NATIONAL UNION OF BELGIAN POLICE v. BELGIUM - 4464/70 [1975] ECHR 2 (27 October 1975)

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 (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 (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 (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 (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 (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 (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 (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 (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? BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII