CEDH · CASELAW;CLIN;ENG — 31 janvier 2012

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Romania - 2330/09 Judgment 31.1.2012 [Section III] Article 11 Article 11-1 Freedom of association Refusal to register a trade union of church employees: violation [This case was referred to the Grand Chamber on 9 July 2012] Facts – In April 2008 thirty-five clerics and lay members of the Romanian Orthodox Church decided to establish a trade union. The elected president requested the Court of First Instance to grant the union legal personality and enter it in the trade-unions register. The representative of the Archdiocese lodged an objection. The union’s representative reiterated the request, which was supported by the public prosecutor’s office. In May 2008 the court granted the union’s request and ordered its entry in the trade-unions register, thereby granting it legal personality. The Archdiocese appealed against that judgment. In a final judgment of July 2008 the county court allowed the appeal, set aside the first-instance judgment and, on the merits, dismissed the request for the union to be granted legal personality and entered in the trade-unions register. Law – Article 11: The members of the clergy and lay personnel carried out their duties within the Romanian Orthodox Church on the basis of individual employment contracts. Their salaries were paid largely from the State budget and they were covered by the general social-insurance scheme. A relationship based on an employment contract could not be “clericalised” to the point of being exempted from all rules of civil law. Hence, members of the clergy, and to an even greater extent lay employees of the Church, could not be excluded from the scope of protection of Article   11. The refusal to register the applicant union had been based on domestic law. In so far as the refusal had sought to prevent a disparity between the law and practice concerning the establishment of trade unions for Church employees, it had been aimed at protecting public order, which encompassed the freedom and autonomy of religious communities. The civil courts had had jurisdiction to rule on the validity of the request for the trade union to be granted legal personality. The county court had based its refusal on the need to protect Christian Orthodox tradition, its founding dogmas and the rules of canon law governing decision-making, and on the finding that it was not legally possible for members of the clergy to join a trade union since they occupied positions of leadership in their parishes. However, the Court observed that the trade union’s statutes specified that it intended to fully comply with and apply the provisions of the civil legislation and the ecclesiastical rules, including the Statute and canons of the Church. The union’s demands had related exclusively to defending the economic, social and cultural rights and interests of salaried employees of the Church. Hence, recognition of the union would not have undermined the legitimacy of religious beliefs or the means used to express such beliefs. The criteria defining a “pressing social need” were therefore not met in the instant case. The court had not established that the trade union’s programme as set out in its statutes, or the positions adopted by its members, were incompatible with a “democratic society”, still less that they represented a threat to democracy. The reasons given by the County Court to justify the interference had been of a purely religious nature. The court had not examined the repercussions of the employment contract on the employer-employee relationship, the distinction between members of the clergy and lay employees of the Church or the issue whether the ecclesiastical rules prohibiting union membership were compatible with the domestic and international regulations enshrining the right of employees to belong to a trade union. However, these issues had been of particular importance in the present case. As such, they had called for an explicit response and should have been taken into consideration in balancing the interests at stake. The county court had also based its refusal to register the trade union on the provisions of the Orthodox Church’s Statute, which had entered into force in 2008, that is, after the members of the union had taken up their duties within the Church. Although the background to the present case was unusual, particularly on account of the position occupied by the Orthodox faith in the history and tradition of the respondent State, this could not by itself justify the interference, especially since the applicant trade union had in no way sought to challenge that position, and the right of employees of the Orthodox Church to join a trade union had already been recognised on at least two occasions by the domestic courts. While, admittedly, that recognition had pre-dated the entry into force of the Statute of the Orthodox Church, the fact remained that two unions had been set up within the Orthodox clergy without this having been found to be unlawful or incompatible with democracy. In view of those circumstances, the grounds relied on by the county court appeared insufficient to justify the refusal of the applicant trade union’s request for registration. Accordingly, in the absence of a “pressing social need” or of sufficient reasons, a measure as drastic as the refusal to register the applicant union had been disproportionate to the aim pursued and therefore not necessary in a democratic society. Conclusion : violation (five votes to two). Article 41: EUR 10,000 in respect of pecuniary and non-pecuniary damage   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes