PROCEDURE

The case originated in two applications (nos. 52562/99 and 52620/99) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Danish nationals, Mr Morten Sørensen (“the first applicant”) and Mr Ove Rasmussen (“the second applicant”), on 7 October 1999 and 22 September 1999 respectively.

The first applicant, who had been granted legal aid, was represented by Mr J. Paulsen, a lawyer practising in Herning. The second applicant was represented by Mr J.P. Buhl, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr P. Taksøe-Jensen, of the Ministry of Foreign Affairs.

The applicants complained that the existence of closed-shop agreements in Denmark in their respective areas of employment had violated their right to freedom of association, secured by Article 11 of the Convention.

The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). By decisions of 20 March 2003, the applications were declared partly admissible. The applicants and the Government each filed observations on the merits (Rule 59 § 1). In a decision of 25 November 2004, a Chamber constituted within the First Section, composed of Christos Rozakis, President, Peer Lorenzen, Giovanni Bonello, Françoise Tulkens, Nina Vajić, Vladimiro Zagrebelsky and Elisabeth Steiner, judges, and Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected (Article 30 of the Convention and Rule 72).

The composition of the Grand Chamber was fixed in accordance with Article 27 §§ 2 and 3 of the Convention and Rule 24. The President of the Grand Chamber decided to join the applications (Rule 42 § 1). Elisabeth Steiner, who was unable to take part in the deliberations following the hearing, was replaced by Loukis Loucaides, first substitute judge.

The Government, but not the applicants, filed supplementary observations on the merits (Rule 59 § 1).

Third-party comments were received from the Danish Confederation of Trade Unions (Landsorganisationen – LO), which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The applicants replied to those comments (Rule 44 § 5).

A hearing took place in public in the Human Rights Building, Strasbourg, on 22 June 2005 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr P. Taksøe-Jensen, Agent, Ms N. Holst-Christensen, Co-Agent, Mr E. Oest Edelsberg, Ms D. Borgaard, Mr D. Kendal, Ms K. Weber Olsen, Mr J. Rasmussen, Advisers; (b) for the applicants Mr E. Lego Andersen, Mr J. Paulsen, Mr S. Juul, Counsel, Mr J. Mikkelsen, Mr S. Fibiger Olesen, Mr E. Bertelsen, Mr A. Bagge Jørgensen, Advisers. The Court heard addresses by Mr Lego Andersen and Mr Taksøe-Jensen, as well as their replies to questions from judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The first applicant

The first applicant was born in 1975 and lives in Århus, Denmark. In the spring of 1996 he did his national service. Since a few months remained before he could commence studying mathematics and physics at the University of Århus, on 10 May 1996 he applied for a job as a holiday relief worker in a company, FDB Distributionen (“FDB”). For this purpose, he filled in an application form, which contained a pre-printed paragraph stating, among other things: “To obtain the job it is mandatory to be a member of one of the trade unions affiliated to the Danish Confederation of Trade Unions (LO). You will be informed on request of the name of the union.”

In a letter of 20 May 1996, the applicant was offered the job from 3 June until 10 August 1996 and informed that his terms of employment would be regulated by an agreement concluded between FDB and a trade union called SID, which was affiliated to LO, and of which the applicant was obliged to become a member.

From his first payslip on 20 June 1996 the applicant became aware that he was paying a subscription to SID, although he had not applied for membership. Instead, at the time of his appointment he had applied for membership of a trade union called Denmark's Free Trade Union (Danmarks Frie Fagforening). In a letter of 23 June 1996, the applicant informed his employer and the shop steward that he did not want to pay the subscription to SID because he had been told that, as a holiday relief employee, he would not be given full membership of SID.

Consequently, on 24 June 1996, the applicant was dismissed for not satisfying the requirements for obtaining the job as he was not a member of a trade union affiliated to LO.

The applicant, represented by Denmark's Free Trade Union, instituted proceedings before the High Court of Western Denmark (Vestre Landsret) against FDB, requesting that FDB be ordered to acknowledge that his dismissal was unlawful and to pay him compensation. He alleged that section 2(2) of the Protection against Dismissal due to Association Membership Act of 9 June 1982 (Lov om beskyttelse mod afskedigelse på grund af foreningsforhold), as amended on 13 June 1990, violated Article 11 of the Convention as it allowed an employer to require an employee to be a member of a specific association in order to obtain employment. The applicant stated, among other things, that he did not share SID's political views.

On 18 November 1998 the High Court found for FDB, stating as follows: “The High Court finds it established that the applicant was aware that membership of SID was a condition for his employment in the company. Thus, since the applicant did not comply with this requirement the conditions for dismissing him are fulfilled in accordance with section 2, subsection (2), in conjunction with subsection (1), of the Protection against Dismissal due to Association Membership Act. Therefore, the pertinent question is whether the Act in issue, and with it the applicant's dismissal, is at variance with Article 11 of the European Convention on Human Rights, in the light of the interpretation this Article has been given by the European Court of Human Rights in its recent case-law. The Protection against Dismissal due to Association Membership Act was passed by Parliament in 1982 as a result, inter alia, of the British Rail judgment (Young, James and Webster v. the United Kingdom, Series A no. 44) delivered by the European Court of Human Rights in 1981. In this judgment it was established that in certain circumstances Article 11 also secured the negative right to freedom of association. In the assessment of whether, subsequent to the Court's recent case-law, the domestic courts should disregard section 2(2) of the Protection against Dismissal due to Association Membership Act, the starting-point must be taken from the Act of 1992 incorporating the European Convention on Human Rights. According to the preparatory notes, incorporation of the Convention was not intended to change the existing balance between the Danish parliament and the Danish courts. Thus, in the view of the High Court, while taking into account the rights and obligations that may be inferred from the European Convention on Human Rights, Parliament still has considerable discretion when laying down Danish law. In this connection, it is also of importance to note that a decision abolishing or limiting the existing possibility of entering into closed-shop agreements will have far-reaching consequences for the Danish labour market. In support of the applicant's understanding of the scope of Article 11, reference has been made to the Sigurður A. Sigurjόnsson v. Iceland judgment of 1993 and the Gustafsson v. Sweden judgment of 1996. However, in the view of the High Court, an interpretation of these judgments does not establish with the necessary certainty that section 2(2) of the Protection against Dismissal due to Association Membership Act is at variance with Article 11 of the Convention.”

On appeal, the Supreme Court (Højesteret) upheld the High Court's judgment on 8 June 1999. In its reasoning the Supreme Court stated as follows: “The Protection against Dismissal due to Association Membership Act (Law no. 285 of 9 June 1982) was passed notably in order to comply with the negative right to freedom of association to the extent that such an obligation could be established according to the interpretation of Article 11 of the Convention given by the European Court of Human Rights in the Young, James and Webster v. the United Kingdom judgment, Series A no. 44 (British Rail). As stated in the Supreme Court's judgment of 6 May 1999 [see paragraph 21 below], the latest judgments of the European Court of Human Rights provide no grounds for a different assessment of the lawfulness of closed-shop agreements and their consequences from that appearing in the British Rail judgment. In addition, section 2(2), of the Protection against Dismissal due to Association Membership Act of 9 June 1982 raises no doubts as to its compatibility with this judgment.”

B. The second applicant

The second applicant was born in 1959 and lives in Haderslev, Denmark. He is a gardener by profession. He became a member of SID in the mid-1980s, but resigned his membership after a few years as he felt unable to support its political affiliations. Instead, he became a member of the Christian Trade Union (Kristelig Fagforening).

Having been unemployed for a while, he was offered a job at a nursery (Gartneriet i Regnmark I/S) on condition that he became a member of SID as the employer had entered into a closed-shop agreement with that trade union. The applicant commenced the job on 17 May 1999 and rejoined SID, although he still did not agree with its political views.