Sørensen and Rasmussen v Denmark, 11 January 2006 [ECtHR]

Case nos 52562/99 and 52620/99

1.  General principles

54.  The right to form and to join trade unions is a special aspect of freedom of association, and the notion of a freedom implies some measure of freedom of choice as to its exercise (see Young, James and Webster, cited above, § 52). Accordingly, Article 11 of the Convention must also be viewed as encompassing a negative right of association or, put in other words, a right not to be forced to join an association (see Sigurður A. Sigurjónsson v. Iceland, 30 June 1993, § 35, Series A no. 264). Although compulsion to join a particular trade union may not always be contrary to the Convention, a form of such compulsion which, in the circumstances of the case, strikes at the very substance of the freedom of association guaranteed by Article 11, will constitute an interference with that freedom (see Gustafsson v. Sweden, 25 April 1996, § 45, Reports of Judgments and Decisions 1996-II; and Young, James and Webster, § 55, and Sigurður A. Sigurjónsson, § 36, both cited above).

Furthermore, regard must also be had in this context to the fact that the protection of personal opinions guaranteed by Articles 9 and 10 of the Convention is one of the purposes of the guarantee of freedom of association, and that such protection can only be effectively secured through the guarantee of both a positive and a negative right to freedom of association (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 103, ECHR 1999‑III; and Young, James and Webster, § 57, and Sigurður A. Sigurjónsson, § 37, both cited above).

In this connection, the notion of personal autonomy is an important principle underlying the interpretation of the Convention guarantees. This notion must therefore be seen as an essential corollary of the individual's freedom of choice implicit in Article 11 and confirmation of the importance of the negative aspect of that provision.

55.  The parties have discussed at length whether in the area of trade union membership the negative aspect of the freedom of association should be considered on an equal footing with the positive right. The Court notes that hitherto it has not taken any definite stand on that point (see Young, James and Webster, Sigurður A. Sigurjónsson and, in a different context, Chassagnou and Others, all cited above).

56.  The Court does not in principle exclude that the negative and the positive aspects of the Article 11 right should be afforded the same level of protection in the area under consideration. However, it is difficult to decide this issue in the abstract since it is a matter that can only be properly addressed in the circumstances of a given case. At the same time, an individual cannot be considered to have renounced his negative right to freedom of association in situations where, in the knowledge that trade union membership is a precondition of securing a job, he accepts an offer of employment notwithstanding his opposition to the condition imposed. Accordingly, the distinction made between pre-entry closed‑shop agreements and post-entry closed-shop agreements in terms of the scope of the protection guaranteed by Article 11 is not tenable. At most, this distinction is to be seen as a consideration which will form part of the Court's assessment of the surrounding circumstances and the issue of their Convention compatibility.

57.  It is further to be observed that, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”. The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention. Thus, in the context of Article 11, although the essential object is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, the national authorities may in certain circumstances be obliged to intervene in the relationship between private individuals by taking reasonable and appropriate measures to secure the effective enjoyment of those rights (see, mutatis mutandis, Young, James and Webster, § 49, and Gustafsson, § 45, both cited above; and Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002-V).

In the present case, the matters about which the applicants complained did not involve direct intervention by the State. However, Denmark's responsibility would be engaged if these matters resulted from a failure on its part to secure to the applicants under domestic law their negative right to freedom of association.

58.  The boundaries between the State's positive and negative obligations under Article 11 of the Convention do not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the State or in terms of interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 144, ECHR 2004-V, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 98 et seq., ECHR 2003-VIII).

In the area of trade union freedom and in view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how the freedom of trade unions to protect the occupational interests of their members may be secured (see Swedish Engine Drivers' Union v. Sweden, 6 February 1976, § 39, Series A no. 20; Gustafsson, cited above, § 45; Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000; and Wilson, National Union of Journalists and Others, cited above, § 44). Thus, the Court has so far not found fault with a Contracting State's failure to impose on an employer an obligation to recognise a trade union or to provide for a system of compulsory collective bargaining (see Wilson, National Union of Journalists and Others, § 44, and cases cited therein).

However, where the domestic law of a Contracting State permits the conclusion of closed-shop agreements between unions and employers which run counter to the freedom of choice of the individual inherent in Article 11, the margin of appreciation must be considered reduced. The Court reiterates in this connection that, although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster, cited above, § 63, and Chassagnou and Others, cited above, §§ 112-13). In assessing whether a Contracting State has remained within its margin of appreciation in tolerating the existence of closed-shop agreements, particular weight must be attached to the justifications advanced by the authorities for them and, in any given case, the extent to which they impinge on the rights and interests protected by Article 11. Account must also be taken of changing perceptions of the relevance of closed-shop agreements for securing the effective enjoyment of trade union freedom.

The Court sees no reason not to extend these considerations to both pre-entry and post-entry closed-shop agreements.

2. Application of the above principles in the instant case

59.  The Court will examine whether the applicants were in fact compelled to join a particular trade union and, in the affirmative, whether such compulsion struck at the very substance of the negative right to freedom of association guaranteed by Article 11 of the Convention. It observes that the present case concerns the application of pre-entry closed-shop agreements to the applicants. They were both aware before taking up their respective jobs that an obligation existed to join SID, and that this was a condition for obtaining and retaining their employment. The Government have argued that the applicants' situation differs from those dealt with previously by the Court since the applicants could never have assumed the contrary. In the Court's view, however, the fact that the applicants accepted membership of SID as one of the terms of employment does not significantly alter the element of compulsion inherent in having to join a trade union against their will. Had they refused they would not have been recruited. In this connection, the Court can accept that individuals applying for employment often find themselves in a vulnerable situation and are only too eager to comply with the terms of employment offered.

60.  The Government have further submitted that the applicants could have chosen to seek employment with an employer who had not entered into a closed-shop agreement and that this option was open to them since in general less than 10% of the labour market was affected by closed‑shop agreements. Closed-shop agreements are unlawful in the public-sector labour market and are no longer concluded in the part of the private-sector labour market covered by the general agreement between DA and LO (see paragraphs 22, 24 and 25 above). The Court for its part can accept this analysis. However, it remains to be determined whether the applicants were nonetheless individually and substantially affected as a result of the application of the closed-shop agreements to them.

61.  It is not in dispute that the applicant Sørensen could have found holiday relief employment elsewhere with an employer who had not entered into a closed-shop agreement, and it appears to be common ground that, since at the relevant time he was 21 years old, had just finished his military service and was about to commence his university studies, he was not in the long term dependent on keeping his job with FDB, which in any event would only have lasted ten weeks. The Government have argued that his situation cannot be compared with the hardship and the serious consequences that arose for the applicants in, for example, the above-cited cases of Young, James and Webster and Sigurður A. Sigurjónsson. However, it must be observed that the applicant Sørensen was dismissed without notice as a direct result of his refusal to comply with the requirement to become a member of SID, a requirement which had no connection with his ability to perform the specific job or his capacity to adapt to the requirements of the workplace. In the Court's opinion, such a consequence can be considered serious and capable of striking at the very substance of the freedom of choice inherent in the negative right to freedom of association protected by Article 11 of the Convention.

62.  The applicant Rasmussen was born in 1959 and had worked as a gardener for many years. He had been a member of SID in the mid-1980s but resigned his membership and joined the Christian Trade Union instead. Following a period of unemployment, on 17 May 1999 he commenced his current employment at a nursery after rejoining SID, this being one of the conditions for the job. It is impossible to know whether he would have remained unemployed had he not at the relevant time accepted his current job which included obligatory membership of SID. It is speculative whether, if he were to resign his membership of SID, he could find employment elsewhere with an employer who had not entered into a closed-shop agreement. It is certain, however, that should the applicant Rasmussen resign from SID, he would be dismissed without the possibility of reinstatement or compensation since the dismissal would be in accordance with the Danish Freedom of Association Act. Moreover, although closed‑shop agreements do not extend to the entire horticultural sector, they are nevertheless very common (see paragraphs 22, 26, 30 and 32 above). In these circumstances, the Court is satisfied that the applicant Rasmussen can be considered to be individually and substantially affected by the application of the closed‑shop agreement to him.

63.  As to whether the applicants' personal views and opinions were compromised (see paragraph 54 above), it is to be noted that both applicants objected to membership of SID because they were unable to subscribe to the political views of that trade union (and those of the other trade unions affiliated to LO). Instead, the applicant Sørensen joined Denmark's Free Trade Union, and the applicant Rasmussen wishes to rejoin the Christian Trade Union. The Government have pointed out that the applicants had the possibility of subscribing to a form of “non-political membership” of SID or of any other trade union pursuant to the Private Contributions to Political Parties and Disclosure of the Accounts of Political Parties Act (see paragraph 21 above). However, it is to be observed that such “non-political membership” does not entail any reduction in the payment of the membership fee to the specific trade union. In any event, there is no guarantee that “non-political membership” will not give rise to some form of indirect support for the political parties to which the specific trade union contributes financially.

64.  In these circumstances, the Court concludes that both applicants were compelled to join SID and that this compulsion struck at the very substance of the freedom of association guaranteed by Article 11 of the Convention.

653.  It remains to be determined whether the respondent Government, in authorising the use of the closed-shop agreements in issue, failed in the circumstances to secure the applicants' effective enjoyment of their negative right to freedom of association and thereby violated Article 11 of the Convention. The Court's assessment must be focused on whether a fair balance has been struck between the applicants' interests and the need to ensure that trade unions are able to strive for the protection of their members' interest (see paragraph 58 above).

66.  The Court notes the special features of the Danish labour market, in particular the fact that the relationship between employers and employees is governed by a combination of agreements (collective and individual), labour-law principles, general statutes and statutory rules (see paragraph 22 above). Moreover, the institution of closed-shop agreements is a long-standing practice in Denmark, although they are unlawful in the public-sector labour market and are not concluded in the part of the private-sector labour market covered by the general agreement between DA and LO (see paragraphs 22, 24, 25 and 60 above). Closed-shop agreements thus presently affect only approximately 220,000 wage earners, which is equivalent to less than 10% of all Danish employees on the labour market.

67.  Furthermore, in their report, the committee set up to look into closed‑shop agreements found, among other things, that the general developments in society and the labour market could no longer justify, to the same extent as before, the need for closed-shop agreements, since strong and representative trade unions and organisations had now been established on the labour market. Moreover, since closed-shop agreements merely covered a small part of the labour market, a change in the law would have only a marginal impact on union density rates (see paragraphs 23 and 24 above).

68.  In January 2003 and again in January 2005 (see paragraphs 27 and 31 above), the Minister for Employment presented a bill to Parliament to amend the Protection against Dismissal due to Association Membership Act, which aimed at ensuring, among other things, that in the future no agreements could be lawfully concluded which imposed a duty on an employer to employ exclusively or to give preference to persons who were members of an association or a specific association. In the explanatory memorandum to the bill, the government stated among other things (see paragraph 28 above) that they “consider that there should be freedom for an employee to decide whether to become a member of an association – just as there should be freedom to choose not to become a member of an association – without this leading to a risk of not being recruited or of being dismissed” and that they “find it unreasonable that a clause in a collective agreement may prevent an employee who does not wish to be a member of an association or a specific association from obtaining or keeping employment with an employer or may prevent an employer from considering the candidate's qualifications alone”.

69.  In the beginning of May 2003, it became clear that the bill had failed to secure the necessary majority in Parliament and was withdrawn. Nevertheless, it was tabled anew in December 2004 and discussed by Parliament in January 2005. However, once again a majority in favour of changing the law could not be secured (see paragraph 31 above).

70.  It is to be observed that these legislative attempts to eliminate entirely the use of closed-shop agreements in Denmark would appear to reflect the trend which has emerged in the Contracting Parties, namely that such agreements are not an essential means for securing the interests of trade unions and their members and that due weight must be given to the right of individuals to join a union of their own choosing without fear of prejudice to their livelihood. In fact, only a very limited number of Contracting States, including Denmark and Iceland, continue to permit the conclusion of closed-shop agreements (see paragraph 34 above).

71.  It is true that in the context of the Danish debate on this topic LO has voiced its opposition to the attempts to eliminate the remaining areas where pre-entry closed‑shop agreements continue to be applied. LO has pointed to the severe consequences which the prohibition of closed-shop clauses would entail, and in particular its view that it would become difficult or impossible to enforce collective agreements vis-à-vis small non-affiliated employers (see paragraph 51 above). However, the Court considers that these concerns have been adequately addressed by the Minister for Employment in his reply to question no. 7 put by the parliamentary committee, namely that an annulment of a closed‑shop provision in a collective‑bargaining agreement with a non‑organised employer would not change the fact that the collective‑bargaining agreement is still valid and must be complied with (see paragraph 29 above). Furthermore, the Court has not been informed that the concerns expressed by LO have materialised in any of the very many Contracting Parties which have abolished closed-shop agreements entirely.

72.  The Court also observes that the desire of the Danish legislature to bring an end to the use of closed-shop agreements in the private sector is consistent with the manner in which the 1961 Social Charter has been applied to the issue of pre-entry closed-shop agreements. In its Conclusions XIV‑1, XV-1 and XVI-1, the European Committee of Social Rights found that the Danish Protection against Dismissal due to Association Membership Act infringed Article 5 of the Social Charter (see paragraph 35 above) and accordingly the Governmental Committee proposed that a recommendation be addressed to Denmark. Admittedly, at the 740th meeting of the Ministers' Deputies in February 2001 the required majority was not obtained. However, shortly thereafter, in September 2002, the Danish government informed the Governmental Committee of the European Social Charter of their intention to introduce a bill prohibiting closed-shop agreements and the latter therefore decided to await the next assessment by the European Committee of Social Rights. Subsequently, when it had become clear that the bill had failed to secure the necessary majority in Parliament and was withdrawn, in its Conclusions XVII-1 of March 2004 the European Committee of Social Rights maintained that the Danish Protection against Dismissal due to Association Membership Act infringed Article 5 of the Social Charter, in response to which the government stated that once the parliamentary situation was more favourable they would resubmit the draft legislation (see paragraph 35 above).

73.  Reference should also be made to the Community Charter of the Fundamental Social Rights of Workers, adopted by the heads of State or government of eleven member States of the European Communities on 9 December 1989. This text provides that every employer and every worker shall have the freedom to join or not to join professional organisations or trade unions without any personal or occupational damage being thereby suffered by them (see paragraph 37 above).

74.  Article 12 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (2000/C 364/01) (see paragraph 37 above), is devoted to freedom of assembly and association. The above-mentioned provisions of the Community Charter of the Fundamental Social Rights of Workers are of obvious relevance for the interpretation of the scope of Article 12. It should be noted in this connection that Article 53 of the Nice Charter states that nothing therein shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by European Union law and international law and by international agreements to which the European Union, the Community, or all the member States are party, including the Convention for the Protection of Human Rights and Fundamental Freedoms, and by the member States' constitutions.

75.  In view of the above, it appears that there is little support in the Contracting States for the maintenance of closed-shop agreements and that the European instruments referred to above clearly indicate that their use in the labour market is not an indispensable tool for the effective enjoyment of trade union freedoms.

76.  In conclusion, taking all the circumstances of the case into account and balancing the competing interests in issue, the Court finds that the respondent State has failed to protect the applicants' negative right to trade union freedom.

77.  Accordingly, there has been a violation of Article 11 of the Convention in respect of both applicants.


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