Cases nos 6878/75 and 7238/75
62. The applicants alleged a breach of Article 11 (art. 11). (...)
In the applicants’ submission, the obligation to join the Ordre des médecins (see paragraph 21 above) inhibited freedom of association - which implied freedom not to associate - and went beyond the limits of the restrictions permitted under paragraph 2 of Article 11 (art. 11-2); furthermore, so they contended, the very existence of the Ordre had the effect of eliminating freedom of association.
63. In its report, the Commission expressed the unanimous opinion, corresponding in substance to the Government’s contention, that the Ordre, by virtue of its legal nature and specifically public function, was not an association within the meaning of Article 11 par. 1 (art. 11-1).
64. The Court notes firstly that the Belgian Ordre des médecins is a public-law institution. It was founded not by individuals but by the legislature; it remains integrated within the structures of the State and judges are appointed to most of its organs by the Crown. It pursues an aim which is in the general interest, namely the protection of health, by exercising under the relevant legislation a form of public control over the practice of medicine. Within the context of this latter function, the Ordre is required in particular to keep the register of medical practitioners. For the performance of the tasks conferred on it by the Belgian State, it is legally invested with administrative as well as rule-making and disciplinary prerogatives out of the orbit of the ordinary law (prerogatives exorbitantes du droit commun) and, in this capacity, employs processes of a public authority (see paragraphs 20-34 above).
65. Having regard to these various factors taken together, the Ordre cannot be considered as an association within the meaning of Article 11 (art. 11). However, there is a further requirement: if there is not to be a violation, the setting up of the Ordre by the Belgian State must not prevent practitioners from forming together or joining professional associations. Totalitarian régimes have resorted - and resort - to the compulsory regimentation of the professions by means of closed and exclusive organisations taking the place of the professional associations and the traditional trade unions. The authors of the Convention intended to prevent such abuses (see the Collected Edition of the "Travaux Préparatoires)), vol. II, pp. 116-118).
The Court notes that in Belgium there are several associations formed to protect the professional interests of medical practitioners and which they are completely free to join or not (see paragraph 22 above). In these circumstances, the existence of the Ordre and its attendant consequence - that is to say, the obligation on practitioners to be entered on the register of the Ordre and to be subject to the authority of its organs - clearly have neither the object nor the effect of limiting, even less suppressing, the right guaranteed by Article 11 par. 1 (art. 11-1).
66. There being no interference with the freedom safeguarded by paragraph 1 of Article 11 (art. 11-1), there is no reason to examine the case under paragraph 2 (art. 11-2) or to determine whether the Convention recognises the freedom not to associate.back