Article 12 - Freedom of assembly and of association
Article 53 - Level of protection
Key facts of the case:
1) 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.
3) 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.
9) 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.”
10) 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.
11) 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.
12) 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.
13) 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.
16) 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).
17) 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.
Outcome of the case:
For these reasons, the Court
1. Holds by twelve votes to five that there has been a violation of Article 11 of the Convention in respect of the applicant Sørensen;
2. Holds by fifteen votes to two that there has been a violation of Article 11 of the Convention in respect of the applicant Rasmussen;
3. Holds by twelve votes to five
(a) that the respondent State is to pay the applicant Sørensen, within three months, the following amounts to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros) in respect of pecuniary damage plus any tax that may be chargeable on this amount;
(ii) EUR 33,698 (thirty-three thousand six hundred and ninety-eight euros) inclusive of value-added tax in respect of costs and expenses incurred in the proceedings before the Court;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Holds by fifteen votes to two
(a) that the respondent State is to pay the applicant Rasmussen, within three months, EUR 37,678 (thirty-seven thousand six hundred and seventy-eight euros) inclusive of value-added tax in respect of costs and expenses incurred in the proceedings before the Court. The sum is to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses unanimously the remainder of both applicants' claims for just satisfaction.
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.