The Government argued with reference to the above case-law that Article 11 only affords protection against closed-shop agreements if the requirement to join a trade union was imposed after the recruitment of the individual, either because the requirement did not exist at the time of recruitment or because the individual was not informed about it until later. I agree with the majority that such a limitation of the scope of protection of the freedom not to be compelled to join a trade union cannot be deduced from the Court's case-law. It appears from the previous judgments that the Court's examination was limited to the circumstances of the individual cases and it cannot therefore justifiably be concluded that the Court intended to exclude protection of the negative right of association in other cases like, for example, the present ones. Furthermore, I agree with the majority that there are no reasons to make a distinction of principle in terms of the scope of protection guaranteed by Article 11 between pre- and post-entry closed-shop agreements. What matters is whether the criteria which, in the Court's case-law, have been decisive for finding a violation of the negative right of freedom of association apply equally to the circumstances of the present cases. In the judgments mentioned above it was a condition for finding a violation that the applicant had been exposed to a form of treatment which "strikes at the very substance of the freedom of association".
4.
When deciding whether a Contracting State has complied with a positive obligation under the Convention, the Court must examine whether a fair balance has been struck between the competing interests of the individual and the community as a whole, but it has always acknowledged that the Contracting States in achieving such a balance must be granted a certain margin of appreciation. The scope of this margin depends on the Convention issue at stake. The majority rightly stated that in the field of labour-market relations the Court has consistently held that the Contracting States enjoy a wide margin of appreciation (see paragraph 58 of the judgment). However, the majority have modified this established case-law in so far as the margin of appreciation in the field of closed-shop agreements is now considered to be "reduced". As justification for this change, the majority referred to the need in a democracy to achieve "a balance... which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position." In Young, James and Webster, an identical argument was relied upon, but only as a principle to be taken into account when assessing the necessity of interference with the right to freedom of association.
I fail to see how such a principle - however relevant it may be in other contexts - constitutes a convincing argument for increasing the Court's involvement in the assessment of delicate social and political matters such as those at issue in the instant cases. In any event, such a principle is not the only one to be taken into account when determining the scope of the Court's scrutiny in this field. Others may point in the opposite direction. In this connection the majority seem to have overlooked an element which in my opinion should be given importance. Closed-shop agreements like those in the present cases are made between private contracting parties, and obliging the Contracting States to prohibit such agreements in the interests of third persons interferes with the rights of others to freedom of contract. In my view the Court should be careful not to go too far by imposing on Contracting States its own opinion on how such conflicting interests between private individuals should be resolved. This does not mean that I rule out the possibility that interference may, in certain circumstances, be necessary in order to protect an individual's negative right to association, for instance against abuse of a dominant position, but it should only be done where the interests of that person would otherwise be seriously harmed.
5.
The majority found that both applicants were under compulsion to join a trade union against their will as they would otherwise not have been recruited, and that they were individually and substantially affected by the closed-shop agreements because they faced dismissal if they refused to comply with the requirement.
In my opinion the circumstances of the present cases cannot justify this conclusion. It is of course true that the requirement to join a specific trade union constituted a "compulsion" in the sense that the applicants would not have been recruited or would later have been dismissed had they refused to comply with it.
However it is far from being unusual that an individual seeking a job is "compelled" to accept requirements which are contrary to, for example, his personal views or interfere with his private or family life (see mutatis mutandis Dahlab v. Switzerland (dec.) No. 42393/98, 15 February 2001 (requirement for a teacher not to wear a headscarf) and Madsen v. Denmark (dec.) No. 58341/00, 7 November 2002 (requirement to undergo random urine tests for alcohol, drugs or other intoxicating substances)). It is also quite normal that non-compliance with such requirements may lead to dismissal. This does not in itself raise an issue under the Convention - especially if the employment is in the private sector - as the Convention does not grant a right to find a job and the individual is free to seek employment elsewhere.
However, the situation may be different if an individual is compelled to accept interference with freedoms guaranteed by the Convention because he or she would otherwise be exposed to substantial hardship, for example if there are no reasonable prospects of finding a job in his or her line of work without such a requirement or where a change of job would cause considerable inconvenience. Thus in Young, James and Webster, the Court found a violation of Article 11 because the requirement to join a trade union under threat of dismissal involved loss of livelihood for the applicants, some of whom had been employed for long periods before the requirement was introduced. The situation was similar in {Sigurjonsson}, where the applicant risked losing his taxicab licence if he did not comply with the obligation to join Frami. On the other hand, in Sibson the applicant was not faced with a threat of dismissal involving loss of livelihood as he could have been transferred to work at another location for the same employer.
Whether a requirement to join a trade union under threat of dismissal substantially affects an individual must be determined on the basis of the circumstances of a given case. Even if I agree with the majority that the distinction between pre-entry and post-entry agreements is not as such decisive for the scope of protection of Article 11, it is in my opinion reasonable to assume that an individual may more easily be found to be substantially affected where he or she is forced to leave a job because of closed-shop agreements which are perhaps introduced several years after the recruitment, than where an individual is dismissed shortly after recruitment for refusal to join a union even though he or she knew that membership was a condition of recruitment.
6.
The applicant {Sorensen} did not apply for a permanent job but only wanted to be employed as a holiday-relief worker in the summer period until he commenced his university studies. Three weeks after his recruitment he informed his employer that he did not want to become a member of SID and he was dismissed the following day. It is undisputed that he would have had no difficulties in finding another similar job either before accepting the job with FDB or after his dismissal. In these circumstances I fail to see that he suffered any real hardship or for that matter was put in a worse position than the applicant in the Sibson case. To find that this applicant was "substantially affected" would in my opinion strip that requirement of any reasonable content.
The applicant Rasmussen is a gardener by profession. Following a period of unemployment he commenced working in May 1999 at a nursery. He is still employed there. The gardening and horticultural sector is one of those sectors where closed-shop agreements exist. However, it is far from clear to what extent that sector is covered by closed-shop agreements. The Government have submitted an estimate according to which between 39 and 53 per cent of jobs in the sector are covered by such agreements. The applicant does not dispute the figures as such but submits that a distinction should be made between three different kinds of gardener, and that he is only qualified to obtain a job in one line of gardening in which, according to his estimate, the percentage of jobs with closed-shop agreements is higher - probably 80 per cent. However, he has not provided any more precise information in support of this claim. Nor has he provided any information about his personal difficulties in finding a job, in particular as regards the length of time he was unemployed, how many jobs, if any, he applied for before being recruited by his present employer, whether he later tried to find a job not subject to a closed-shop agreement or how many jobs not covered by a closed-shop agreement were available within a reasonable distance of his home. In these circumstances I am unable to accept that this applicant has substantiated that the closed-shop agreements limited his possibilities of finding a job to such an extent that he could be considered to have been substantially affected.
7.
Finding that neither of the applicants was substantially affected by closed-shop agreements, it is not necessary for me to consider whether their personal views and opinions were compromised to such an extent that it struck at the very substance of the freedom of association. Nor do I find it necessary to express an opinion on whether the closed-shop agreements - had the applicants been substantially affected by them - were justified with reference to the fair balance which has to be struck between their interests and the need to ensure that trade unions are permitted to strive for the protection of their members' interests.