democratic society of such a measure as that taken by the applicant ’ s employer having regard to the fundamental principle of the rule of law ( Klass and Others judgment of 6 September 1978, Series A no. 28, p. 25, para. 55). It violated a fundamental freedom of an employee and clearly amounted to an abusive imposition of a de facto closed shop, where it did not exist, in order to force him to act against the dictates of his conscience. As I have already mentioned, the Court held in paragraph 63 of its judgment in the case of Young, James and Webster that for the rights under Article 11 (art. 11) to be effective the State must protect the individual against any abuse of a dominant position by trade unions.

Unlike the case of Young, James and Webster (ibid., pp. 16, 17 and 18, paras . 35, 39 and 44), when deciding on Mr Sibson ’ s complaint of unfair dismissal and reinstatement in his former position, the Industrial Tribunal unanimously accepted the complaint stating that "the request that he move to Chadderton was not reasonable since it was not made for operational reasons but solely to avoid a strike", and "that the dismissal was unfair because its only motive was his exercise of his express right not to belong to a union" (paragraph 12 of this judgment). The Employment Appeal Tribunal, dismissed the employer ’ s appeal and found that "the Industrial Tribunal had not erred in law, misdirected itself or reached an unreasonable conclusion" (paragraph 13).

[*]  The case is numbered 4/1992/349/422.  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 258-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.