Right to form, to join or not join a trade union
I. GENERAL BACKGROUND AND DOMESTIC LAW A. Closed shops and dismissal from employment In general 13. In essence, a closed shop is an undertaking or workplace in which, as a result of an agreement or arrangement between one or more trade unions and one or more employers or employers ’ associations, employees of a certain class are in practice required to be or become members of a specified union. The employer is not under any legal obligation to consult or obtain the consent of individual employees directly before such an agreement or arrangement is put into effect. Closed shop agreements and arrangements vary considerably in both their form and their content; one distinction that is often drawn is that between the "pre-entry" shop (the employee must join the union before engaged) and the "post-entry" shop (he must join within a reasonable time after being engaged), the latter being more common. In the United Kingdom, the institution of the closed shop is of very long standing. In recent years, closed shop arrangements have become more formalised and the number of employees covered thereby has increased (3.75 million in the 1960 ’ s and 5 million in 1980, approximately). Recent surveys suggest that in many cases the obligation to join a specified union does not extend to existing non-union employees. The law in force until 1971 14. There was no legislation explicitly directed to the practice of the closed shop until 1971. Nevertheless, the courts had since the 1920 ’ s recognised the legitimacy of the trade union object of advancing the union ’ s interests even to the point of enforcing the dismissal, or a ban on the hiring, of non-union employees. However, it was an unlawful conspiracy at common law to pursue a closed shop against individuals beyond the point which the courts regarded as the defence of genuine trade union interests (Huntley v. Thornton [1957] 1 All England Law Reports 234; Morgan v. Fry [1967] 2 All England Law Reports 386). The Royal Commission on Trade Unions and Employers ’ Associations, which reported in 1968, whilst rejecting the possibility of prohibiting the closed shop, considered the question of safeguards for individuals in a closed shop situation. In particular, a majority of that Commission took the view that an existing employee who was dismissed for refusal to join a union following the introduction of a closed shop should be able to succeed against his employer in a complaint of unfair dismissal so long as he could show that he had reasonable grounds for that refusal. 15. Prior to 1971, the rights and liabilities of the parties to a contract of employment were for the most part governed by common law. Leaving aside cases of justified summary dismissal, it was lawful to dismiss an employee, even without cause, provided that he was given due notice. The remedy open to an employee dismissed without due notice was merely to sue for the balance of wages he would have earned during the appropriate notice period; the courts would not order his employer to re-engage him. These principles applied, for example, to dismissals motivated by an employee ’ s joining, or refusing to join, a trade union. The Industrial Relations Act 1971 16. Since 1971, there has been increased Parliamentary intervention in the areas under consideration, and changes of Government have led to changes in the scope and content of the legislation in force. The first major enactment was the Industrial Relations Act 1971 which radically altered the common law position in two respects. 17. In the first place, the 1971 Act conferred on employees (with certain exceptions) the right not to be unfairly dismissed. Dismissal of an employee without cause became unlawful, even if he had been given due notice. An individual who considered that he had been unfairly dismissed could present a complaint to an industrial tribunal; unless the dismissal had been motivated by one or more reasons specified in the Act (for example, qualifications, conduct, redundancy) or some other substantial reason and unless the employer was found to have acted reasonably in treating that or those reasons as a sufficient reason for dismissal, the tribunal could award compensation to the employee or recommend that he be re-engaged. The employee ’ s common law rights were unaffected by the Act, although after 1971 little reliance was placed on them in practice by those entitled to the new right. 18. In the second place, the 1971 Act introduced specific provisions which were designed to make the operation of the majority of closed shops unlawful. In addition to stipulating that pre-entry closed shop agreements were void, the Act, subject to certain exceptions, gave every worker the right to be a member of no trade union or to refuse to be a member of any particular union. In the context of the rules on unfair dismissal and in contrast to the position at common law (see paragraph 15 in fine above), the Act laid down that dismissal motivated by the employee ’ s exercise of, or intention to exercise, that right was be to regarded as unfair. 19. A Green Paper on Trade Union Immunities, published by the British Government in January 1981, states that the 1971 Act "met considerable resistance from trade unions and in practice its closed shop provisions were circumvented by many employers and unions. The closed shop continued much as before". The law in force at the time of the events giving rise to the applicants ’ complaints 20. The industrial Relations Act 1971 was repealed by the Trade Union and Labour Relations Act 1974 ("TULRA"). The provisions of TULRA relevant to the present case came into force on 16 September 1974. 21. The repeal of the Industrial Relations Act 1971 removed from the statute book both the prohibition on closed shops and the employee ’ s right not to belong to a union. However, the law did not fully return to its pre-1971 condition. This was because TULRA maintained the protection against unfair dismissal; since one result of a closed shop is that an individual who declines to join a specified union may have his employment terminated, it was necessary to spell out the precise conditions in which dismissal for this reason was to be regarded as fair. Accordingly, TULRA: (a) set out - by reference to the concept of "union membership agreement", which it defined - the circumstances in which a closed shop situation was to be regarded as existing; (b) laid down the basic rule that, if such a situation existed, the dismissal of an employee for refusal to join a specified union was to be regarded as fair for the purposes of the law on unfair dismissal; (c) provided that, by way of exceptions, such a dismissal was to be regarded as unfair if the employee genuinely objected (i) on grounds of religious belief to being a member of any union whatsoever; or (ii) on any reasonable grounds to being a member of a particular union. 22. The powers of an industrial tribunal under the 1971 Act to award compensation to an unfairly dismissed employee were also re-enacted by TULRA. However, the power to recommend his re-engagement was later replaced, by the Employment Protection Act 1975, by a discretionary power to order reinstatement or re-engagement in certain circumstances (notably, where this was considered "practicable"). It was provided that, if the order were not complied with, the employee should be awarded the normal compensation for unfair dismissal and, in specified cases, an additional sum. 23. TULRA was modified in various respects by the Trade Union and Labour Relations (Amendment) Act 1976 ("the Amendment Act") which came into force on 25 March 1976. In particular, the second of the exceptions mentioned in paragraph 21 (c) above was abolished, so that the action for unfair dismissal remained available only to genuine religious objectors. With the object of achieving greater flexibility, the Amendment Act also modified the concept of "union membership agreement". Subsequent legislative developments 24. The Employment Protection (Consolidation) Act 1978 repealed and re-enacted the then existing provisions concerning unfair dismissal. The 1978 Act was in turn amended, without retroactive effect, by the Employment Act 1980. It remains the basic rule that the dismissal of an employee for refusal to join a specified union in a closed shop situation is to be regarded as fair for the purposes of the law on unfair dismissal. However, with effect from 15 August 1980, this rule became subject to three exceptions whereby such dismissal is to be regarded as unfair if: (a) the employee objects on grounds of conscience or other deeply-held personal conviction to being a member of any or a particular union; or (b) the employee belonged, before the closed shop agreement or arrangement came into effect, to the class of employees covered thereby and has not been a member of a union in accordance therewith; or (c) in the case of a closed shop agreement or arrangement taking effect after 15 August 1980, either it has not been approved by the vote in a ballot of not less than 80% of the employees affected or, although it is so approved, the employee has not since the balloting been a member of a union in accordance therewith. A Code of Practice, issued with the authority of Parliament and coming into effect on 17 December 1980, recommended, inter alia, that closed shop agreements should protect basic individual rights and be applied flexibly and tolerantly and with due regard to the interests of individuals as well as unions and employers. The Code is admissible in evidence, but imposes no legal obligations. 25. The green Paper on Trade Union Immunities (see paragraph 19 above) rehearsed arguments for and against various proposals and indicated that the Government would welcome views on whether further changes in legislation affecting the closed shop were desirable and would be likely to prove effective. B. Other relevant matters concerning trade union membership 26. Since 1971, there has been statutory protection of the right to belong to a trade union. The exact content of the provisions has varied over the years, but their essence is that an employee is entitled to compensation if he is dismissed or penalised for, or deterred or prevented from, being or seeking to become a member or taking part in the activities of a trade union (Industrial Relations Act 1971, section 5; TULRA, Schedule 1, paragraph 6 (4); Employment Protection Act 1975, section 53; Employment Protection (Consolidation) Act 1978, sections 23 and 58). 27. At the end of 1979, there were 477 trade unions in the United Kingdom, with 13.5 million members; in 1980, 108 unions with 12.1 million members, were affiliated to the Trades Union Congress. The Congress adopted in 1 939 a series of morally binding recommendations ("the Bridlington Principles") designed to minimise, and laying down procedures for dealing with, disputes between affiliated unions over membership questions. The current version of the Principles states, inter alia, that dual membership is valid only if the two unions concerned have jointly agreed to it. 28. The Trade Union Act 191 3, as amended, attaches certain conditions to the application by a union of its funds for a number of political objects specified in section 3 (3), without prejudice to the furtherance of any other political objects. In particular, payments for the specified object must be made out of a separate "political fund" and any member of the union has the right to exemption from contributing thereto. A person so exempted may not be placed at any disadvantage as compared with other members, and contribution to the said fund may not be made a condition for admission to the union. PROCEEDINGS BEFORE THE COMMISSION 45. Mr. Young and Mr. James applied to the Commission on 26 July 1976 and Mr. Webster on 18 February 1977; they each made identical complaints, relying on Articles 9, 10, 11 and 13 (art. 9, art. 10, art. 11, art. 13) of the Convention. They submitted that the enforcement of TULRA and the Amendment Act, allowing their dismissal from employment when they objected on reasonable grounds to joining a trade union, interfered with their freedom of thought, conscience, expression and association with others. They further complained that no adequate remedies had been available to them. 46. The application of Mr. Young and Mr. James and that of Mr. Webster were declared admissible by the Commission on 11 July 1977 and 3 March 1978, respectively. In its report of 14 December 1979 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion: - by fourteen votes to three, that there had been a violation of Article 11 (art. 11); - that it was not necessary to deal separately with the issues arising under Articles 9 and 10 (art. 9, art. 10); - by eight votes to two, with two abstentions, that there was no additional breach of Article 13 (art. 13). The report contains four separate opinions. FINAL SUBMISSIONS MADE TO THE COURT 47. At the hearings on 4 March 1981, the Government maintained the submissions set out in their memorial, whereby they had requested the Court: "(I) With regard to Article 11 (art. 11) (i) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 11 (art. 11); alternatively, if the request at (i) should be rejected, then (ii) to decide and declare that the responsibility of the United Kingdom, if any, under the Convention in respect of the termination of the contracts of employment of the three applicants is engaged exclusively by reason of the enactment of the Acts of 1974 and 1976 and is not engaged on the ground that British Rail is an organ of the State or on the ground that the Government of the United Kingdom is to be regarded as the employer of British Rail or of the applicants. (2) With regard to Articles 9 and 10 (art. 9, art. 10) (i) to decide and declare that the provisions of Articles 9 and 10 (art. 9, art. 10) of the Convention are inapplicable in the circumstances of the present cases; alternatively, if the request at (i) should be rejected, then (ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Articles 9 and 10 (art. 9, art. 10) of the Convention. (3) With regard to Article 13 (art. 13) (i) to decide and declare that Article 13 (art. 13) of the Convention has no application in the present cases in that no rights or freedoms set forth in the Convention were involved or affected by reason of the dismissal of the applicants from their employment; alternatively, (ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 13 (art. 13) of the Convention additional to any breach of Article 11 (art. 11) of the Convention." AS TO THE LAW I. PRELIMINARY: RESPONSIBILITY OF THE RESPONDENT STATE 48. Mr. Young, Mr. James and Mr. Webster alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention, in particular read collectively, and of Article 13 (art. 13). Before the substance of the matter is examined, it must be considered whether responsibility can be attributed to the respondent State, the United Kingdom. The Government conceded that, should the Court find that the termination of the applicants ’ contracts of employment constituted a relevant interference with their rights under Article 11 (art. 11) and that that interference could properly be regarded as a direct consequence of TULRA and the Amendment Act, the responsibility of the respondent State would be engaged by virtue of the enactment of that legislation. A similar approach was adopted by the Commission in its report. 49. Under Article 1 (art. 1) of the Convention, each Contracting State "shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention"; hence, if a violation of one of those rights and freedoms is the result of non-observance of that obligation in the enactment of domestic legislation, the responsibility of the State for that violation is engaged. Although the proximate cause of the events giving rise to this case was the 1975 agreement between British Rail and the railway unions, it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained. The responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis. Accordingly, there is no call to examine whether, as the applicants argued, the State might also be responsible on the ground that it should be regarded as employer or that British Rail was under its control. II. THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11) 50. The main issues in this case arise under Article 11 (art. 11), which reads as follows: "1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State." I. THE EXISTENCE OF AN INTERFERENCE WITH AN ARTICLE 11 (art. 11) RIGHT 51. A substantial part of the pleadings before the Court was devoted to the question whether Article 11 (art. 11) guarantees not only freedom of association, including the right to form and to join trade unions, in the positive sense, but also, by implication, a "negative right" not to be compelled to join an association or a union. Whilst the majority of the Commission stated that it was not necessary to determine this issue, the applicants maintained that a "negative right" was clearly implied in the text. The Government, which saw the Commission ’ s conclusion also as in fact recognising at least a limited negative right, submitted that Article 11 (art. 11) did not confer or guarantee any right not to be compelled to join an association. They contended that this right had been deliberately excluded from the Convention and that this was demonstrated by the following passage in the travaux préparatoires : "On account of the difficulties raised by the ‘ closed-shop system ’ in certain countries, the Conference in this connection considered that it was undesirable to introduce into the Convention a rule under which ‘ no one may be compelled to belong to an association ’ which features in [Article 20 par. 2 of] the United Nations Universal Declaration" (Report of 19 June 1950 of the Conference of Senior Officials, Collected Edition of the" Travaux Préparatoires ", vol. IV, p. 262). 52. The Court does not consider it necessary to answer this question on this occasion. The Court recalls, however, that the right to form and to join trade unions is a special aspect of freedom of association (see the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 17, par. 38); it adds that the notion of a freedom implies some measure of freedom of choice as to its exercise. Assuming for the sake of argument that, for the reasons given in the above-cited passage from the travaux préparatoires, a general rule such as that in Article 20 par. 2 of the Universal Declaration of Human Rights was deliberately omitted from, and so cannot be regarded as itself enshrined in, the Convention, it does not follow that the negative aspect of a person ’ s freedom of association falls completely outside the ambit of Article 11 (art. 11) and that each and every compulsion to join a particular trade union is compatible with the intention of that provision. To construe Article 11 (art. 11) as permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom it is designed to guarantee (see, mutatis mutandis, the judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 32, par. 5, the Golder judgment of 21 February 1975, Series A no. 18, p. 19, par. 38, and the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, par. 60). 53. The Court emphasises once again that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, pp. 31-32, par. 88). Accordingly, in the present case, it is not called upon to review the closed shop system as such in relation to the Convention or to express an opinion on every consequence or form of compulsion which it may engender; it will limit its examination to the effects of that system on the applicants. 54. As a consequence of the agreement concluded in 1975 (see paragraph 29 above), the applicants were faced with the dilemma either of joining NUR (in the case of Mr. James) or TSSA or NUR (in the cases of Mr. Young and Mr. Webster) or of losing jobs for which union membership had not been a requirement when they were first engaged and which two of them had held for several years. Each applicant regarded the membership condition introduced by that agreement as an interference with the freedom of association to which he considered that he was entitled; in addition, Mr. Young and Mr. Webster had objections to trade union policies and activities coupled, in the case of Mr. Young, with objections to the political affiliations of the specified unions (see paragraphs 34, 37 and 43 above). As a result of their refusal to yield to what they considered to be unjustified pressure, they received notices terminating their employment. Under the legislation in force at the time (see paragraphs 17 and 20-23 above), their dismissal was "fair" and, hence, could not found a claim for compensation, let alone reinstatement or re-engagement. 55. The situation facing the applicants clearly runs counter to the concept of freedom of association in its negative sense. Assuming that Article 11 (art. 11) does not guarantee the negative aspect of that freedom on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention. However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union. In the Court ’ s opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11 (art. 11). For this reason alone, there has been an interference with that freedom as regards each of the three applicants. 56. Another facet of this case concerns the restriction of the applicants ’ choice as regards the trade unions which they could join of their own volition. An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value (see, mutatis mutandis, the Airey judgment of 9 October 1979, Series A no. 32, p. 12, par. 24). The Government submitted that the relevant legislation (see paragraph 26 above) not only did not restrict but also expressly protected freedom of action or choice in this area; in particular, it would have been open to the applicants to form or to join a trade union in addition to one of the specified unions. The applicants, on the other hand, claimed that this was not the case in practice, since such a step would have been precluded by British Rail ’ s agreement with the railway unions and by the Bridlington Principles (see paragraph 27 above); in their view, joining and taking part in the activities of a competing union would, if attempted, have led to expulsion from one of the specified unions. These submissions were, however, contested by the Government. Be that as it may, such freedom of action or choice as might have been left to the applicants in this respect would not in any way have altered the compulsion to which they were subjected since they would in any event have been dismissed if they had not become members of one of the specified unions. 57. Moreover, notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Articles 9 and 10 (art. 9, art. 10) (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 26, par. 52). Mr. Young and Mr. Webster had objections to trade union policies and activities, coupled, in the case of Mr. Young, with objections to the political affiliations of TSSA and NUR (see paragraphs 34 and 43 above). Mr. James ’ objections were of a different nature, but he too attached importance to freedom of choice and he had reached the conclusion that membership of NUR would be of no advantage to him (see paragraph 37 above). The protection of personal opinion afforded by Articles 9 and 10 (art. 9, art. 10) in the shape of freedom of thought, conscience and religion and of freedom of expression is also one of the purposes of freedom of association as guaranteed by Article 11 (art. 11). Accordingly, it strikes at the very substance of this Article (art. 11) to exert pressure, of the kind applied to the applicants, in order to compel someone to join an association contrary to his convictions. In this further respect, the treatment complained of - in any event as regards Mr. Young and Mr. Webster - constituted an interference with their Article 11 (art. 11) rights. 2. The existence of a justification for the interference found by the Court 58. The Government expressly stated that, should the Court find an interference with a right guaranteed by paragraph 1 of Articles 9, 10 or 11 (art. 9-1, art. 10-1, art. 11-1), they would not seek to argue that such interference was justified under paragraph 2. The Court has nevertheless decided that it should examine this issue of its own motion, certain considerations of relevance in this area being contained in the documents and information with which it has been furnished. 59. An interference with the exercise of an Article 11 (art. 11) right will not be compatible with paragraph 2 (art. 11-2) unless it was "prescribed by law", had an aim or aims that is or are legitimate under that paragraph and was "necessary in a democratic society" for the aforesaid aim or aims (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 29, par. 45). 60. The applicants argued that the restrictions of which they complained met none of these three conditions. The Court does not find it indispensable to determine whether the first two conditions were satisfied, these being issues which were not fully argued before it. It will assume that the interference was "prescribed by law", within the meaning of the Convention (see the above-mentioned Sunday Times judgment, pp. 30-31, par. 46-49), and had the aim, amongst other things, of protecting the "rights and freedoms of others", this being the only of the aims listed in paragraph 2 that might be relevant. 61. In connection with the last point, the Court ’ s attention has been drawn to a number of advantages said to flow from the closed shop system in general, such as the fostering of orderly collective bargaining, leading to greater stability in industrial relations; the avoidance of a proliferation of unions and the resultant trade union anarchy; the counteracting of inequality of bargaining power; meeting the need of some employers to negotiate with a body fully representative of the workforce; satisfying the wish of some trade unionists not to work alongside non-union employees; ensuring that trade union activities do not benefit of those who make no financial contribution thereto. Any comment on these arguments would be out of place in the present case since the closed shop system as such is not under review (see paragraph 53 above). 62. On the other hand, what has to be determined is the "necessity" for the interference complained of: in order to achieve the aims of the unions party to the 1975 agreement with British Rail, was it "necessary in a democratic society" to make lawful the dismissal of the applicants, who were engaged at a time when union membership was not a condition of employment? 63. A number of principles relevant to the assessment of the "necessity" of a given measure have been stated by the Court in its Handyside judgment of 7 December 1976 (Series A no. 24). Firstly, "necessary" in this context does not have the flexibility of such expressions as "useful" or "desirable" (p. 22, par. 48). The fact that British Rail ’ s closed shop agreement may in a general way have produced certain advantages is therefore not of itself conclusive as to the necessity of the interference complained of. Secondly, pluralism, tolerance and broadmindedness are hallmarks of a "democratic society" (p. 23, par. 49). Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Accordingly, the mere fact that the applicants ’ standpoint was adopted by very few of their colleagues is again not conclusive of the issue now before the Court. Thirdly, any restriction imposed on a Convention right must be proportionate to the legitimate aim pursued (p. 23, par. 49). 64. The Court has noted in this connection that a majority of the Royal Commission on Trade Unions and Employers ’ Associations, which reported in 1968, considered that the position of existing employees in a newly-introduced closed shop was one area in which special safeguards were desirable (see paragraph 14 above). Again, recent surveys suggest that, even prior to the entry into force of the Employment Act 1980 (see paragraph 24 above), many closed shop arrangements did not require existing non-union employees to join a specified union (see paragraph 13 above); the Court has not been informed of any special reasons justifying the imposition of such a requirement in the case of British Rail. Besides, according to statistics furnished by the applicants, which were not contested, a substantial majority even of union members themselves disagreed with the proposition that persons refusing to join a union for strong reasons should be dismissed from employment. Finally, in 1975 more than 95 per cent of British Rail employees were already members of NUR, TSSA or ASLEF (see paragraph 31 above). All these factors suggest that the railway unions would in no way have been prevented from striving for the protection of their members ’ interests (see the above-mentioned National Union of Belgian Police judgment, p. 18, par. 39) through the operation of the agreement with British Rail even if the legislation in force had not made it permissible to compel non-union employees having objections like the applicants to join a specified union. 65. Having regard to all the circumstances of the case, the detriment suffered by Mr. Young, Mr. James and Mr. Webster went further than was required to achieve a proper balance between the conflicting interests of those involved and cannot be regarded as proportionate to the aims being pursued. Even making due allowance for a State ’ s "margin of appreciation" (see, inter alia, the above-mentioned Sunday Times judgment, p. 36, par. 59), the Court thus finds that the restrictions complained of were not" necessary in a democratic society", as required by paragraph 2 of Article 11 (art. 11-2). There has accordingly been a violation of Article 11 (art. 11). III. THE ALLEGED VIOLATION OF ARTICLES 9 AND 10 (art. 9, art. 10) 66. The applicants alleged that the treatment of which they complained also gave rise to breaches of Articles 9 and 10 (art. 9, art. 10). This was contested by the Government. Having taken account of these Articles (art. 9, art. 10) in the context of Article 11 (art. 11) (see paragraph 57 above), the Court, like the Commission, does not consider it necessary to determine whether they have been violated in themselves. IV. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 67. Having regard to its decision on Article 11 (art. 11) (see paragraph 65 above), the Court does not consider it necessary to determine whether there has in addition been a violation of Article 13 (art. 13), on which the applicants also relied. V. THE APPLICATION OF ARTICLE 50 (art. 50) 68. Counsel for the applicants indicated that, should the Court find a violation, his clients would seek just satisfaction under Article 50 (art. 50) in respect of material losses, legal costs and allied expenses, non-material damages and the damage, both pecuniary and moral, suffered in being deprived of rights and freedoms guaranteed by the Convention. He did not fully quantify their claims and suggested that this issue might be adjourned for further consideration. The Government confined themselves to observing that the question of the application of Article 50 (art. 50) was not relevant at this stage. 69. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the question should be referred back to the Chamber under Rule 50 par. 4 of the Rules of Court.
Violation of Article 11 of the Convention: Closed shop agreements had to protect individuals’ freedom of thought (see also: Sibson v. the United Kingdom, judgment of 20 April 1993).