AS TO THE ADMISSIBILITY OF
Application no. 52620/99
by Hans Henrik JENSEN and Ove RASMUSSEN
The European Court of Human Rights (First Section), sitting on 20 March 2003 as a Chamber composed of
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs N. Vajić,
Mr E. Levits,
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application introduced on 22 September 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicants are Danish nationals, born in 1960 and 1959 and living in Kolding and Haderslev, respectively. They are represented before the Court by Mr. Jon Palle Buhl, a lawyer practising in Copenhagen. The respondent Government are represented by their Agent, Mr Hans Klingenberg, the Ministry of Foreign Affairs.
A. The circumstances of the cases
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is a storeman. He was member of a trade union, henceforth called SID, from September 1979 until he resigned membership in 1984. On 18 September 1989 he was employed by a company called Novodan A/S.
On 22 August 1990 this employer and SID entered into a collective agreement, in which it was agreed that all future employees must be members of SID. The applicant rejoined SID on 1 October 1990. However, due to frequent arrears with subscription the applicant was excluded from SID. Consequently he was dismissed with effect from 14 March 1996.
The applicant instituted proceedings before the High Court of Western Denmark (Vestre Landsret) against Novodan A/S requesting compensation, and that the company be ordered to recognise that his dismissal was unlawful. He alleged, inter alia, that the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982, as amended on 13 June 1990 (Lov om beskyttelse mod afskedigelse på grund af foreningsforhold), violates Article 11 of the Convention as it allegedly allows an employer to require that the employee must be a member of an association or a specific association in order to obtain employment. On 2 February 1998 the High Court found for the employer. In its judgment the court stated inter alia as follows:
“With reference to the evidence produced, the High Court finds it established that the collective agreement entered into between Novodan A/S and SID on 22 August 1990 applied only to subsequent employee’s. Therefore, the agreement was in conformity with section 2, subsection 1 of the Danish Act on Protection against Dismissal due to Association Membership. Accordingly, as the applicant was already employed at that time, the agreement did not apply to him. The applicant has explained that due to pressure he joined SID shortly after the agreement had been entered into. However, the Court notes that the applicant was a member of SID during the next five years thereafter only interrupted by short periods of arrears, but during this period the applicant never once contested his membership. Consequently, the applicant can not now maintain that he only joined SID due to pressure. Thus, since the applicant was a member of SID until he was finally excluded due to arrears with his subscriptions, the dismissal was lawful cf. section 2, subsection 3 of the Danish Act on Protection against Dismissal due to Association Membership. Therefore, the pertinent question is whether the Act in question, and with it the applicant’s dismissal, is at variance with Article 11 of the Convention on Human Rights, in the light of the interpretation this Article has been given by the Court of Human Rights in its latest case-law.
Article 11 of the European Convention on Human Rights secures the classical freedom of assembly and association including the right to form and join trade unions. The wording of the Article does not clearly indicate whether a right not to join associations and trade unions is secured also (the negative freedom of association).
In the Young, James and Webster v. UK judgment Series A no. 44 the Court concluded that in the specific case Article 11 did also secure the negative freedom of association as regards trade unions. This judgment resulted in the Parliament’s passing of the Danish Act on Protection against Dismissal due to Association Membership. At the time the law was passed, it was undoubtedly in accordance with the interpretation then of Article 11 cf. inter alia the European Commission’s decision of 3 May 1988, Steen Bille FREDERIKSEN and others v. Denmark, in which the Commission states: ‘The Commission finds that Denmark has taken reasonable steps to comply with its obligation under Article 11 of the Convention by introducing this Act’. However, as submitted by the applicant, the Court has developed the notion of negative freedom of association under Article 11 in its previous case-law, notably by the Sigurjόnsson v. Iceland Judgment of 30 June 1993 in which the Court under § 35 stated inter alia: ‘In this connection, it should be recalled that the Convention is a living instrument which must be interpreted in the light of present-day conditions ... Accordingly, Article 11 must be viewed as encompassing a negative right of association. It is not necessary for the Court to determine in this instance whether this right is to be considered on an equal footing with the positive right’.
However, these last judgments have not resulted in any Danish Government Bills with a view to amend the Act on Protection against Dismissal due to Association Membership.
In the High Court’s opinion these last judgments do raise substantiated doubts about whether the exceptions mentioned in section 2, subsection 2 and 3 of the Act on Protection against Dismissal due to Association Membership are infringing Article 11, notably given the interpretation this Article was given in the Sigurjόnsson judgment. In addition, the High Court finds it significant and problematic, and possibly in breach of the Convention’s provisions concerning freedom of expression, that individuals can be obliged to join trade unions with a strong political affiliation contrary to that of the individual.
Even assuming that the Act in question, and with it the applicant’s dismissal, is at variance with Article 11 of the Convention, the High Court finds it doubtful whether the applicant in his claim stemming from a lawful dismissal according to Danish law, by a private employer can invoke the Convention as, in principle, only the ratifying States can be fettered by the Convention (the so-called third party effect). However, the High Court has not found it necessary to decide on this issue in order to decide the merits of the case before it.
The exceptions mentioned in section 2, subsection 2 and 3 of the Act on Protection against Dismissal due to Association Membership are formulated very precise and again, the law itself when passed was undoubtedly in accordance with the prevailing interpretation then of Article 11 of the Convention.
Thus, taking into consideration the far-reaching consequences for the Danish labour market a decision may have that sets aside or limits the existing possibility to enter into closed shop agreements, the High Court finds it appropriate to leave it to the legislature to decide whether the previous case-law from the Court of Human Rights concerning Article 11 do require an amendment of the Act on Protection against Dismissal due to Association Membership.”
By judgment of 6 May 1999, the Supreme Court (Højesteret) found for the applicant and awarded him damages in the amount of 200,000 Danish kroner (DKK).
As regards Article 11 of the Convention the Supreme Court stated as follows :
”According to the Young, James and Webster v. UK judgment of 13 August 1981, Series A no. 44 (British Rail) it is in breach of Article 11 of the European Convention on Human Rights concerning freedom of association to dismiss an employee who refuses to join a trade union with whom the employer has entered into a closed shop agreement at a time after the employment of the employee, in so far as membership was not a condition for the employment. The Court emphasised that it did not decide on closed shop agreements as such, but only to its effect on the three applicants.
In the Sigurjόnsson v. Iceland judgment of 30 June 1993 the Court of Human Rights found a violation of Article 11 in a situation where a holder of a taxi licence had his licence revoked because he resigned a specific association of taxicab owners. The Court found it of importance that obligatory membership of the association was enjoined him by law and that there was no duty to join the association when Sigurjόnsson obtained his taxi licence as the original demand of this lacked authority in the law. As in the British Rail judgment, the Court emphasised that it did not decide on the extent of Article 11of the Convention in relation to the negative freedom of association.
Against this background, the Supreme Court finds no reasons in the Sigurjόnsson judgment to assess the lawfulness of closed shop agreements and their consequences any differently than what appears from the British Rail judgment. The same goes for the remainder of judgments that the parties have referred to (The Sibson v. U.K. judgment of 20 April 1993, Series A no. 258 and the Gustafsson v. Sweden judgment of 25 April 1996, Reports of Judgments and Decision 1996-II)”.
However, the majority of judges in the Supreme found that the exception prescribed in section 2, subsection 3 of the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982 did not cover the situation, where a closed shop agreement had been concluded subsequent to the employment of the person in question. Accordingly, the Supreme Court found that the dismissal of the applicant had been wrongful, contravening section 2, subsection 1 of the said Act for which reason he was, as mentioned, granted compensation in the amount of DKK 200,000.
In two other recent cases, the Supreme Court decided by judgments of 8 June 1999 and 12 May 2000, respectively, on the lawfulness of closed shop agreements in relation to the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982 and in relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It appears from those judgments that according to the interpretation made by the Supreme Court, closed shop agreements are as such not contrary to Article 11 of the Convention as the provision has been interpreted by the Strasbourg Court.
The second applicant is a gardener. He became a member of SID in the mid 80’s, but resigned his membership after a few years as he could not support their political affiliation. Instead he became member of the Christian Trade Union (Kristelig Fagforening). After having been unemployed for a while he was offered a job at a nursery (Gartneriet i Regnmark I/S) on the condition that he would become a member of SID as the employer had entered a closed shop agreement with this trade union. The applicant commenced the job on 17 May 1999 and he rejoined SID, though he could still not agree with its political views.
B. Relevant domestic and international law and practises
Section 78 of the Danish Constitution (Danmarks Riges Grundlov) provides:
1. Citizens shall, without previous permission, be free to form associations for any lawful purpose.
2. Associations employing violence, or aiming at the attainment of their object by violence, by instigation to violence, or by similar punishable influence on persons holding other views, shall be dissolved by a court judgment.
3. No association shall be dissolved by any government measure; but an association may be temporarily prohibited, provided that immediate proceedings be taken for its dissolution.
4. Cases relating to the dissolution of political associations may, without special permission, be brought before the Supreme Court (Rigets øverste domstol).
5. The legal effects of the dissolution shall be determined by statute.
The Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982 (which was passed as a direct result of the Court’s ruling in 1981 in the Young, James and Webster v. UK judgment, Series A no. 44), amended by Act no. 347 of 29 May 1990, reads in as far as relevant:
An employer may not dismiss an employee on the grounds that he or she is a member of an association or of a certain association.
1. An employer may not dismiss an employee on the grounds that he or she is not a member of an association or of a certain association
2. Subsection 1 does not apply if the employee, prior to recruitment, knew that the employer made membership of an association or of a specific association a condition for being employed with the enterprise.
3. Subsection 1 is furthermore not applicable when the employee, who is a member of an association, subsequent to the employment is informed that membership is a condition for continued employment with the enterprise.
Sections 1 and 2 of the Act do not apply to employees who are employed by employers whose business specifically aims at furthering a political, ideological, religious or cultural purpose and the membership of the person concerned must be considered of importance for the business.
Where an employee is dismissed contrary to the provisions of this Act, the dismissal must be overruled and the employment continued or restored, if so claimed. However, this does not apply to employees in the private sector if, in special cases and following a balancing of the interest of the parties, it is found obviously unreasonable to claim continuation or restoration of the employment.
1. Where an employee is dismissed contrary to the provisions of this Act without the dismissal being overruled, the employer shall pay compensation.
2. The compensation, which may not be less than one month’s salary or wages and not exceed 24 months’ salary or wages, must be fixed in view of the period of employment and the circumstances of the case in general. If the employment has lasted for at least two years, such compensation may not be less than three months’ salary or wages.
1. Cases under this Act must be processed as quickly as possible.
2. During the hearing of a case concerning dismissal, the court may order that the dismissal will not become effective until the case has been finally decided by a judgment. The judgment may stipulate that the dismissal will not be stayed in case of an appeal.
The Act on Private Contributions to Political Parties and Disclosure of the Accounts of Political Parties, No. 404 of 13 June 1990 (Lov om private bidrag til politiske partier og offentliggørelse af politiske partiers regnskaber) as amended by Act No. 394 of 14 June 1995 reads in as far as relevant:
Employers’ federations, trade unions and other trade associations whose main objectives are to attend to the economic interests of the trade group to which their members belong shall ensure that any financial contribution to political parties or for party political purposes in general collected as part of partnership fees are collected on a voluntary basis for the individual member.
1. A member, who wish to be exempt from payment of contributions to political parties or for political purposes in general as part of the membership fees shall submit a written declaration to this effect.
2. Once a year the association shall forward to its members a form containing the wording of such declaration. Publishing the form in a members’ journal or a similar publication can fulfil such obligation. The declaration must have the following wording: “I want to be exempt from payment of contributions to political parties or for party political purposes in general as part of my membership fees”
3. The declaration must be forwarded to the auditor of the association. This must appear from the form referred to in subsection 2 hereof. Declarations forwarded to association offices by the members must be re-forwarded to the auditor immediately. The Minister of Justice may lay down further provisions on the layout of the form and auditors’ treatment of declarations received.
4. Information on the persons who are exempt from payment of contributions or who have made a request to this effect may not be subject to any unauthorised disclosure.
Below is a general description of the background of closed shop agreements in the Danish labour market.
The struggle at the end of the 19th century between on the one side employees and their unions (notably what is today called the LO, i.e. the Danish Federation of Trade Unions) and on the other side the employers and their federations (mainly the central organisation DA, i.e. the Danish Employers Confederation) resulted in the so-called September Agreement from 1899 between the LO and the DA. The Agreement laid down five major principles:
1. the right of employees to organise in trade unions;
2. the right of the employers to manage and control work;
3. the right to industrial actions (strike, boycott and lockout) to obtain e.g. a collective agreement;
4. the embargo on industrial action, which means that no strikes are lawful during the term of a collective agreement;
5. the establishment of a special arbitration tribunal to deal with all violations of the September Agreement.
The September Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners. By tradition the Danish legislature plays a minor role as regards governing wages, salaries and employment conditions. Therefore, only to a limited extent does the Danish labour market have legislation, which does not emanate from EU Directives, e.g. the Salaried Employees’ Act (Funktionærloven) and the Danish Holiday Act (Ferieloven). Accordingly, rights imposed by statute in other countries have in Denmark been obtained by agreements between the labour market partners. It is thus characteristic of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individuals), labour law principles and general statutes and rules laid down in pursuance of statutes. More than 80 per cent of all employees in Denmark are union members.
From figures provided by Danish Statistic (Danmarks Statistikbank) and the Ministry of Employment (Beskæftigelsesministeriet), in 2001 the Danish workforce consisted of 2,799,958 persons (inclusive unemployed). Thereof 1,611,715 were employed within the private sector and 937,826 within the public sector.
The Government estimates that nearly 80 per cent of all employees are comprised by collective agreements. The applicant disagrees with this estimation.
The institution of closed shop agreements is of long standing in Denmark. Typically a closed shop agreement states that an employer has undertaken only to hire and employ members of the trade union that is party to the collective agreement concluded by the employer. Closed shop agreements are unlawful in the public sector labour market and they are not concluded in the part of the private sector labour market, which is comprised by the general agreement between the DA and the LO, because DA considers the use of closed shop provisions as an interference with the employers’ managerial right. Thus, closed shop agreements are mainly of importance in collective agreements concluded with unorganised employers.
The precise number of employees covered by closed shop agreements is unknown. However, from figures provided by DA and the Christian Trade Union the Government estimate that between 220,000 and 230,000 wages earners are affected in some way by closed shop agreements, thereby affecting less than 10 per cent of all Danish employees on the labour market. The applicants submits that due to e.g. the fact that closed shop agreements are excluded in the public section labour market, the statistical information provides a misleading picture.
After the general election in Denmark on 20 November 2001 the new Government decided to procure a report on closed shop agreements. The report was submitted in June 2002 (Betænkning nr. 1419, Udvalget om eksklusivbestemmelser) and recommended that closed shop agreement be prohibited.
The preparatory notes to Article 11 of the Convention
The preparatory notes to Article 11 of the Convention (Report of 19 June 1950 of the Conference of Senior Officials, Collected Edition of the “Travaux Préparatoires”, vol. IV, p. 262) state inter alia:
“On account of the difficulties raised by the ‘closed shop system’ in certain countries, the Conference in this connection considered it undesirable to introduce into the Convention a rule under which ‘no one may be compelled to belong to an association’ which features in [Article 20 § 2] of the United Nations Universal Declaration.”
The European Social Charter 1961
Article 5 of the European Social Charter provides for the following “right to organise”:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
In its Conclusions XIV-1 and XV-1 the European Committee of Social Rights found that the Danish Act on Protection against Dismissal due to Association Membership infringes on Article 5 of the Social Charter of the Council of Europe, in so far as an employee can be dismissed if the employee prior to recruitment knew that membership of a certain union was a condition for being employed with the enterprise (Section 2, subsections 2 and 3 of the Act). On this basis the Governmental Committee of the Social Charter in its 14’th (1999) and 15’th report (2000) recommended to the Committee of Ministers that a recommendation in this respect be adopted with regard to Denmark. On 7 February 2001 at the 740’th meeting of the Minister’s Deputies, lacking the majority required, the proposal for the said recommendation was not adopted.
In its Conclusions XVI-1 the European Committee of Social Rights stated inter alia:
“The situation in Denmark is not in conformity with Article 5 of the Charter for the following reasons:
Closed shop clauses are permitted in national law, as illustrated by the decisions of the Danish Supreme Court summarised in the report. Clauses or practices of this kind violate the right to freedom of association.”
Subsequently, in September 2002 the Danish Government informed the Governmental Committee of the European Social Charter of its intentions to introduce a bill prohibiting closed shop agreements. The Governmental Committee therefore decided to await the next assessment by the European Committee of Social Rights.
Conventions no. 87 and 98 under the International Labour Organisation protects inter alia the positive aspects of the freedom of association. As regards the issue of closed shop agreements the International Labour Organisation considers this as a national matter.
The applicants complain that their right to freedom of association, secured under Article 11 of the Convention, has been violated.
Article 11 of the Convention reads in so far as relevant:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others...”
The Government submit that the first applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. In this respect they point out that the applicant received compensation in the amount of DKK 200,000 as a consequence of the wrongful dismissal. Moreover, as to the applicant’s general complaint that the Danish legislation on closed shop agreements falls foul of Article 11 of the Convention, they find that the applicant is not a potential victim since he has every possibility of applying for a job with an employer who has not concluded a closed shop agreement. Therefore, they maintain that this part of the complaint is of such an abstract nature that it amounts to an actio popularis.
In the applicant’s opinion the compensation awarded by the Supreme Court is irrelevant since the existing Danish legislation continuously and directly amount to a substantial and significant restriction of his occupational opportunities. He points out that although it is estimated that approximately 10 per cent of all Danish wage earners are covered by a closed shop agreement this cannot be understood to mean that only one-tenth of the applicant’s potential future jobs in the private sector labour market will be covered by closed shop agreements. The real figure is much higher. Firstly because the public sector labour market is not covered by closed shop agreements, secondly because closed shop agreements are very extensive in the private sector labour market covering unskilled workers, to which the applicant belongs. In this connection the applicant alleges that in several situations, in which he applied for a job, he was sure that he was rejected with reference to the fact that he did not wish to join a certain trade union.
The Court notes that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention may depend on compensation being awarded on the basis of the facts about which he or she complains before the Court (see e.g. Andersen v. Denmark, application no. 12860/87 and Frederiksen and others v. Denmark, application no. 12719/87, both Commission decisions of 3 May 1988) and on condition that the domestic authorities have acknowledged, either expressly or in substance, the alleged infringement of the Convention. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see e.g. the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 32 §§ 69 ff. and Jensen v. Denmark (dec.), no. 48470/99, 20 September 2001).
Moreover, the Court recalls that, whilst Article 33 of the Convention permits a High Contracting Party to refer to the Court "any alleged breach" of the Convention by another High Contracting Party, Article 34 requires that an individual applicant should be able to claim to be actually affected by the measure of which he or she complains. Article 34 may not be used to found an action in the nature of an actio popularis; nor may it form the basis of a claim made in abstracto that a law contravenes the Convention (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33). The Court further observes that the conditions governing individual applications under Article 34 of the Convention are not necessarily the same as the national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, whilst those purposes may sometimes be analogous, they need not always be (ibid., p. 19, § 36). Be that as it may, the Court has held that Article 34 of the Convention enables individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 21, § 42, and the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 13, § 27).
In the present case by judgment of 6 May 1999 the Supreme Court granted the applicant compensation in the amount of DKK 200,000 as it found that the exception prescribed in section 2, subsection 3 of the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982 did not cover the situation, where a closed shop agreement had been concluded subsequent to the employment of the person in question. Accordingly, it found that the dismissal of the applicant had been wrongful, contravening section 2, subsection 1 of the said Act.
The Court notes that before it the applicant has not submitted that the compensation as such was inadequate for the wrongful dismissal.
In these circumstances the Court finds that the Danish Court complied with the conditions put forward by the Convention’s case-law: the applicant did not question the adequacy of the compensation awarded to him by the court, and the latter acknowledged the illegality of the dismissal.
The Court further notes that before the domestic courts the applicant did not request that he be reinstated in his former job, although such a claim may be submitted pursuant to section 4 of the Act on Protection against Dismissal due to Association Membership. The Court notes that according to that section of the Act, continuation or restoring of the employment cannot be complied with if, in special cases and following a balancing of the interests of the parties, such is found obviously unreasonable.
In this respect the Court also recalls that the granting of compensation in some circumstances may constitute an adequate remedy, in particular where it is likely to be the only possible or practical means whereby redress can be given to the individual for the wrong he or she has suffered. In these circumstances the Court is not called upon to address the problem whether under specific conditions a remedy, leading to restitutio in integrum may be required by the Convention (see e.g. the above quoted Commission decisions; Andersen v. Denmark and Frederiksen and others v. Denmark).
In so far as the applicant complains that he is prevented from obtaining a job in the future as a result of the existence of closed shop agreements, the Court notes that the applicant worked as a store man, and that his field of work is categorised as unskilled labour.
Moreover, it reiterates that in Denmark closed shop agreements are unlawful in the public sector labour market and that they are not concluded in the part of the private sector labour market, which is comprised by the general agreement between the DA and the LO. The precise number of employees covered by closed shop agreements is unknown. However, from figures provided by DA and the Christian Trade Union the Government estimate that between 220,000 and 230,000 wages earners are affected in some way by closed shop agreements, thereby affecting less than 10 per cent of all Danish employees on the labour market.
Also, it recalls the applicant’s argument that although it is estimated that approximately 10 per cent of all Danish wage earners are covered by a closed shop agreement this cannot be understood to mean that only one-tenth of the applicant’s potential future jobs in the private sector labour market will be covered by closed shop agreements. However, it notes that the applicant has not submitted any figures or evidence, which could substantiate this allegation.
In these circumstances, and since nothing else in the case, as it has been presented before the Court, indicates that the applicant is continuously and directly running a risk of being prevented from obtaining a job or of being dismissed from a job within his field of work as a consequence of the legality of closed shop agreements within the private sector of the labour market in Denmark, the Court considers that this part of the complaint has the nature of an actio popularis by means of which the applicant seeks a review in abstracto of the contested legislation in the light of the Convention. Accordingly, the Court finds that the applicant cannot claim to be a victim of a violation of Article 11 of the Convention and it follows that his application must be rejected under Article 35 of the Convention.
The Government submit that the second applicant failed to exhaust national remedies as required under Article 35. Also, they maintain that he cannot claim to be a victim within the meaning of Article 34 of the Convention since allegedly due to the abstract nature of his complaint he cannot claim to be a potential victim. Finally, they recall that an applicant may not bring before the Court an actio popularis regarding the Danish legislation on closed shop agreement.
The applicant points out that the Supreme Court by pronouncing three judgments in 1999 and 2000, respectively, firmly established that the Danish legislation on closed shop agreements is consistent with Article 11 of the Convention as it has been interpreted by the Court’s recent case-law.
Also, he recalls that since he accepted, in order to obtain his present job, to become a member of SID at the time of his employment, should he now resign his membership it would according to Danish law constitute an essential violation of his current contract of employment, which again would provide grounds for immediate termination of the employment with far-reaching economical consequences for him and his family.
In these circumstances it cannot be expected that he expose himself to loosing his livelihood in order to have his case tried before the Court.
As to “victim status” the applicant maintains that he does fulfil the requirement set out in Article 34 of the Convention since, again taking his present employment situation into consideration, he is currently directly affected.
In addition thereto, he submits that should he be dismissed from his present job, the Danish legislation on closed shop agreement continuously and directly restricts his occupational opportunities substantially. In this respect he points out that although it is estimated that approximately 10 per cent of all Danish wage earners are covered by a closed shop agreement this cannot be understood to mean that only one-tenth of the applicant’s potential future jobs in the private sector labour market will be covered by closed shop agreements. The real figure is much higher. Firstly, because the public sector labour market is not covered by closed shop agreements, secondly because closed shop agreements are very extensive in the private sector labour market covering the applicant’s field of work. In this connection the applicant claims that in several situations, in which he applied for a job, he was sure that he was rejected with reference to the fact that he did not wish to join a certain trade union.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitration organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies, which are available and sufficient to afford redress in respect of the breaches alleged (see the Yasa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 71; Selmouni v. France [GC], no. 25803/94, §§ 74-75, ECHR 1999-V). However, the obligation to exhaust domestic remedies does not require that remedies be pursued which would have no chance of success (see for example Raif v. Greece, application no. 21782/93, Commission decision of 26 June 1995, D.R. 82, p. 5 and Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001, p. 26).
The Court notes that in three recent cases (including the one relating to the applicant JENSEN in the present case) the Danish Supreme Court decided by judgments of 6 May 1999, 8 June 1999 and 12 May 2000, respectively, on the lawfulness of closed shop agreements in relation to the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982 and in relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was incorporated into Danish law by Act no. 285 of 29 April 1992. It appears from those judgments that according to the interpretation made by the Supreme Court, closed shop agreements as such are not contrary to Article 11 of the Convention as the provision has been interpreted by the Court.
Thus, the national case-law on the legacy of closed shop agreements as such amply illustrates that the applicant’s changes of success, bringing the matter before the domestic courts, are rather illusory.
In these circumstances, the Court finds it unreasonable to expect that the applicant resign his membership of SID, thereby exposing himself to an obvious risk of dismissal, merely in order to comply with a strict appliance of the exhaustion requirement as set out in Article 35 of the Convention.
It follows that the Government’s objection in this respect must be rejected.
As to the remainder of the Government’s objections the Court recalls that Article 34 of the Convention does not provide individuals with any actio popularis for the interpretation of the Convention; nor may it form the basis of a claim made in abstracto that a law contravenes the Convention. Nevertheless, the Court has held that Article 34 entitles individuals to contend that a law in itself violates their rights, without any individual measure of implementation, if they are directly affected by it or run a risk of being directly affected by it (see for instance the Klass and Others v. Germany judgment of 6 September 1976, Series A no. 28, p. 18, § 33 and the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 16, § 31).
The Court will, therefore, examine whether the applicant’s complaint is directly linked with his personal situation.
The applicant is currently employed by an employer requiring his membership of SID due to a closed shop agreement, which compliance with Article 11 of the Convention the applicant contests. According to Danish law, should the applicant resign this membership it would constitute an essential violation of his current contract of employment, which would provide grounds for immediate termination of the employment with far-reaching economical consequences for him and his family.
In these circumstances, the Court finds that the applicant’s complaint is directly connected to his current personal situation to such an extent that his complaint cannot be considered to constitute a claim made in abstracto nor an actio popularis.
Accordingly, the Court finds that the applicant has exhausted national remedies available to him and that he may claim to be a victim of a violation of his right secured under Article 11 of the Convention. It follows that the Government’s objections must be rejected.
The alleged breach of Article 11 of the Convention
The Government maintain that no interference or restriction has taken place with respect to the applicant’s right to freedom of association as protected by Article 11 of the Convention. In this respect they refer to the wording of and the preparatory notes to the said Article. Moreover, although acknowledging that Article 11 of the Convention encompasses a negative right of association to some extent, they maintain that such a right cannot be considered on an equal footing with the positive right. Notably, they submit that it cannot be contrary to Article 11 of the Convention to dismiss a person who does not want to be a member of a particular trade union if the person was aware at the time of engagement that such a requirement was a prerequisite for employment or, with specific reference to the situation described in the Sigurdur Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, if the person at the time of his application for a licence to operate a taxi knew that membership of the association Frami was required by law. Thus, in the opinion of the Government the negative freedom of association, which is protected under Article 11 in relation to labour marked conditions, involves a protection against dismissal, or deprivation of licences, as a consequence of the requirement of membership of a trade union or an employers’ federation only when the requirement arises after the engagement /issue of licence. Therefore, it must still be decisive whether the person in question was aware at the time of engagement/issue of the licence that membership was a condition of employment/issue of the licence.
In the present case, the applicant was fully aware at the time of his engagement that membership of SID was a condition of employment. Accordingly, in the Government’s view, none of the applicant’s rights under Article 11 of the Convention has been violated.
Should the Court find that an interference has taken place the Government maintain that such is justified under Article 11 § 2 as it is prescribed by law, it pursues a legitimate aim, namely the “protection of the rights and freedoms of others“ and that it is necessary in a democratic society.
As to the latter the Government submit on the one hand that closed shop agreements are of limited scope in Danish labour market, less than 10 per cent of the labour market is affected thereby. Moreover, closed shop agreement does not prevent the person in question from working within his profession at all. The Government know of no examples where employees in general have been barred from exercising their profession due to a closed shop agreement within a certain industry or a particular geographical area.
On the other hand, closed shop agreements ensure that an employer does not undermine the collective agreement concluded, by hiring unorganised persons on terms other than those of the collective agreement, a risk existing first of all for unorganised employers. Thus, the government allege, closed shop agreements are crucial and of essential importance to the trade unions and their members as part of the Danish labour market model based on the freedom of contract of strong workers’ and employers’ organisations, which has resulted in a well-organised, stable and flexible labour market, and the Government emphasise that an interference with the freedom of contract in the labour market, including closed shop agreements, would entail the risk of possibly undermining the foundation for a well-balanced and well-functioning system.
Finally, as regards the principle of proportionality, the Government, recalling the wide degree of divergence between the domestic systems in the particular area under consideration, maintain that a wide margin of appreciation should be afforded to the State, thereby taking into account the sensitive character of the social and political issues involved in achieving a proper balance between the competing interest.
The applicant maintains that there has been an interference with his rights as secured under Article 11 of the Convention as it must be interpreted in light of “present-day conditions”.
He maintains that the protection provided under Article 11 of the Convention, notably the negative right to freedom of association, as can be seen from the Court’s latest case-law, constantly has evolved in the accordance with the development of the European labour market in which, he emphasises, closed shop agreement do not generally exist.
He endorses that such an interference has basis in Danish law, however in the applicant’s view the existence of closed shop agreements cannot be justified by any of the legitimate aims listed in Article 11 § 2 or be considered necessary in a democratic society.
In the applicant’s opinion, only very serious considerations can justify compulsory membership of a certain association in a democratic society, and he contends that the Government have failed to prove that such considerations exist.
In this respect, he disputes that setting aside the possibility of maintaining closed shop agreements would have far-reaching consequences for the Danish labour market. No evidence has been adduced of “the Danish model’s” dependency on compulsory membership of a certain professional association as a precondition for obtaining and keeping a job in a company. The fact that closed shop provisions are not found in the public sector, nor as a general rule within businesses organised under the auspices of the Danish Employers’ Confederation confirms this finding.
On the other hand, closed shop agreements are very extensive and their presence is palpable within certain sectors of the Danish labour market, notably the one, to which the applicant belongs.
Finally, the applicant recalls that the freedom of expression enshrined in Articles 9 and 10 of the Convention is closely connected with the freedom of association secured under Article 11 of the Convention. He points out that although he sympathises with the Christian Trade Union, which is not politically affiliated to a specific political party, due to the closed shop agreement concluded between his present employer and SID, he is forced to join the latter, which political views are alien to him.
The Court considers, in the light of the parties’ submissions that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits.
The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant Rasmussen’s complaint that his right to freedom of association, secured under Article 11 of the Convention, has been violated;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
Deputy Registrar President
JENSEN and RASMUSSEN v Denmark. DECISION
JENSEN and RASMUSSEN v Denmark. DECISION