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You are here: BAILII >> Databases >> European Court of Human Rights >> NATIONAL UNION OF BELGIAN POLICE v. BELGIUM - 4464/70 [1975] ECHR 2 (27 October 1975) URL: http://www.bailii.org/eu/cases/ECHR/1975/2.html Cite as: [1975] ECHR 2, (1979) 1 EHRR 578

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In the case of the National Union of Belgian Police,

The European Court of Human Rights, taking its decision in plenary

session in application of Rule 48 of the Rules of Court and composed

of the following judges:

MM. G. BALLADORE PALLIERI, President,

H. MOSLER,

A. VERDROSS,

E. RODENBOURG,

M. ZEKIA,

J. CREMONA,

G. WIARDA,

P. O'DONOGHUE,

Mrs. H. PEDERSEN,

MM. T. VILHJÁLMSSON,

R. RYSSDAL,

W. GANSHOF VAN DER MEERSCH,

Sir Gerald FITZMAURICE,

Mrs. D. BINDSCHEDLER-ROBERT,

and also Mr. M.-A. EISSEN, Registrar and Mr. H. PETZOLD, Deputy

Registrar,

Having deliberated in private on 10 and 12 May and from

29 September to 1 October 1975,

Delivers the following judgment which was adopted on the

last-mentioned date:

PROCEDURE:

1. The case of the National Union of Belgian Police (Syndicat

national de la police belge) was referred to the Court by the European

Commission of Human Rights (hereinafter called "the Commission"). The

case has its origin in an application against the Kingdom of Belgium

lodged with the Commission by the National Union of Belgian Police on

5 March 1970.

2. The Commission's request, to which was attached the report

provided for under Article 31 (art. 31) of the Convention, was

lodged with the registry of the Court on 7 October 1974, within the

period of three months laid down by Articles 32 para. 1 and 47 (art. 32-1,

art. 47). The request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration made by the Kingdom of Belgium

recognising the compulsory jurisdiction of the Court (Article 46)

(art. 46). The purpose of the Commission's request is to obtain a

decision from the Court as to whether or not the facts of the case

disclose, on the part of the Kingdom of Belgium, a violation of the

obligations binding on it under Articles 11 and 14 (art. 11, art. 14)

of the Convention.

3. On 15 October 1974, the President of the Court drew by lot, in the

presence of the Registrar, the names of five of the seven judges

called upon to sit as members of the Chamber,

Mr. W. Ganshof van der Meersch, the elected judge of Belgian

nationality, and Mr. G. Balladore Pallieri, the President of the

Court, being ex officio members under Article 43 (art. 43) of the

Convention and Rule 21 para. 3 (b) of the Rules of the Court respectively.

The five judges chosen were Mr. A. Favre, Mr. G. Wiarda,

Mr. P. O'Donoghue, Mr. T. Vilhjálmsson and Sir Gerald Fitzmaurice

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Mr. Balladore Pallieri assumed the office of President of the Chamber

in accordance with Rule 21 para. 5.

4. The President of the Chamber ascertained, through the Registrar,

the views of the Agent of the Belgian Government (hereinafter called

"the Government") and of the Delegates of the Commission regarding the

procedure to be followed. By an Order of 30 October 1974, the

President of the Chamber decided that the Government should file a

memorial within a time-limit expiring on 31 January 1975 and that the

Delegates should be entitled to file a memorial in reply within two

months of the receipt of the Government's memorial.

The Government's memorial was received at the registry on 29 January,

and that of the Delegates on 25 March 1975.

5. After having consulted, through the Registrar, the Agent of the

Government and the Delegates of the Commission, the President decided

by an Order of 26 March 1975 that the oral hearings should open on

7 May.

6. At a meeting held in private on 12 April 1975 in Paris, the

Chamber decided under Rule 48 to relinquish jurisdiction forthwith in

favour of the plenary Court, "considering that the case raise(d)

serious questions affecting the interpretation of the Convention ...".

On the same day, the President instructed the Registrar to request the

Agent of the Government and the Delegates of the Commission to

communicate certain documents to the Court. These documents were

received at the registry on 18 and 28 April 1975 respectively.

7. After having consulted, through the Registrar, the Agent of the

Government and the Delegates of the Commission, the President of the

Court decided by an Order of 16 April 1975 that the opening of the

oral hearings should be deferred until 8 May.

8. On 7 May 1975, the Court held a preparatory meeting to consider

the oral stage of the procedure. On this occasion the Court decided

proprio motu in pursuance of Rules 38 para. 1 and 48 para. 3 taken

together, that during the oral hearings it would hear, on certain

questions of fact and for the purpose of information,

Mr. Félix Janssens, administrateur délégué and Secretary General of

the applicant union.

9. The oral hearings were held in public at the Human Rights Building

at Strasbourg on 8 and 9 May 1975.

There appeared before the Court:

- for the Government:

Mr. J. NISET, Legal Adviser at the Ministry of Justice,

Agent;

Mr. A. HOUTEKIER, Barrister,

Mr. J. DE MEYER, Professor at the University of Louvain,

Counsel;

Mr. V. CRABBE, Inspector General of Public Services,

Mr. C. DUMORTIER, Principal Adviser at the Ministry of the Interior,

Advisers;

- for the Commission:

Mr. J.E.S. FAWCETT, Principal Delegate,

Mr. J. CUSTERS, Delegate,

Mr. J.M. NELISSEN, who had represented the applicant before the

Commission, assisting the delegates under Rule 29 para. 1, second sentence.

In accordance with its decision of 7 May 1975, the Court heard

Mr. Janssens on the following day. The Court then heard the addresses

and submissions of Mr. Houtekier and Mr. De Meyer for the Government

and of Mr. Fawcett, Mr. Custers and Mr. Nelissen for the Commission,

as well as their replies to questions put by the Court and by several

judges.

10. On 28 May, leave having been granted by the Court, Mr. Janssens

replied in writing to two questions which the Court had put to him on

8 May 1975 when he had not been in a position to supply the necessary

details immediately. His reply was communicated to the Delegates of

the Commission and to the Government and gave rise on the part of the

latter to written observations which were received at the registry on

18 June 1975.

On 22 August 1975, the Secretary to the Commission forwarded to the

Registrar certain comments from the applicant union on those

observations. On 26 August, the Registrar communicated these comments

to the Government which informed him, on 16 September, that it did not

think it necessary to revert to the explanations it had earlier given

to the Court.

AS TO THE FACTS

11. The facts of the case may be summarised as follows:

12. The applicant, the National Union of Belgian Police, has its

headquarters at Brussels-Schaerbeek. The union descends from the

Belgian Police Federation founded in 1922 and changed its name in

1930; in 1939 it was constituted in the form of a non-profit-making

association within the meaning of the Act of 27 June 1921.

Associations of this kind have capacity in civil law.

13. The applicant union is open to all members of the municipal

police, including rural policemen, regardless of rank, but members of

the two State police forces, the criminal police attached to the

prosecuting authorities (police judiciaire près les parquets) and the

gendarmerie, may not at present belong to it. It numbers police

superintendents and deputy superintendents amongst its members.

The list of the applicant union's members deposited on 21 July 1971,

in accordance with law, contained the names of 99 persons; this was

not the whole of its membership but only the "active members", that is

to say, those "who are delegated by the sections to represent them

at the general meeting" and are alone entitled to vote (Article 5 of

the applicant union's articles of association annexed to the

Moniteur belge of 8 July 1960). The applicant union claims to have

had 7,226 paid-up members in 1961 and that their numbers fell to 6,162

in 1971, 6,011 in 1972, 5,896 in 1973 and 5,748 in 1974. It is alleged

by the applicant union that this steep decline of some 20% was due

specially to the trade union consultation policy contested in the

present case. The Government does not dispute the fact of the decline

but does not attribute it to the cause put forward by the applicant.

There being about 12,000 men serving in the municipal police - whose

establishment provides for 13,722 -, at the end of 1974 the applicant

union represented almost half of the members of the force.

14. The municipal police, whose members are classified as municipal

officials, is entrusted both with functions of an administrative and

crime-deterrent character, as well as with criminal-police functions.

In carrying out its administrative and crime-deterrent duties, the

municipal police is directly subject to the municipal authorities and

placed under the orders of the burgomasters; on the other hand, in the

exercise of its criminal-police functions, it is subject solely to the

authority of the State and more especially the judicial authorities

(autorités judiciaires).

The two State police forces are distinct from the municipal police.

The gendarmerie, itself also vested with both administrative police

duties (maintenance of order) and criminal-police duties, can in

addition discharge military duties in certain circumstances and is

organised on military lines. The criminal police attached to the

prosecuting authorities (la police judiciaire près les parquets) has,

for its part, exclusively criminal-police (de police judiciaire)

duties.

The municipal police force amounts to some 13% of municipal staff and

less than 10% of all municipal and provincial staff. At the end of

1974, municipal staff totalled 88,809 officials to which number were

added the staff of municipal social welfare boards (28,999),

inter-communal associations (12,156) and provinces (14,260). The

gendarmerie and criminal police numbered respectively 13,392 and

827 members as of 30 June 1970.

15. Under Article 3 of its articles of association, the aim of the

applicant union is "any activity directly or indirectly relating to

the study, protection, development, improvement and progress of any

matter concerning the rights and occupational interests of the Belgian

police, particularly by means of trade union action."

16. Freedom of association is recognised in Belgium by Article 20 of

the Constitution and is guaranteed in all fields by the Act of

24 May 1921. Furthermore, Belgium is a party to International Labour

Organisation Conventions no. 87 concerning Freedom of Association and

Protection of the Right to Organise (Act of 13 July 1951) and no. 98

concerning the Application of the Principles of the Right to Organise

and to Bargain Collectively (Act of 20 November 1953). These various

provisions safeguard, inter alia, the right freely to form trade

unions, the right to join or not to join them, the right of trade

union members freely to elect trade union representatives and the

right of trade unions freely to organise their administration.

While therefore in Belgian law freedom is the rule for trade unions in

matters of founding, organising, recruitment and propaganda, the same

is not true of consultation of trade unions by public authorities

acting as employers. In order to avoid having to negotiate with an

ever increasing number of parties, the public authorities have in fact

fixed certain criteria for selection based on the idea of

representativeness of trade unions. They have also introduced this

principle in several Acts dealing with relations between employees and

employers in the private sector, for example the Act of 17 July 1957

on the Health and Safety of Workers and the Hygiene of Places of Work

and Working Conditions, the Act of 29 May 1962 setting up a National

Labour Council and the Act of 5 December 1968 on Collective Labour

Agreements and Joint Committees.

17. Apart from a Decree of 26 September 1946 referred to below

(paragraph 19), the first regulation on trade union consultation in

the public sector dates back to a Royal Decree of 20 June 1955

applicable to State officials exclusively. The Royal Decree confines

consultation to organisations having a seat on a "trade union advisory

committee" set up within each ministerial department and a seat in a

"general trade union advisory committee" operating under the aegis of

the Prime Minister. These committees are consulted on all proposals

concerning the status of State officials, organisation of services and

work, safety, health and improvement of places of work.

The representative character of these trade unions is assessed at two

levels, first at the level of the different ministerial departments

and secondly at the level of the State administration as a whole. The

sole criterion for representativeness is the number of members,

determined by elections held in principle every four years. In fact,

the last trade union elections were held in 1959. The elections due

to be held in 1963 were postponed sine die at the request of the large

trade union federations, which had obtained a low percentage of votes

in 1959.

In the case of the criminal police attached to the prosecuting

authorities, the Government has reserved the benefit of consultation

for the organisations which are confined to members of this force

(Royal Decree of 21 February 1956); the Government states that in fact

these organisations are in turn affiliated to the three large Belgian

trade union federations. As regards the gendarmerie,

Section 16 para. 2 of the Act of 14 January 1975 provides that members

of the gendarmerie may join only occupational associations composed

solely of gendarmes. The National Staff Union of the gendarmerie has

been recognised as the sole organisation representing members of the

corps.

18. There are no general regulations governing relations of municipal

and provincial authorities with trade unions. The municipal

authorities are free to set up trade union consultation if they so

wish. Some of them, such as the towns of Antwerp, Charleroi, Mons and

Verviers, have done so and set up commitees - generally organised like

those which operate at national level - on which sit delegates of

certain representative trade union organisations. Otherwise there is

no organised consultation but trade unions may, as everywhere else in

the country, lodge claims or make representations on behalf of a

member without any condition of representativeness.

19. The position proves to be very different as regards relations

between the Ministry of the Interior, which is the supervisory

authority, and the staff of municipalities and provinces.

After a first attempt (a Bill of 1957) had failed, trade union

consultation was introduced at this level by an Act of 27 July 1961.

Prior to that there had been no statutory provisions. A Decree issued

by the Regent on 26 September 1946 had set up a trade union

consultative committee at the Ministry of the Interior. On this

committee there were, amongst others, delegates of the Union of

National Associations of Civil Servants and Municipal Officials,

including the secretary general of the applicant union; but the

Government states that the commitee was of little importance and soon

ceased to meet.

20. Section 9 of the Act of 27 July 1961 reads as follows: "The

general arrangements to be made by the King ... shall be decreed after

consulting representatives of those organisations that best represent

the staff of the provinces and municipalities ... The forms of such

consultation shall be determined by the King."

Under the same section the representative organisations are to be

consulted on the following subjects: staffing, recruitment and

promotion conditions for municipal staff, pecuniary status and salary

scales for the staff of provinces and municipalities, general rules

governing certain allowances and bonuses, rules governing the

adjustment of pay scales and pecuniary status in line with the changes

which have occurred since 1 January 1960 in the pecuniary status of

staff of the ministries, conditions for appointment to the posts of

police superintendent and deputy superintendent and criteria for

up-grading.

21. Consultation is important on two counts. First, the Government

is bound to ask for the opinion of the representative organisations

and, secondly, in the course of consultation it informs the

representative organisations of its proposals in order that they may

make known their opinions before any decision is reached.

The consultation machinery is set in motion for the preparation of

every rule-making instrument - Bill, Royal Decree, ministerial decree

or circular - which relates to the matters listed above. Royal

Decrees and ministerial circulars have been formulated in this way,

usually concerning the entire staff of provinces and municipalities,

but several of them containing measures peculiar to the municipal

police and some valid only for that force.

22. If an organisation is not recognised as representative, it is

barred from the consultation procedure but may nonetheless, inter

alia, submit claims to the supervisory authority, ask to be heard by

it, refer cases to it and make representations on behalf of its

members.

23. The modalities of consultation of trade unions recognised as

representative were first fixed by a Royal Decree of 23 October 1961.

This Decree set up a trade union consultation committee attached to

the Ministry of the Interior, on which the only trade union delegates

were the representatives of the four large trade union federations

listed in the following paragraph (Article 2).

The applicant union applied to the Conseil d'Etat for a declaration of

annulment of the Decree. However, on the day of the hearing,

15 October 1964, the Moniteur belge published a Royal Decree of

12 October 1964 withdrawing the provision which was being challenged.

The case was then removed from the list of the Conseil d'Etat.

24. A Royal Decree of 2 August 1966 re-organised the trade union

consultation in question. While the consultation committee remained,

its membership was radically changed in respect of both the number and

appointment of representatives. The representatives were no longer to

be appointed by specified trade unions but by "the organisations most

representative of the staff of the provinces and municipalities".

Article 2 para. 2 specified what was to be understood by "most

representative":

"Those organisations which are open to all staff of the provinces and

municipalities and which protect such staff's occupational interests

shall be deemed to be the organisations most representative thereof.

Each such organisation shall make itself known by sending to the

Minister of the Interior by registered post, within forty days of

publication of this Decree in the Moniteur belge, a copy of its

articles of association and a list of its officers. The Minister of

the Interior shall verify whether it complies with the conditions

required and shall notify it of his decision."

Four trade unions, of which the first two have since merged, were

recognised as meeting these criteria: the Liberal Union of Civil

Servants; the Liberal Public Services Union (a member of the

Affiliated Belgian Trade Unions); the Affiliated Public Services

Unions, Provincial and Municipal Sector (a member of the Belgian

General Federation of Labour); and the Affiliated Christian Public

Services Unions, Provincial and Municipal Sector (a member of the

Christian Trade Unions).

It is difficult to specify the number of persons affiliated in these

various organisations. Some of the applicant union's members are also

affiliated to one or other of the large federations. The Government

says that two of these federations have 1,500 policemen as members.

At least two of the trade union organisations recognised as

representative have technical committees for the municipal police,

which, as occasion arises, deal with problems particular to this

force.

25. On 22 September 1966, the applicant union asked the Minister of

the Interior to consider it as one of the most representative

organisations of staff of provinces and municipalities for the

purposes of the implementation of the above-mentioned Royal Decree.

By letter of 14 February 1967 the Minister replied as follows: "From

the documents you have submitted it does not appear that your

organisation fulfils the required conditions, namely that it should be

open to all the staff of the provinces and municipalities and protect

such staff's occupational interests".

26. Prior to that, on 25 October 1966, the applicant union had

applied to the Conseil d'Etat for a declaration of annulment of the

Royal Decree of 2 August 1966, alleging that Section 9 of the Act of

27 July 1961 had been contravened. The applicant contended that

Section 9, which was drafted in very wide terms, implied that the

organisations grouping officials by category and without regard for

their opinions should, subject to their being the most representative

organisations, be consulted on an equal footing with the organisations

in which officials joined together according to their political

feelings and without distinction as to their occupations. In the

applicant's view, the preparatory work to Section 9 showed that

consultation should extend to every representative organisation which

protected the occupational interests of staff governed by particular

staff regulations. Claiming that three quarters of the men in the

municipal police belonged to it and that the force had its own

regulations and constituted a corps within the personnel of the

municipalities; the applicant thus maintained that it was

representative in a twofold way, the number of its members as compared

with the number of municipal policemen and the special character of

their functions. In the submission of the applicant, the King had

acted ultra vires in stipulating that the condition "representative"

must be confined to organisations open to the whole of provincial and

municipal staff.

The applicant union did not refer to Articles 11 and 14 (art. 11,

art. 14) of the Convention nor to Article 20 of the Belgian

Constitution. It submitted, however, albeit in a subsidiary way, that

Article 2 para. 2 of the Royal Decree violated the principle of trade

union freedom in that it made it "obligatory" for police officers to

join "political" trade unions.

27. The Minister of the Interior submitted in reply that

Section 9 para. 1 of the Act of 27 July 1961 provided explicitly for

consultation of the organisations most representative of the staff of

the provinces and municipalities. The Minister added that the Conseil

d'Etat, in its opinion no. L 94 38/2, had taken the view that there

was no objection to considering as the most representative

organisations those which "included staff members of all categories".

The Minister inferred from this that the application was ill-founded.

28. The Conseil d'Etat dismissed the application on 6 November 1969.

It held that "while the criterion of number advanced by the applicant

was acceptable when applied to workers in the private sector or even

to civil servants and officials in large government departments

belonging to the same hierarchical structure and subject to the same

regulations, it cannot be accepted in the present case since the

officers concerned belong to widely different categories which have no

link between them, some being governed by separate regulations". It

further considered "that this diversity of categories and regulations

has the effect of making the consultation of organisations

representing staff much more difficult; that, in each category, the

persons concerned will tend to claim as many advantages as possible

for themselves without paying any heed to the implications of measures

on which they are consulted for the position of the other staff

members, whereas the authority has to take such implications into

account; that the consultation of the organisations by the Government

cannot in most cases serve any useful purpose unless it concerns

organisations which comprise staff belonging to all categories and

which therefore have to strike some balance in their claims in order

to protect the interests of all their members". It found "that in

considering the organisations representing the occupational interests

of all staff of the provinces and municipalities to be the

organisations most representative of such staff, the Decree being

challenged is not contrary to the intention of the statute"; "that the

applicant is in error in still maintaining that the contested

provision is contrary to the principle of trade union freedom by

making it obligatory for police officers to join political trade

unions; that in fact the contested provision does not oblige police

officers to join any trade union nor any particular trade union."

The judgment ended with the conclusion "that in the organisation of

public services the King may confine the consultation of occupational

organisations to whichever organisations are the most representative

of the staff as a whole, which procedure has repeatedly been given

statutory confirmation" (translated from Recueil des arrêts et avis du

Conseil d'Etat, 1969, pp. 941-942).

29. In the meantime a Royal Decree of 20 August 1969 had abolished

the committee provided for in the Decree of 2 August 1966, but

preserved consultation of the most representative organisations as

provided in Article 2 para. 2 of the 1966 Decree; since then, such

consultation takes place in writing.

30. An Act of 19 December 1974 re-organised the relations between

public authorities and trade unions of officials in the service of

those authorities. Section I of this Act provides that the system

which the Act establishes may be made applicable by the King - with

certain exceptions one of which concerns the "members of the armed

forces" - not only to the staff "of the administration and other

government departments", particularly of the "services which assist

the judicial authorities (pouvoir judiciaire)", but also to the staff

of the provinces and municipalities including the municipal police.

The Act establishes a procedure of negotiation (Chapter II) and a

procedure of consultation (Chapter III).

For negotiation, the Act provides that the King shall establish three

"general committees" namely, "the Committee for the National Public

Services", "the Committee for Provincial and Local Public Services",

and "the Joint Committee for all Public Services" (Section 3), as well

as "special committees" among which will be committees competent for

"questions relating to the staff" of provincial or municipal services

(Section 4). The King shall determine "the composition and operation"

of these committees (Section 5) on which only "representative ...

organisations" shall sit from the trade union side (Section 6).

Section 7 defines in detail the criteria of representativeness for

each of the three general committees, Section 8 for the special

committees.

Consultation shall take place within "consultation committees" set up

by the King for "services and groups of services comprising not less

than twenty-five officials" (Section 10). Section 12 provides that

"the trade union organisations represented on a special negotiating

committee shall be entitled to appoint delegates to sit on the

consultation committees set up within the competence of that

committee".

There will be negotiations on "the basic regulations" concerning

"staff administration matters", "pecuniary status", "pension schemes",

"relations with trade union organisations", and "the organisation of

the social services"; on "regulations, internal measures, or

directives, of a general nature relating to the subsequent fixing of

staff structures, to working hours or to the organisation of work";

lastly, on Bills concerning any of these various matters (Section 2).

There will be consultation for "decisions determining the staff

structure of the services covered by the consultation committee in

question", "regulations which the King has not specified as basic

regulations", etc. (Section 11).

In its observations of 18 February 1975, the applicant union expressed

the opinion that the present case would "probably become pointless" "if

the Act of 19 December 1974 became applicable to municipal officials".

At hearings of 8 and 9 May 1975, the Government stressed that the

application of the 1974 Act to provincial and municipal staff would

not be an easy matter and would require more time. The Government

consider that it may in any case be inferred from the text and the

preparatory work of the Act that even when it becomes applicable to

such staff it will not change the trade union status in a way

favourable to category-based unions. In its view, the applicant union

will not be entitled to sit on a general or special negotiating

committee.

The applicant accordingly now feels that "it is doubtful wether the

new law will give just satisfaction to the union" and has so informed

the Court through the Commission.

31. In its application lodged with the Commission on 5 March 1970,

the National Union of Belgian Police alleged violation of Articles 11

and 14 of the Convention in conjunction with Article 17 (art. 17+11,

art. 17+14), in that the Belgian authorities refused to recognise

it as a representative organisation, thus debarring it from

the consultation provided for by the Act of 27 July 1961. The union

also claimed damages which it provisionally assessed at

100,000 Belgian francs.

The Commission declared the application admissible by a final decision

of 8 February 1972, after having rejected on 28 May 1971 certain of

the preliminary objections made by the respondent Government.

During the examination of the merits the applicant union confined

itself to relying on Article 11 (art. 11), both on its own and in

conjunction with Article 14 (art. 14+11).

32. In its report of 27 May 1974, the Commission expressed the

opinion:

- unanimously, that the State, whether acting as "legislator" or

"employer", assumes obligations within the scope of Article 11 para. 1

(art. 11-1) of the Convention;

- by eight votes to five, that the right to consultation and, more

generally, freedom to bargain collectively are important and even

essential elements of trade union action falling within the scope of

Article 11 para. 1 (art. 11-1);

- by eight votes to five, that this right to consultation is not

however unlimited, the limit being, in the case of the applicant

union, the existence of an objective criterion for representativeness;

- unanimously, that the regulations at issue on trade union

consultation in Belgium do not constitute a breach of Article 11 para. 1

(art. 11-1) of the Convention;

- unanimously, that the difference in treatment introduced by Belgian

legislation between different categories of unions is justified in the

circumstances of the case and is consistent with Articles 11 and 14

(art. 14+11) of the Convention taken together.

The report contains a separate concurring opinion to which four other

members of the Commission subscribed.

33. The Government made the following final submissions at the oral

hearing on 8 May 1975 in the afternoon:

"May it please the Court:

- in the first place, Article 11 (art. 11) does not apply in the

present case and there is therefore no reason to consider whether

there has been violation of Article 14, taken in conjunction

with Article 11 (art. 14+11);

- alternatively, there has been violation neither of Article 11,

(art. 11), nor of Article 14 in conjunction with Article 11

(art. 14+11)."

AS TO THE LAW

34. The applicant's complaints may be summarised as follows:

The National Union of Belgian Police complains of the Government not

recognising it as one of the most representative organisations that

the Ministry of the Interior is required to consult under the Act of

27 July 1961, which relates to such matters as staff structures,

conditions of recruitment and promotion, pecuniary status and salary

scales of provincial and municipal staff. The applicant union, which

is excluded from this consultation as regards both questions of

interest to all such staff and questions peculiar to the municipal

police, considers that it is put at a disadvantage compared with the

three trade unions open to that staff as a whole, as defined in

Article 2 para. 2 of the Royal Decree of 2 August 1966. The applicant

submits that this provision greatly restricts its field of action,

thereby tending to oblige the members of the municipal police to join

the organisations considered to be "representative" but having a

"political" character incompatible with the "special vocation" of the

police. The applicant union further maintains that the Government

has, on the other hand, agreed to take account of this special

vocation in the case of the two other police forces, wich are subject

to State authority, namely the criminal police attached to the

prosecuting authorities (Royal Decree of 21 February 1956) and the

gendarmerie (letter of 17 March 1972 and subsequently the Act of

14 January 1975).

On these various points, the applicant relies on Article 11

(art. 11) of the Convention, considered both on its own and in

conjunction with Article 14 (art. 14+11).

35. Having come to the conclusion that there was no violation of the

Convention, the Commission referred the case to the Court, emphasising

the importance of the questions that arose therein on the

interpretation and application of those two Articles (art. 11,

art. 14).

36. Having regard to the information at its disposal concerning the

Act of 19 December 1974 and its state of application (paragraph 30

above), the Court considers that there is no call in the present case

to take account of the said Act; moreover, neither the Commission nor

the Government have invited the Court to decide the case on the basis

of this Act.

I. ON THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)

37. Article 11 para. 1 (art. 11-1) of the Convention reads: "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."

38. The majority of the Commission has expressed the opinion that the

essential components of trade union activity, which in its view

include the right to be consulted, come within the scope of the

provision cited above.

The Court notes that while Article 11 para. 1 (art. 11-1) presents trade

union freedom as one form or a special aspect of freedom of

association, the Article (art. 11) does not guarantee any particular

treatment of trade unions, or their members, by the State, such as the

right to be consulted by it. Not only is this latter right not

mentioned in Article 11 para. 1 (art. 11-1), but neither can it be said

that all the Contracting States in general incorporate it in their

national law or practice, or that it is indispensable for the

effective enjoyment of trade union freedom. It is thus not an element

necessarily inherent in a right guaranteed by the Convention, which

distinguishes it from the "right to a court" embodied in Article 6

(art. 6) (Golder judgment of 21 February 1975, Series A no. 18, p. 18,

para. 36).

In addition, trade union matters are dealt with in detail in another

convention, also drawn up within the framework of the Council of

Europe, namely the Social Charter of 18 Octobre 1961. Article 6 para. 1 of

the Charter binds the Contracting States "to promote joint

consultation between workers and employers". The prudence of the

terms used shows that the Charter does not provide for a real right to

consultation. Besides, Article 20 permits a ratifying State not to

accept the undertaking in Article 6 para. 1. Thus it cannot be supposed

that such a right derives by implication from Article 11 para. 1

(art. 11-1) of the 1950 Convention, which incidentally would amount to

admitting that the 1961 Charter took a retrograde step in this domain.

39. The Court does not, however, share the view expressed by the

minority in the Commission who describe the phrase "for the protection

of his interests" as redundant. These words, clearly denoting

purpose, show that the Convention safeguards freedom to protect the

occupational interests of trade union members by trade union action,

the conduct and development of which the Contracting States must both

permit and make possible. In the opinion of the Court, it follows

that the members of a trade union have a right, in order to protect

their interests, that the trade union should be heard. Article 11 para. 1

(art. 11-1) certainly leaves each State a free choice of the

means to be used towards this end. While consultation is one of these

means, there are others. What the Convention requires is that under

national law trade unions should be enabled, in conditions not at

variance with Article 11 (art. 11), to strive for the protection of their

members' interests.

40. No-one disputes the fact that the applicant union can engage in

various kinds of activity vis-à-vis the Government. It is open to it,

for instance, to present claims and to make representations for the

protection of the interests of its members or certain of them. Nor

does the applicant union in any way allege that the steps it takes are

ignored by the Government. In these circumstances, the fact alone that

the Minister of the Interior does not consult the applicant under the

Act of 27 July 1961 does not constitute a breach of Article 11 para. 1

(art. 11-1) considered on its own.

41. As regards the alleged infringement of personal freedom to join

or remain a member of the applicant union, the Court stresses the fact

that every member of the municipal police retains this freedom as of a

right, notwithstanding the Royal Decree of 2 August 1966. It may be

the fact that the steady and appreciable decline in the membership of

the National Union of Belgian Police is to be explained at least in

part, as the applicant maintains, by the disadvantage the applicant is

placed at compared with trade unions enjoying a more favourable

position. It may be the fact too that this state of affairs is

capable of diminishing the usefulness and practical value of belonging

to the applicant union. However, it is brought about by Belgium's

general policy of restricting the number of organisations to be

consulted. This policy is not on its own incompatible with trade union

freedom; the steps taken to implement it escape supervision by the

Court provided that they do not contravene Articles 11 and 14

(art. 14+11) read in conjunction.

42. Having thus found that there is no violation of paragraph 1 of

Article 11 (art. 11-1), the Court is not called upon to have regard to

paragraph 2 (art. 11-2), on which in any case both the Commission and

the Government stated they did not rely.

II. AS TO THE ALLEGED VIOLATION OF ARTICLES 11 AND 14 (art. 11,

art. 14)

43. Article 14 (art. 14) is worded as follows: "The enjoyment of

the rights and freedoms set forth in this Convention shall be secured

without discrimination on any ground such as sex, race, colour,

language, religion, political or other opinion, national or social

origin, association with a national minority, property, birth or other

status."

44. Although the Court has found no violation of Article 11 para. 1

(art. 11-1), it has to be ascertained whether the differences in

treatment complained of by the applicant union contravene Articles 11

and 14 (art. 14+11) taken together. Although Article 14

(art. 14) has no independent existence, it is complementary to the

other normative provisions of the Convention and Protocols: it

safeguards individuals, or groups of individuals, placed in comparable

situations, from all discrimination in the enjoyment of the rights and

freedoms set forth in those provisions. A measure which in itself is

in conformity with the requirements of the Article enshrining the

right or freedom in question may therefore infringe this Article when

read in conjunction with Article 14 (art. 14) for the reason that it

is of a discriminatory nature. It is as though Article 14 (art. 14)

formed an integral part of each of the Articles laying down rights and

freedoms whatever their nature (case relating to certain aspects of

the laws on the use of languages in education in Belgium, judgment of

23 July 1968, Series A no. 6, pp. 33-34, para. 9).

These considerations apply in particular where a right embodied in the

Convention and the corresponding obligation on the part of the State

are not defined precisely, and consequently the State has a wide

choice of the means for making the exercise of the right possible and

effective. As the Court has noted above at paragraph 39,

Article 11 para. 1 (art. 11-1) enunciates a right of this kind.

45. The Court has already found that the applicant is at a

disadvantage compared with certain other trade unions. The

subject-matter of the disadvantage, i.e., consultation, is no doubt

one which in principle is left by Article 11 para. 1 (art. 11-1) to the

discretion of the Contracting States, but it constitutes one of the

modalities of the exercise of a right guaranteed by this provision as

it has been interpreted by the Court at paragraph 39 above, i.e., the

right of the members of a trade union that their union be heard in the

protection of their interests. Belgium has in fact instituted a system

of consultation in its relations with provincial and municipal staff

as well as with its own officials; the State has selected consultation

as one of the means of making possible the conduct and development by

trade unions of collective action in the protection of their members'

occupational interests. Accordingly, Article 14 (art. 14) is

pertinent in the present context.

46. It is not every distinction, however, that amounts to

discrimination. In the judgment cited above, the Court stated that "in

spite of the very general wording of the French version ('sans

distinction aucune'), Article 14 (art. 14) does not forbid every

difference in treatment in the exercise of the rights and freedoms

recognised". Taking care to identify "the criteria which enable a

determination to be made as to whether or not a given difference in

treatment ... contravenes Article 14 (art. 14)", the Court held that

"the principle of equality of treatment is violated if the distinction

has no objective and reasonable justification", and that "the

existence of such a justification must be assessed in relation to the

aim and effects of the measure under consideration, regard being had

to the principles which normally prevail in democratic societies".

The Court went on to point out that "a difference of treatment in the

exercise of a right laid down in the Convention must not only pursue a

legitimate aim: Article 14 (art. 14) is likewise violated when it is

clearly established that there is no reasonable relationship of

proportionality between the means employed and the aim sought to be

realised" (ibid. p. 34, para. 10).

47. It is the duty of the Court to see whether the differences of

treatment at issue have this kind of discriminatory character. In so

doing, the Court "cannot assume the rôle of the competent national

authorities" which "remain free to choose the measures which they

consider appropriate in those matters which are governed by the

Convention"; "review by the Court concerns only the conformity of

these measures with the requirements of Convention" (ibid. p. 35,

para. 10).

48. The applicant union complains of not being a body which must be

consulted by the Ministry of the Interior, like the three trade unions

open to all provincial and municipal staff, on proposals of interest

to the municipal police, no matter whether such proposals concern all

categories of municipal officials or particularly the police.

As the Court has pointed out above, the Royal Decree of 2 August 1966

has in this respect caused inequality of treatment to the prejudice of

the "category-based" organisations such as the applicant union. The

Government has urged that it wished to avoid "trade union anarchy" and

considered it necessary "to ensure a coherent and balanced staff

policy, taking due account of the occupational interests of all

provincial and communal staff". This is a legitimate aim in itself

and the Court has no reason to think that the Government had other and

ill-intentioned designs underlying Article 2 para. 2 of the above Royal

Decree. In particular, there is nothing to show that the authorities

intended to confer on the three large trade union organisations, on

account of their all being politically committed, an exlusive

privilege in the matter; besides, if there existed or were to exist a

trade union organisation without political leanings open to all

provincial and municipal staff and protecting their occupational

interests, the provision at issue would compel the Minister of the

Interior to consult that organisation too.

The applicant union has stated, it is true, that it is hard to see

"how the Government can claim that it is in the general interest to

avoid fragmentation of trade union organisations in matters connected

with the municipal police, when the Government itself has kept

separate the trade union activities of the criminal police and has

recognised a category-based apolitical union as the only organisation

representing members of the gendarmerie". In the Court's opinion,

however, Articles 11 and 14 (art. 11, art. 14) of the Convention do

not oblige Belgium to set up for provincial and municipal staff, and

for the municipal police in particular, a consultation system

analogous to the one in operation for State officials, including

members of the criminal police attached to the prosecuting authorities

and of the gendarmerie.

49. It remains to be seen whether the disadvantages to which members

of the applicant union are put compared with members of the trade

unions consulted under the Act of 27 July 1961 is justified not only

in principle (paragraph 48 above) but also in scope.

The answer seems clear insofar as consultation covers questions of a

general nature which are of interest to all provincial and municipal

staff: in this regard, the measure contained in Article 2 para. 2 of

the Royal Decree of 2 August 1966 is a proper means of attaining the

legitimate aim sought to be realised.

Finally, the Court has examined the question whether discrimination,

contrary to Articles 11 and 14 (art. 14+11) taken together,

results from the further fact of denying the applicant union the right

to be consulted on certain matters which concern the municipal police

alone, for example conditions for appointment as superintendent or

deputy superintendent (Royal Decree of 12 April 1965 and ministerial

circular of 18 May 1965, both published in the Moniteur belge of

21 May 1965). These specific matters represent only a part of the

matters subject to obligatory consultation. Moreover, special

questions may also arise concerning various other categories of

provincial and municipal staff, which, if they were to combine in

category based trade unions, would have no right to consultation

either. It is understandable therefore that the Government has not

felt bound to make exceptions which might have finished by leaving the

rule laid down in Article 2 para. 2 of the Royal Decree of 2 August 1966

devoid of significance. The Court is of the opinion that the uniform

nature of the rule does not justify the conclusion that the Government

has exceeded the limits of its freedoms to lay down the measures it deems

appropriate in its relations with the trade unions. The Court

considers that it has not been clearly established that the

disadvantage suffered by the applicant is excessive in relation to the

legitimate aim pursued by the Government. The principle of

proportionality has therefore not been offended.

III. AS TO THE APPLICATION OF ARTICLE 50 (art. 50)

50. The Court, having thus found that there has been no violation of

the Convention, considers that in the present case the question of the

application of Article 50 (art. 50) of the Convention does not arise.

FOR THESE REASONS, THE COURT,

1. Holds unanimously that there has been no breach of Article 11

(art. 11);

2. Holds by ten votes to four that there has been no breach of

Articles 11 and 14 (art. 14+11) taken together.

Done in English and French, the French text being authentic, at the

Human Rights Building, Strasbourg, this twenty-seventh day of October

one thousand nine hundred and seventy-five.

For the President

Signed: Hermann MOSLER

Vice-President

Signed: Marc-André EISSEN

Registrar

The following separate opinions are annexed to the present judgment in

accordance with Article 51 para. 2 (art. 51-2) of the Convention and

Rule 50 para. 2:

- opinion of Judge Zekia;

- joint opinion of Judges Wiarda, Ganshof van der Meersch

and Bindschedler-Robert;

- opinion of Judge Sir Gerald Fitzmaurice.

Initialled: H. M.

Initialled: M.-A. E.

SEPARATE OPINION OF JUDGE ZEKIA

THE FACTUAL ASPECT OF THE CASE

The facts relating to this case are given in the first part of the

judgment of the Court. I need not recapitulate them. I will confine

myself by referring very briefly to facts which I consider

indispensable for expressing my views on the legal aspect of the case.

THE LEGAL ASPECT

A. Whether Article 11 para. 1 (art. 11-1) of the Convention is violated

The respondent Government, by various royal decrees promulgated in the

years 1946, 1955, 1961, 1964, 1966, 1969 and by an Act of

19 December 1974, conferred the right of consultation, in one form or

another, on the organisations which were open to all staff of the

provinces and municipalities and which for this reason were considered

to have complied with the requirement of being a "most representative"

body.

For trade unions the right of consultation by public authorities on

matters vital to their interests undoubtedly is of importance: (a) the

Government is bound to seek the opinion of the organisation entitled

to be consulted on subjects such as recruitment to the service,

promotion conditions, pay scales, pecuniary and pension rights and so

on; (b) furthermore, the Government makes known to such organisations,

in advance, the decisions intended to be taken on subjects affecting

their interests in one way or another. Organisations therefore are

afforded the opportunity of putting forward their opinion before a

decision material for their interests is finally taken by the

authorities.

The Minister of the Interior, by his letter of 14 February 1967,

refused to acknowledge the applicant union as one entitled to be

consulted by public authorities on matters already referred to, on the

ground that from the documents it had submitted - the constitution and

the articles of association of the applicant union (the National Union

of Belgian Police) - he found that there was no compliance with the

requirements of being open to all the staff of the provinces and

municipalities and thereby protecting the occupational interests of

all such staff.

Does this refusal to confer the right to consultation, in the light of

the facts and the relevant provisions of law, amount to an

infringement of the right "to form and to join trade unions for the

protection of his interests", as provided by Article 11 para. 1

(art. 11-1) of the Convention?

My short-cut approach for an answer is as follows:

The determining factors to be considered are two.

(1) (a) Could the right, sought by the applicant union, for

consultation be regarded as sine qua non for a person having the right

to freedom of association and to form or join trade unions for the

protection of his interests? In other words, whether one can or

cannot conceive of a right referred to above only if it is also

accompanied by the right to consultation.

The answer to this is obviously a negative one.

(b) Let us take the less stringent test. Could a right to be

consulted be regarded as a constituent element of, or as inherent in

and inseparable from, the right to freedom of association and to form

and join a trade union ...?

My answer to this is also in the negative. Taking into account the

wide sphere of operation pertaining to trade union activities, my

answer to the above could not be otherwise.

(2) Ought such a right of consultation to be accepted as of vital

importance for the activities of a trade union within the frame of the

normal concept of a trade union?

I will answer this also in the negative but with a certain amount of

hesitation. In this connection, one has to bear in mind the fact that

organisations of the status of the applicant union have the right to

make their claims to the appropriate authorities and also to be heard

by them on the matters appertaining to their status and interests,

although they are not entitled to any information in advance as to the

measures (executive or administrative) intended to be taken by the

Government or its organs. This to some extent, but not to a full

extent, alleviates the hardship incurred by the denial by the

Government of the right of consultation to the applicant union.

Time may however come, although I am not sure that it has not come,

when the right of consultation, like the right of collective

bargaining, will be taken for granted and considered predominant

within the scope of the normal activities of a trade union. In such

an eventuality the right to be consulted will have to be recognised as

inherently included in Article 11 para. 1 (art. 11-1).

I share the view therefore that there was no violation of

Article 11 para. 1 (art. 11-1) by the respondent Government.

I pass now to the consideration of the second outstanding question

which is by no means an easy one to tackle.

B. Is there a breach of the Convention when Article 11 para. 1

is taken in conjunction with Article 14 (art. 14+11-1)?

In my view, Article 11 para. 1 (art. 11-1) deals with the recognition and

with the conferment of a right to freedom of association including the

right to form and join trade unions for the protection of the would-be

members' interests, whereas Article 14 (art. 14) deals with the

obligation of a State to secure the enjoyment of rights and freedoms

set forth in the Convention, and the right referred to is undoubtedly

one included therein.

The phrase "to secure the enjoyment of the rights and freedoms" (la

jouissance des droits et libertés) refers to the manner in which a

right conferred by other Articles of the Convention is to be

implemented and made use of.

A State is bound to secure without discrimination the enjoyment of

such a right.

The right of a trade union to be consulted by the Government is not,

at any rate expressly, among the rights enumerated in the Convention.

Such right, however, might very well be recognised as an ancillary or

consequential right in the enjoyment of the right embodied in

Article 11 para. 1 (art. 11-1).

Article 11 (art. 11) begins with the words "Everyone has the right

..." The wording itself does away with the necessity of making

provision for non-discrimination. When a right is conferred on

everybody without qualification or limitation, it goes without saying

that it is granted without discrimination on any ground.

The State undertakes under Article 14 (art. 14) not only a mere

recognition of the rights in the Convention without discrimination,

but goes further and assumes responsibility for the way such rights

are to be utilised where the Government takes part directly or

indirectly in the mode of such utilisation.

The enjoyment of a right is different, to my mind, from the

acquisition and the recognition of a right. It is therefore relevant

to consider whether the regulations made by the Belgian Government on

trade union consultation constitute a breach of Article 11 para. 1

taken together with Article 14 (art. 14+11-1).

The judgment of the Court deals in extenso with the relevant facts and

with submissions on legal points advanced by both sides. I need not

reiterate them. It suffices for me here to make certain observations

on certain salient points relating to the issue under consideration.

One has to take into account the "pros and cons" embodied in the

submissions made by both sides.

In the first place, it can hardly be disputed that the right to

consultation conferred on a trade union is a very important one. In

this respect I agree to a great extent, if not to the full extent, with

the Commission's majority opinion expressed in its report of

27 May 1974 (paragraph 76 in fine): "the right to consultation and at

a more general level, the freedom to bargain collectively, are important

and even essential elements of trade union action falling within the

scope of Article 11 para. 1 (art. 11-1)".

Nor can it be disputed that the applicant union is placed at a

disadvantage compared with the status of the other trade unions that

enjoy the right of consultation.

From the above it can easily be deduced that the applicant union has

been treated discriminatorily.

We come now to the crucial point, namely as to whether this treatment

amounts to a discrimination in the enjoyment of the right to form and

join a trade union, within the meaning and scope of Article 14

(art. 14) of the Convention.

Here we may be immensely assisted by the criteria enunciated by this

Court in the Belgian "Linguistic" case. I quote a few extracts from

the said judgment:

"The principle of equality of treatment is violated if the distinction

has no objective and reasonable justification. The existence of such

justification must be assessed in relation to the aim and effects of

the measure under consideration, regard being had to the principles

which normally prevail in democratic societies. A difference of

treatment ... must not only pursue a legitimate aim: Article 14

(art. 14) is likewise violated when it is clearly established that

there is no reasonable relationship of proportionality between the

means employed and the aim sought to be realised."

(Case relating to certain aspects of the laws on the use of languages

in education in Belgium, judgment of 23 July 1968, Series A no. 6,

p. 34, para. 10).

There remains the application of the above criteria to the facts of

this case.

The main reason advanced on behalf of the Government for the refusal

to recognise the right of consultation for the applicant union is the

one indicated by the Minister of the Interior in his letter of

14 February 1967 to which I have already referred. In that letter it

was stated that the articles of association of the applicant union did

not keep the door open, for membership, to all the staff of the

provinces and of municipalities and did not protect the interests of

such staff, the underlying principle of these requirements being the

"most representative" theory adopted as the criterion for acquiring the

right of consultation. In support of the soundness and the necessity

for the adoption of this criterion, we have been told in effect that

if the right of consultation were to be conferred on every trade

union, then the ever increasing number of the trade unions, on the one

hand, and the diversity of their problems touching on their interests,

on the other hand, would render consultation impossible or useless and

the whole thing would result in chaos or anarchy. I must admit that

this is a summary of my impressions from addresses made and documents

submitted on behalf of the Government. My impressions may not be

exact.

The applicant union, on the other hand, maintains that it has a long

history in the service of the country and that the union was descended

from the Belgian Police Federation founded in 1922 and its members in

their twofold capacity are entrusted with important duties. In their

capacity as an administrative police force they deal with matters such

as traffic control, censuses, supervision of building and passports.

In their second capacity they act as criminal police carrying heavy

responsibilities in the investigation of crimes and offences.

The applicant union is of a non-political character. The

non-recognition to the applicant union of the right of consultation,

has adversely and heavily hit the union. From 7,226 in 1961, the

membership of the union dropped to 5,748 in 1974.

Although the members of the applicant union in discharging their

administrative duties come under the supervision of the municipal

authorities, in their capacity as a criminal police force, they are

answerable at national level to the Government. In addition, they

have their own professional secrets which they might have to disclose

to other union members if they were to be affiliated to them for the

purpose of qualifying themselves for the right of consultation.

It has been argued on the part of the Government that the applicant

union was entitled to submit claims and make representations to be

heard on matters relating to the interests of their members. Since

this is the case, one wonders what would be the additional amount of

inconvenience to the Government if the right to consultation were not

withheld from the applicant union. In other words, I am inclined to

the view that the administerial difficulties and the necessity of

restricting and limiting the number of trade unions entitled to the

right of consultation - in any case as far as the applicant union is

concerned - were over-emphasised.

Having considered the case as a whole, I have come to the conclusion

that in the light of the guidelines enunciated by this Court in the

Belgian "Linguistic" case cited already, there was neither reasonable

justification nor reasonable relationship of proportionality in

withholding the right of consultation from the applicant union. It

seems to me therefore that the Belgian Government has violated

Article 14 (art. 14) of the Convention in respect of a right emanating

from Article 11 para. 1 (art. 11-1).

JOINT SEPARATE OPINION OF JUDGES WIARDA, GANSHOF VAN DER MEERSCH AND

BINDSCHEDLER-ROBERT

(Translation)

We agree in general with paragraphs 1 to 48 of the judgment but, to

our regret, we are unable to associate ourselves with the conclusion

in paragraph 49.

The applicant union is the only trade union, in the strict sense of

the term, in which combine members of the Belgian municipal police,

and it comprises a very large proportion of them; as such, it is

representative of this category of officials. Yet the applicant union

is excluded from the benefit of the obligatory consultation provided

for by the Act of 27 July 1961 on the ground that it fails to fulfil

one of the conditions of representativeness defined in

Article 2 para. 2 of the Royal Decree of 2 August 1966, that of being

"open to all staff of the provinces and municipalities".

Is is stated in paragraph 48 of the judgment that the aim sought to be

achieved by Belgium in issuing the regulations at issue - to avoid

"trade union anarchy" and "to ensure a coherent and balanced staff

policy taking due account of the occupational interests of all

provincial and communal staff" - is a legitimate aim in itself. We

share the opinion of the majority of the Court on this point;

nevertheless, the pursuit of the aim in question would in our view not

only not exclude, but even demand, the taking into consideration of

the specific occupational interests of certain categories of

officials. While we accept, like the majority, that the measure

contained in Article 2 para. 2 of the Royal Decree of 2 August 1966

constitutes a proper means of attaining that end insofar as

consultation covers questions of a general nature which are of

interest to all provincial and municipal staff, the same is not true

of matters peculiar to the municipal police.

These matters are both numerous and important. As explained in

paragraph 14 of the judgment, the municipal police combine functions

of two fundamentally different kinds, those of administrative and

crime-deterrent police and those of criminal police; in the exercise

of these different functions the municipal police is subject to

separate authorities. By reason of the very nature of its various

functions, the municipal police is in a position which is basically

different from that of other provincial and municipal staff. It

follows that the occupational interests of the members of the

municipal police do not invariably coincide with those of the other

staff and in some instances are totally disparate. The responsible

authorities are quite aware of this, as they often make regulations

valid solely for the municipal police - for example, the Royal Decree

of 12 April 1965 and ministerial circular of 18 May 1965 on the

qualifications for the post of superintendent or deputy superintendent

(Moniteur belge of 21 May 1965) - or constituting exceptions, as

regards that force, to the rules applicable in general to all

provincial and municipal staff.

For the observance of the obligations binding upon it under

Articles 11 and 14 (art. 14+11) of the Convention, taken in

conjunction, the Government should therefore, in specific matters such

as those, consult the applicant union in which combine the persons

mainly interested. This would not lead to any real danger of "trade

union anarchy". The disadvantage suffered by the members of the

applicant union in the protection of their occupational interests by

reason of the uniform and inflexible character of the criterion laid

down by Article 2 para. 2 of the Royal Decree of 2 August 1966 cannot be

justified; it necessarily entails discrimination compared with the

members of the trade unions which are consulted under the Act

of 27 July 1961.

SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE

I.

1. I agree with the judgment of the Court in the present case that

there has been no infraction of Article 11 (art. 11) of the European

Convention on Human Rights. Nevertheless, my approach to its

interpretation differs in certain important respects from that of the

Court. As regards Article 14 (art. 14) I must differ entirely,

inasmuch as I consider that Article (art. 14) to be totally irrelevant

and inapplicable so soon as it is found - as the Court's judgment does

find - that the right or freedom, the enjoyment of which must not be

subjected to discrimination contrary to Article 14 (art. 14), is not a

right or freedom "set forth" (vide Article 14) (art. 14) in Article 11

(art. 11) or any other provision of the Convention. Thus for me it is

not so much a question of whether, in the present case, there has or

has not been discrimination, as that this question does not arise. If

it did arise for me, I should hold that there had been discrimination

for the same reasons as those stated in the joint separate opinion of

Judges Wiarda, Ganshof van der Meersch and Bindschedler-Robert in this

case.

2. However, before I come to these matters I would like to deal with

certain others of a more general character, raised by the written and

oral arguments of the Commission in the present case - matters which

concern the interpretation and application of the Convention as a

whole.

3. In paragraph 56 of its report in the present case, the Commission

referred to a previous report made by it - in the Golder case (1).

After recalling the views as to the principles of interpretation

applicable to the European Convention which it had expressed in

paragraphs 44-46 of the latter (Golder) report (2), it went on to

quote verbatim the following passage from paragraph 57 of that report,

on which it was stated that "special emphasis" was laid:-

"The overriding function of the Convention is to protect the rights of

individuals and not to lay down as between States mutual obligations

which are to be restrictively interpreted having regard to the

sovereignty of these States. On the contrary the role of the

Convention and the function of its interpretation is to make

protection of the individual effective."

(- "but only", it should at least have been added, "within the limits

of the Convention as such").

_______________

(1) In which the Court pronounced judgment on 21 February 1975.

(2) Report dated 1 June 1973 in relation to Application no. 4451/70

(see Series B no. 16, p. 12 et seq.).

_______________

4. The opinion expressed in the above-quoted passage has been

vigorously developed on behalf of the Commission in two later cases

(3), also, like the present National Union of Belgian Police case,

involving questions of trade union rights arising out of Articles 11

and 14 (art. 11, art. 14) of the Convention, very similar to those in

issue in the present case. Although the Court has not yet pronounced

itself on these other cases, the public oral arguments in respect of

them have been delivered, and the verbatim record of them is available

(4). I can therefore properly comment on them to the extent at least

that they are relevant to the parallel questions at issue in the

present (National Union of Belgian Police) case.

_______________

(3) The Swedish Engine Drivers' Union and Schmidt and

Dahlström cases (Applications nos. 5614/72 and 5589/72, reports of

the Commission of 27 May and 17 July 1974, documents D 64.180 and

D 68.252 (rev.)).

(4) Documents CDH (75) 65 and 66 (hearings of 23, 24 and

25 September 1975).

_______________

5. The passage quoted in paragraph 3 above is obviously correct in

one respect, where it says that it is not the function of the

Convention "to lay down as between States mutual obligations" - that

is to say obligations of the type where performance by each party of

its obligations is conditional on a corresponding performance by the

others. The obligations of the Human Rights Convention are objective

obligations, which each party is independently bound to carry out.

Non-performance could not, in principle, and special circumstances

apart, become excusable merely on the ground of a failure to perform

by another party. However, this in no way disposes of the quite

separate question of whether those obligations are to be construed

liberally or conservatively (terms which I prefer to broad or

extensive on the one hand, and narrow and restrictive on the other).

6. This question of construction I dealt with in some detail in

paragraphs 32-39 (more especially 38 and 39) of the dissenting part of

my separate opinion in the Golder case. The Commission has had an

opportunity in the present (Belgian Police) case to answer the points

I then made, but it has not done so. The passage quoted in

paragraph 3 above contained no answers to them, their essential

feature being that they consisted largely of statements of

incontrovertible fact, not simply opinion. The European Convention on

Human Rights was a Convention of a highly novel character that had

never before been concluded; it did involve the Contracting Parties in

obligations of a kind governments had never previously undertaken, and

concepts which, only twelve years previously perhaps (before 1940),

would have been regarded not only as unthinkable, but as being quite

outside the normal framework of international law - particularly as

regards the revolutionary notion of the right of the individual to

petition in an international forum against his own government; and for

these reasons governments, though they caused the Convention to be

drawn up, were slow to bind themselves to it as actual parties, and

still slower to accept the separately provided for right of

individual petition, as to which they have retained the faculty to

accept it only temporarily, and to free themselves from it in due

course if they so desire. And it is such separate and voluntarily

continued acceptance alone that has given the Court and the Commission

jurisdiction to hear and determine cases of this class - to which the

present one, like the Golder case, belongs.

7. In such circumstances, can it really be contended with any

credibility, as was done in the later arguments before the Court (5),

which I mentioned in paragraph 4 above, that "the whole notion that it

[the Convention] has to be understood in terms of the intention of the

parties in 1949/50 ... is quite unrealsistic"? What would be

unrealistic would be any other view than that, even though what the

parties then intended may not be the sole applicable criterion. But

to pretend that it is not at least one of the most important of the

applicable criteria - that it must even be excluded entirely - this is

what would lack realism and reason.

_______________

(5) See CDH (75) 65, p. 3.

_______________

8. The remark which I have just cited was followed up and stressed by

another, wich I here quote somewhat out of context - a lapse which I

will put right in a moment. It was to this effect, namely that "one

must not be influenced by what governments may have thought they were

achieving or were trying to achieve in 1949 and 1950." (6) Not even

to be "influenced by" is surely to go rather far, since it seems to

suggest that one should actually ignore or take no serious account of

what the governments thought. This is not a tenable view; and with

regard to it I believe it is pertinent to remember that the

functioning of the European Convention, and of its enforcement and

judicial machinery, is watched by non-European Governments who would

be even more hesitant to subscribe to the right of individual petition

than the European governments were in 1949/50 - as is clearly shown by

the continuing lack of any move to introduce a similar concept, or

machinery, into the Universal Covenants of Human Rights. There is a

risk in my opinion that such governments would be seriously deterred

from ever doing so if it appeared that one of the consequences was

liable to be that the limitations which they intended as to the scope

of the relevant covenant or convention may not be respected by the

organs of enforcement.

_______________

(6) Loc. cit., p. 3.

_______________

9. The context of the remark I quoted early in paragraph 8 above was

as follows. The speaker had expressed the view that the European

Convention, "although in form a treaty", was not "a treaty in the

traditional sense" but was really in the nature of a "constitutional

instrument" (the intended inference presumably being that the ordinary

rules of treaty interpretation would not necessarily apply to it).

The speaker went on to point out that the article on interpretation in

the Vienna Convention on the Law of Treaties (Article 31) made no

mention of the intentions of the parties, but rather of the object and

purpose of the treaty. There then followed the passage quoted in

paragraph 8 above, preceded by the words, "therefore, even if it [the

European Convention] is regarded as a treaty, one must not be

influenced by what governments may have thought", etc. This chain of

reasoning calls for the following observations:

(i) The objects and purposes of a treaty are not something that exist

in abstracto: they follow from and are closely bound up with the

intentions of the parties, as expressed in the text of the treaty, or

as properly to be inferred from it, these intentions being the sole

sources of those objects and purposes. Moreover, the Vienna

Convention - even if with certain qualifications - indicates, as the

primary rule, interpretation "in accordance with the ordinary meaning

to be given to the terms of the treaty"; - and as I have previously

had occasion to point out, the real raison d'être of the hallowed rule

of the textual interpretation of a treaty lies precisely in the fact

that the intentions of the parties are supposed to be expressed or

embodied in - or derivable from - the text which they finally draw up,

and may not therefore legitimately be sought elsewhere save in special

circumstances; and a fortiori may certainly not be subsequently

imported under the guise of objects and purposes not thought of at the

time. From these considerations it is therefore clear that the Vienna

Convention implicitly recognises the element of intentions though it

does not in terms mention it.

(ii) I have no quarrel with the view that the European Convention

- like virtually all so-called "law-making" treaties - has a

constitutional aspect, although the considerations summarised in

paragraph 6 above indicated that, even regarded as a constitution, the

Convention should be given a conservative rather than an extensive

interpretation. But what I find it impossible to accept is the

implied suggestion that because the Convention has a constitutional

aspect, the ordinary rules of treaty interpretation can be ignored or

brushed aside in the interests of promoting objects or purposes not

originally intended by the parties. Such a view moreover overlooks

the patent fact that, even in the case of constitutions proper, and even

allowing for certain permissible interpretational differences of

treatment between treaties and constitutions as indicated in

paragraph 32 of the dissenting part of my opinion in the Golder case,

there are rules of interpretation applicable to constitutions, and

these rules have in large measure a character closely analogous to

those of treaty interpretation. Thus national courts will interpret

their national constitutions - or legislative acts made under them -

with reference (inter alia at least) to the intentions of the

legislature, or original framers of the constitution, in the sense at

any rate that interpretations clearly not contemplated by these, or

falling outside the scope of the legislative clause or constitutional

provision concerned, will normally be rejected. Furthermore, at least

in all countries in which there is a basic written constitution, it is

precisely one of the functions of the courts to characterise, as being

"unconstitutional", acts, whether of the executive or of the

legislature, which are considered to be contrary to or not compatible

with the letter or spirit of the constitution, - something which it

would be hardly possible to do without taking due account of the

factor of "intentions".

10. I am not of course suggesting that a Convention such as the Human

Rights Convention should be interpreted in a narrowly restrictive way

- that it should not indeed be given a reasonably liberal construction

that would also take into consideration manifest changes or

developments in the climate of opinion which have occurred since the

Convention was concluded. But this is a different matter, and quite

different from the subservience to policy that seems to have been

advocated in recent argument before the Court, in which the speaker

terminated his remarks by stating: "I conclude by saying that law is

always the instrument of policy". (7) Even allowing for the fact

that this remark is here being quoted out of the immediate context

(see footnote 8), such a conclusion is dangerous unless carefully

qualified, - for if taken literally and generally, it would seem to

justify the excesses of courts of law in the carrying out of the

policies of some of the worst tyrannies in history. In my view the

integrity of the law requires that the courts should apply it neither

as the instrument, nor as the contriver, of policy, but in accordance

with their own professional standards and canons.

_______________

(7) CDH (75) 65, p. 75.

(8) This context was "So this is not a matter of proof that one

interpretation is demonstrably the right one, but I ... believe ...

that the wider interpretation ... gives a more effective use of the

Convention, and particularly Article 11 (art. 11). If I may say so with

respect, the choice is perhaps also [sc. as well as a case of

interpretation] a matter of judicial policy; but I conclude by saying

that law is always the instrument of policy".

_______________

11. I now turn from these general questions of approach, concerning

the interpretation of the Convention as a whole, to that of the

interpretation to be given to the particular provisions material in

the present case - principally Articles 11 and 14 (art. 11,

art. 14).

II.

Article 11 (art. 11)

12. The relevant part of this provision reads:

"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."

I am in general agreement with what the judgment says about

Article 11 (art. 11), except that I share the minority view in the

Commission as regards the phrase "for the protection of his

interests", namely that this is redundant. I would put it this way

that doubtless this phrase plays a useful semantic part in indicating

pro maiore certo what is the main object of the preceding phrase, to

which it is directly attached, viz., "the right to form and to join

trade unions" (for the protection of, etc.) - but that it is in no way

necessary in order to import this notion of protection of interests

into that of the right to form and join trade unions since, according

to the normal concept of a trade union, this right can, in that

context, have little purpose other than the protection of the members'

interests - or, more accurately, must at least comprise that purpose

amongst, possibly, others. Indeed there is even a certain danger in

the express reference in Article 11 (art. 11) to the protection of

interests, and to that alone, for it could well suggest that this is

the only purpose of a trade union, or at least the only trade union

activity that the Convention purports to protect, - which was probably

not the intention. Strictly, the phrase under discussion has a

limiting effect and, if interpreted literally, would involve that the

Convention conferred a right to form and join a trade union if it was

for the protection of the members' interests, but not otherwise.

13. It seems to me however, that since a trade union that did not

have the capacity to protect its members' industrial or professional

interests would serve little or no useful purpose and would be

difficult to reconcile with the normal idea of a trade union, it must

really be regarded as inherent in the freedom to form and join a

union, that the union should, when formed, have this capacity. If

this is correct the phrase, "for the protection of his interests",

while it may make certainty more certain, does not strictly add

anything of substance that would not already be there. In thinking

this, I do not overlook what was said on behalf of the Commission

during the oral hearing in the present case as recorded in the last

paragraph on p. 73 of the final record. (9) But persuasive though

these considerations may be in themselves, the case of a trade union

formed for the protection of its members' interests seems to me, at

least in the present context, to be so very much the usual one as to

render other possibilities unreal.

_______________

(9) CDH (75) 31.

_______________

14. Be these things as they may, the notion of trade union formation

for the protection of its members' interests implies (and here I agree

with the Court's judgment) some definite minimum right of activity for

the union so formed; - and moreover a right of institutional activity,

qua union - for if it still remained the case that only individual

action was open to members, the whole point of association in a trade

union context, which is precisely corporate action, would be lost.

15. In considering what the notion of trade union activity comprises

for purposes of Article 11 (art. 11), it is perhaps more important,

or will at any rate be more fruitful, to enquire what that notion does

not include, as much as what it does. Without going into detail, I

believe the distinction to be made, on the basis of a straightforward

interpretation of Article 11 (art. 11), is that which can broadly be

drawn between, on the one hand, the rights and freedoms of the

individual in forming a union and, following on that formation, the

activities of the union itself, - and, on the other hand, the

obligations of employers, whether in the public or private domain, and

of the State in its capacity as such in relation to those individual

and union rights, freedoms and activities. In my opinion, such

obligations do not in principle extend beyond the obvious

"counterpart" obligations to allow or permit and not interfere with,

impede or prevent the exercise by individuals and unions of those

rights, freedoms and normal activities. (Even here there is an

important qualification to be made which I shall mention in a moment.)

What the obligations of employers, whether in the public or private

sector, or of the State as such, do not, on the basis and wording of

Article 11 (art. 11) include, are such things as consultation (10)

with unions, negotiation with them, the conclusion of agreements,

etc., - still less the granting to the unions or their members of any

specific economic or industrial terms. Whether there is a duty of

another kind for the employers to do one or more of these things, is

another matter, but it is not a legal duty deriving from either the

language of Article 11 (art. 11) or from any reasonable inference to

be drawn from that language.

_______________

(10) It should perhaps be made clear here that the so-called right of

consultation in question in the present case is not the right of the

union to approach the employers of the State, but not right (if any)

of the union to be consulted as a matter of obligation on the

initiative of the employer or the State as such.

_______________

16. It follows from this that I must disagree entirely with the view

expressed at the end of paragraph 69 of the report of the Commission

in the present case, to the effect that the words "freedom of

association" in Article 11 (art. 11) may legitimately be extended to

cover State responsibility in the sphere of labour/management

relations - i.e., of relations between labour and management. This

might perhaps be so in certain very limited particular instances; but

as a general statement of principle it is far too sweeping. Even the

"counterpart" obligation of the employer and of the State, not to

prevent or impede normal trade union activity, which I have already

mentioned, must be subject to at least one important qualification,

- namely that it cannot extend to imposing any duty on the employer or

the State to remain passive in the face of strike or other industrial

action by the union or any of its members whether acting individually

or together. If there is on the one side a right to engage in strike

action and its possible accompaniments, such as picketing etc., (as to

which I make no pronouncement), then this must be balanced on the

other by a right of lock-out, prevention of "sit-ins", withdrawal of

certain financial benefits, etc. The one not only implies, but

entails, the other. This is the principle of "equality of arms" which

is but another facet of the right of self-defence within the limits of

the law - that right which is graphically illustrated through the

irony of the saying, "Cet animal est méchant, quand on l'attaque il se

défend!" Moreover, the principle of action within the law must also

operate both ways. If employers, and the State as such, must conform

to this, so also must trade unions. Article 11 (art. 11), whatever it

may or may not comprise, cannot validate extra-legal activities,

assuming always that the law permits or does not prevent normal trade

union activity in the furtherance of industrial interests so long as

this is peaceful, non-violent and non-coercitive (apart of course from

the natural and inherent pressures resulting or inseparable from the

very fact of strike action and its legitimate concomitants).

17. Even if some of these observations are only obiter dicta in the

actual context of the present case, they serve to re-inforce my

conclusion that the refusal of the Belgian Government to recognise the

National Union of Belgian Police as one of the organisations most

representative of the staff of the provinces and communes for purposes

of consultation did not infringe Article 11 (art. 11) of the

Convention, - indeed I doubt whether that Article as such has any true

application to this type of complaint.

III.

Article 14 (art. 14)

18. The relevant part of this provision reads:

"The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex,

race, colour ..." etc.

I find it difficult to agree with this part of the Court's judgment,

or even to see how the Court manages to arrive at it. In my opinion,

so soon as it is established (as the earlier part of the judgment

does) that Article 11 (art. 11) does not embody any right for trade

unions to be consulted, or any obligation for the authorities to

consult them, Article 14 (art. 14) can have no possible sphere

of application. This is because, according to the plain language of

that Article (art. 14), it is only the "enjoyment of the rights and

freedoms set forth in this Convention" - [my italics] - that is to be

"secured without discrimination". (Here, and before going further, I

would interject that, in what follows, I shall, generally speaking,

take no separate account of the notion of a "freedom" which, in the

context, I regard as being merely another way of describing a right,

or a way of describing another kind of right - since the notion of

freedom to be consulted has no real juridical content - (and see

further footnote 15 below)). To resume, if - as the Court finds - the

right to form and join trade unions for the protection of the members'

interests does not comprise any right for trade unions to be consulted

by the authorities, then a right of consultation is not one of "the

rights and freedoms set forth in this Convention", and the issue of

discrimination becomes irrelevant. No question of the discriminatory

or non-discriminatory application or enjoyment of a right can arise

unless that right itself exists in the first place, to be conceded

whether discriminatorily or not. Otherwise Article 14 (art. 14) has

nothing to bite upon. Where no right at all exists, but only a

certain voluntary practice (of consultation), the practice may be

exercised discriminatorily, but this cannot be a breach of Article 14

(art. 14), which only enjoins non-discrimination in the enjoyment of

"rights and freedoms", not of mere voluntary or discretionary, and

non-binding practices.

19. The view (to the contrary) expressed in paragraph 44 of the

Court's judgment seems to me not only not to answer these points but

to ignore them completely, or at least "by-pass" without coming to

grips with them, although of course they were fully made known to the

Court. I draw attention in particular to the following aspects of the

Court's view:

(i) In the first sub-paragraph of paragraph 44 of the judgment it is

stated (second sentence) that "although Article 14 (art. 14) has

no independent existence (11), it is complementary to the other

normative provisions" of the Convention. The words I have italicised

in this sentence, though not incorrect, are elliptical and slide round

the essential requirement of Article 14 (art. 14) that the "other

normative provisions" concerned should consist of "rights and freedoms

set forth in this Convention", which the right to consultation is not

- nor even implied - as the Court has found. It is also of course

correct to say that Article 14 (art. 14) complements these other

provisions, but (a) it does so only in the manner which I indicate in

paragraphs 23 and 24 below, and (b) it can only complement them if

they exist as independent rights and freedoms - which is not here the

case.

_______________

(11) This is of course correct in substance but not correctly

stated. As a provision Article 14 (art. 14) does have an independent

existence for the purpose stated in paragraphs 23 and 24 below. What

does not, is the obligation not to discriminate, which is tied to and

dependent on the existence of a right or freedom set forth in some

other Article of the Convention.

_______________

(ii) The third sentence of the first sub-paragraph of paragraph 44 of

the judgment starts as follows: "A measure which in itself is in

conformity with the requirements of the Article enshrining the right

or freedom in question ..." But the Court has just found in the

earlier part of its judgment that a right to consultation is not

enshrined in Article 11 (art. 11). This fact therefore, and the Court's

disregard of it, vitiates the whole reasoning and effect of this

sentence, the further words of which I give in footnote 12 below.

_______________

(12) "... may therefore infringe this Article when read in conjunction

with Article 14 (art. 14) for the reason that it is of a discriminatory

nature."

_______________

(iii) The final sentence of the first sub-paragraph 44 of the judgment

adds nothing really, for whatever may be the truth about Article 14

(art. 14), it must be the same whether it stands on its own or is

considered to be separately integrated in each individual Article of

the Convention. But I discuss this further in paragraph 20 below.

(iv) The argument contained in the second sub-paragraph 44 of the

judgment which I also reproduce textually below (footnote 13) equally

fails, and for the same basic reason. The "right embodied in the

Convention", the "right of this kind" - i.e. so embodied - which the

Court "has noted at paragraph 39" as being "enunciated" in Article 11

(art. 11) turns out to be a right for a trade union to "be heard".

But even if Article 11 (art. 11) did enunciate such a right - (in

fact, it is at most implied) - it would not be the right under discussion

in the present case. As indicated in footnote 10 above, the right to

consultation as it has arisen in these proceedings, and in the form

which it takes in the National Union of Belgian Police complaint, is

quite a different thing from a right to be heard - (i.e., if the union

asks to be): it is a right to be consulted on the initiative of the

employer or the State, even if it has not asked to be heard. This is a

vastly different thing. The Belgian Government is not refusing to

hear the applicant union: it is failing to consult it in the way it

does certain other unions. Whether or not the right to be heard is

enshrined by implication in Article 11 (art. 11), the right to be

consulted in the above sense of that term is not - as indeed the Court

has found.

_______________

(13) "These considerations apply in particular where a right embodied

in the Convention and the corresponding obligation on the part of the

State are not defined precisely and consequently the State has a wide

choice of the means for making the exercise of the right possible and

effective. As the Court has noted above at paragraph 39,

Article 11 para. 1 (art. 11-1) enunciates a right of this kind."

_______________

(v) It would seem therefore that all the considerations set out in

paragraph 44 of the judgment must fail, or amount at best to

half-truths that avoid the essential issue that has to be met, but is

not met.

20. Paragraph 44 of the Court's judgment is evidently founded on, or

derived from, the view expressed in the Belgian "Linguistics" case, to

which it refers, and some of the language of which it recalls.

Granted that it may be difficult to depart from conclusions arrived at

in a case that has acquired so much prestige as that one.

Nevertheless, the Court, like all international tribunals, and unlike

some national ones, is not bound by precedent; and if good reasons

arise for doubting whether a particular view previously expressed was

correct, the Court should not hesitate to review the matter. In my

opinion the view expressed in the "Linguistics" case was seriously

incorrect; but before commenting upon it; I will set out the

essential passage concerned, which is referred to, but not quoted, in

paragraph 44 of the Court's judgment. In this passage the Court, as

it was constituted at the date of the "Linguistics" case (merits), and

speaking of "the guarantee laid down in Article 14 (art. 14)

of the Convention", said (paragraph 9 on pp. 33 and 34 of the

judgment) (14):

"While it is true that this guarantee has no independent existence in

the sense that under the terms of Article 14 (art. 14) it relates

solely to 'rights and freedoms set forth in the Convention', a measure

which in itself is in conformity with the requirements of the Article

enshrining the right or freedom in question may however infringe this

Article when read in conjunction with Article 14 (art. 14) for the

reason that it is of a discriminatory nature."

_______________

(14) Judgment of 23 July 1968, Series A no. 6.

_______________

The Court then gave as an example the case of a State which was under

no obligation to set up "a particular kind of educational

establishment" but held that, if nevertheless, the State in fact did

so, it could not "in laying down entrance requirements" apply

discriminatory criteria. It then continued:

"To recall a further example ... Article 6 (art. 6) of the

Convention does not compel States to institute a system of appeal

courts. A State which does set up such courts consequently goes

beyond its obligations under Article 6 (art. 6). However, it would

violate that Article, read in conjunction with Article 14

(art. 14+6), were it to debar certain persons from these remedies

without a legitimate reason while making them available to others in

respect of the same type of [legal] actions.

In such cases there would be a violation of a guaranteed right or

freedom as it is proclaimed by the relevant Article read in

conjunction with Article 14 (art. 14). It is as though the latter

formed an integral part of each of the Articles laying down rights and

freedoms."

The view thus expressed is, in my opinion, not only wrong but

manifestly wrong and, moreover, self-contradictory. The case of a

system of appellate courts is indeed precisely the one I would myself

have selected in order to demonstrate how, and in what way, Article 14

(art. 14) cannot be applicable. Moreover the view (correct in itself)

that Article 14 (art. 14) should be read as integrally incorporated in

each Article of the Convention, "laying down rights and freedoms"

- i.e., in which these are "set forth", can only emphasise that they

must be set forth there before the non-discrimination obligation can

come into play. Yet in one and the same breath the Court says that

there is no obligation for States under Article 6 (art. 6) of the

Convention to establish such a system - which means that the

individual has no right to require it to be established (15), which in

turn means that such right is not, within the terms of Article 14

(art. 14), a right "set forth in this Convention" which again means

that it is not a right in respect of the enjoyment of which

non-discrimination is prescribed by Article 14 (art. 14): there is no

right to be enjoyed (as of right) and hence no prohibition of

discrimination if it is voluntarily accorded by the State.

_______________

(15) As I mentioned earlier the notion of a "freedom" is

virtually meaningless in this context. Anyone is free to call for

anything he pleases, but this is not a juridically significant

situation. It is particularly lacking in sense to talk of a freedom to

call for the setting up of a system of appellate tribunals.

_______________

21. It will be seen, therefore, that in the "Linguistics" case the

Court simply contradicted itself when, on the one hand, it postulated

a case of non-violation of Article 6 (art. 6) because that provision

involved no obligation (and hence no right) as regards setting up a

system of appeals, and then, on the other hand went on to hold that

there could nevertheless be a breach of Article 14 (art. 14) even

though - ex hypothesi on the basis of the first leg of the Court's

finding - the discrimination involved did not relate to any right or

freedom set forth in the Convention - as Article 14 (art. 14)

requires.

22. It should not be necessary to labour such an elementary point,

- but it may all the same be useful if I try to put it in another way.

The passage from the "Linguistic" case which I have been discussing

speaks repeatedly of a violation of some Article of the Convention

(Article 6, Article 11, etc.) "in conjunction" with Article 14

(art. 14+6, art. 14+11). If this is so, there must be a link - but what

is that link? If the matter in respect of which discrimination is

alleged is not one in regard to which some Article of the Convention

provides a right or freedom, there is no basis for any link with

Article 14 (art. 14). There can in such a case be no violation of some

other Article "in conjunction with" Article 14 (art. 14), for the

other Article concerned has been found not to comprise the right or

freedom concerned, while, as the Court correctly found in the

"Linguistics" case, the "guarantee" contemplated by Article 14

(art. 14) "has no independent existence" inasmuch as "it relates solely

to 'rights and freedoms set forth in the Convention'". How then could

the Court hold that there had been a violation of a given Article "in

conjunction with" Article 14 (art. 14)? The addition of two negatives

cannot make a positive. There can be no cumulation where there is

nothing under either Article, taken by itself, to cumulate. One cannot

cumulate rights or freedoms which, under Article 6, Article 11

(art. 6, art. 11), etc., are not provided for, and which under

Article 14 (art. 14), are not independently provided for, but are such

as arise solely in respect of rights or freedoms that some other

Article does provide for. In such a case the necessary link is

absent, because there is no fundament in either Article to which it

can attach. It is not sufficient to show that Article 11 (art. 11) is

an Article that deals in principle or in a general way with trade

union activity, or that the subject-matter of a given dispute lies

within the field of trade union rights or interests. This is what the

Court is relying on in the present case: but it is not enough. To

suffice it is necessary to show that the particular right in dispute

- in this case the right to consultation - is a right conferred by

Article 11 (art. 11) as part of that activity. That is what the Court

has found not to be the case. Hence consultation is not one of the

matters to which Article 14 (art. 14) relates.

23. This analysis can and must be carried further. It is really an

error to speak of a violation of Article 6, Article 11 (art. 6,

art. 11), etc. at all, in the context of Article 14 (art. 14), for the

whole point of the latter Article is that it operates even where there

is no violation of the other Article concerned, provided that this

other Article does confer the right or freedom in the application of

which there is discrimination. That is the real purpose of Article 14

(art. 14). There would usually be no need to invoke that Article

(art. 14) if the other Article concerned was itself being violated,

irrespective of any discrimination. In that event the discrimination

would only add to the offence - it would not create it. Article 14

(art. 14) does not require the violation of a right or freedom for its

operation but merely its existence under another Article of the

Convention; and what it is intended to catch is the case where a right

or freedom required by some other Article is being afforded, but in a

discriminatory manner.

24. The considerations just mentioned equally supply the answer to

those who argue that if the view which I take were correct, Article 14

(art. 14) would serve no useful purpose and would add nothing to such a

provision as Article 6 (art. 6) or Article 11 (art. 11). In fact,

it of course adds a great deal. Supposing, contrary to the view

correctly taken by the Court in the present case, Article 11 (art. 11)

did create a right for trade unions to be consulted by the Government,

then what Article 14 (art. 14) would add to that would be that it

would not suffice simply to afford this right and to honour this

obligation. It would also, and additionally, have to be done in a

non-discriminatory manner. Otherwise, although there might be no

infringement of Article 11 (art. 11), there would be a breach of

Article 14 (art. 14). That is what Article 14 (art. 14) does, though

only if the basic right under Article 11 (art. 11) already exists. In

consequence, given that indispensable condition (but not otherwise),

Article 14 (art. 14) has a quite definite and important sphere of

application and is not in any way rendered a dead letter by the view I

take. Without it, discrimination would be permissible so long as the

right itself was not in principle withheld.

25. To conclude - apart from the separate point considered in my

final paragraph below - it comes to this, that what the Court is

really doing here (and the same is true for the "Linguistics" case) is

to interpret and apply Article 14 (art. 14) as if the words "set

forth in this Convention" did not figure in it at all, and as if the

opening phrase read "The enjoyment of [all] rights and freedoms shall

be secured ..." etc. But this would be (contrary to what was

correctly held in the "Linguistics" case and to the Court's own

statement in the second sentence of the first paragraph of

paragraph 44 of the judgment) to set up that Article (art. 14)

as an independent autonomous provision under which all discrimination

in the general field of human rights would be prohibited. Such a

process may have its attractions, and it may be tempting to follow it.

Yet a natural and creditable distaste for discrimination in any form

cannot justify a conclusion for which no sufficient legal warrant

exists, or can exist. The Court is not a court of ethics but a court

of law.

26. Lest I should overlook it, there is one more category of argument

that has been advanced in favour of the view taken in the Judgment of

the Court - an argument of a wider order, founded on general

principles rather than on the actual language of the Convention.

General principles of law, it may be said, can, where relevant,

properly be applied in the interpretation and application of a treaty

provision, provided that the terms of that provision do not clearly

exclude them. Accordingly, the doctrine suggested was that although

there may be no obligation to do a particular thing at all, yet if it

is done, it must be done in the same manner, and to the same extent,

for all concerned, without penalty or favour. But whether or not any

doctrine of that kind has gained currency in other contexts or for

certain purposes, it cannot be regarded as established in such a way

as to override the clear language of the Convention, which confines

the obligation not to discriminate to cases where the right or freedom

concerned is one of those "set forth in the Convention". In short,

the Convention does exclude the application of this doctrine.

Let us also not forget the relevance of one of the oldest parables of

our civilisation - that of the labourers in the vineyard. When those

who had "borne the heat and burden of the day" complained of being

discriminated against because they were paid no more than was paid to

those engaged towards the end of the day, the Lord of the Vineyard

replied (St. Matthew, cap. 20, vv. 13-15) "Friend, I do thee no wrong

... Take that thine is, and go thy way ... Is it not lawful for me

to do what I will with mine own?" Ethically, this might not be the

last word; but even ethics - let alone law can be stretched too far.

If I choose to help my neighbour tidy up his garden, does this mean

that, either in law or ethics, I must do the same for all the other

residents of the street? Voluntary processes, such as trade union

consultation, cannot be the subject of valid charges of discrimination

contrary to law unless some law makes them so. In the present case

the applicable law is the law of or deriving from the Convention, -

and the Convention neither makes consultation obligatory nor

non-consultation a breach of any of its Articles. How then can the

consultation of some unions but not others, even if that constituted

discrimination, be in any circumstances a breach of a right prescribed

by the Convention - since no right of consultation is prescribed by it

at all?