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Entities to which International Guarantees Apply

Popov and Others, Vakarelova, Markov and Bankov (decision), 6 November 2003 [ECtHR]

 

Cases nos 48047/99, 48961/99


2.  All applicants complained under Article 11 of the Convention that their negative freedom of association had been infringed in that they were required to become members of the BDU or stop practising their profession. (...)
The first question the Court has to determine is whether the BDU and the UDB are associations for the purposes of Article 11 of the Convention and whether their establishment prevents medical doctors and dentists from forming or joining professional associations (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, pp. 26‑27, §§ 62‑66).

The applicants submitted that the BDU and the UDB were private‑law associations falling within the scope of Article 11 of the Convention. They conceded that the two organisations were endowed with certain public‑law functions, such as enforcing the professional rules of conduct and of keeping the register of medical doctors and dentists. However, in the applicants’ view, the BDU and the UDB also performed other functions which were characteristic of trade unions: to protect their members’ professional rights and interests and, more importantly, to represent their members as parties to the National Framework Agreement with the National Health Security Fund. The applicants maintained that the National Framework Agreement resembled a collective bargaining agreement setting forth the terms and conditions under which hospitals, medical doctors and dentists who had concluded individual contracts with the local branches of the Fund would operate. In particular, the Agreement laid down the remuneration they would receive for the medical services they provide and the quantity, quality and manner of dispensing these services. It was true that medical doctors and dentists were not obliged to enter into individual contracts with the local branches of the Fund. However, in view of the fact that all Bulgarian citizens and residing foreigners were subject to health coverage by the system of health security, almost all medical doctors and dentists would in practice be obliged to enter into such contracts and thus be bound in their daily work by the terms and conditions of the National Framework Agreement, negotiated and concluded between the National Health Security Fund and the BDU and the UDB.

As regards the possibility to form and participate in other trade unions, the applicants argued that, while in theory there was no impediment for them to do so under Bulgarian law, in practice such a move would be futile. In particular, it was only the BDU and the UDB that were authorised to negotiate the National Framework Agreement with the National Health Security Fund. If a trade union was to operate effectively, it would have to be able to participate in these negotiations; otherwise its existence would be purely formal.

The Court starts by noting that the Convention organs have consistently held that the regulatory bodies of the liberal professions are not associations within the meaning of Article 11 of the Convention (see Le Compte, Van Leuven and De Meyere, cited above, pp. 26‑27, §§ 64‑65, as regards the Belgian Ordre des médecins; Revert and Legallais v. France, nos. 14331/88 and 14332/88, Commission decision of 8 September 1989, Decisions and Reports (DR) 62, p. 309, as regards the French Ordre des architectes; A. and Others v. Spain, no. 13750/88, Commission decision of 2 July 1990, DR 66, p. 188, as regards the Spanish bar association; Vialas Simón v. Spain, no. 16685/90, Commission decision of 8 July 1992, unreported, as regards the Spanish Ordres des médecins; O.V.R. v. Russia (dec.), no. 44319/98, ECHR 2001‑V, as regards the Russian notary chambers). As a rule, the object of these bodies, established by legislation, is to regulate and promote the professions whilst exercising important public‑law functions for the protection of the public. They cannot, therefore, be likened to private‑law associations or trade unions, but remain integrated within the structures of the State.

The Court must examine in concreto whether in the present case the BDU and the UDB – as characterised by their functions, structure and membership – are associations falling within the purview of Article 11 of the Convention or rather public‑law institutions, the compulsory membership in which does not constitute an interference with the applicants’ freedom of association.

The Court observes that the Constitutional Court held that under Bulgarian law the BDU and the UDB are considered as public‑law corporations. However, the question is not so much how they are classified by Bulgarian law, but whether they are associations for the purposes of Article 11 of the Convention. The term “association” possesses an autonomous meaning; the classification in national law has only relative value and constitutes no more than a starting‑point (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III).

The Court notes that, much like the Belgian Ordre des médecins, the BDU and the UDB pursue aims which are 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. In particular, they keep the registers of medical doctors and dentists and are endowed with rule‑making and disciplinary powers: they draw up the Professional Ethics Codes for medical doctors and dentists, adopt Rules for Good Medical Practice together with the National Health Insurance Fund, and impose the administrative sanctions which PODDA provides for medical malpractice. It may thus be concluded that the BDU and the UDB employ processes of a public authority, which militates in favour of a finding that they fall outside the scope of Article 11 of the Convention.

The applicants in the present case relied on one additional and, in their view, crucial argument to support their contention that the BDU and the UDB are private‑law associations. They submitted that the BDU and the UDB, unlike similar organisations in other countries, came within the ambit of Article 11 of the Convention by reason of the fact that they alone were empowered to negotiate and conclude the National Framework Agreement with the National Health Security Fund. In their view, the Agreement was akin to a collective bargaining agreement setting forth the conditions under which doctors and dentists work and the remuneration they receive. This, the applicants submitted, was a trade union function; therefore the BDU and the UDB were trade‑union type organisations coming within the scope of Article 11 of the Convention.

However, the Court notes that the National Framework Agreement does not regulate such matters as wages and conditions of work. It rather concerns the amounts that the medical service providers – doctors, dentists and hospitals – can charge the National Health Security Fund for the services they provide to the persons with health coverage at the Fund and the quality, quantity and manner of dispensing of these services. Thus, it is more akin to a price control mechanism, not to a collective bargaining agreement. Indeed, if one takes the example of a hospital which concludes an individual contract with the National Health Security Fund on the basis of the National Framework Agreement, it can hardly be argued that the relations between them resemble those between an employee and an employer. It is true that the contracts individual doctors and dentists enter into with the National Health Security Fund influence to a large extent the manner in which they work and the prices they can charge patients with health coverage, but again, they cannot be likened to employment agreements, as they are merely setting forth the terms under which patients should be serviced and the amounts which the doctors and dentists may charge the Fund for providing medical services.

Moreover, it should be noted that the prices and conditions set forth in the National Framework Agreement concern only services provided to patients with medical coverage provided by the National Health Security Fund. Medical services provided by doctors or dentists to patients with other types of health insurance or without health insurance are not regulated by the Agreement.

Finally, the Court notes that in a recent decision the Supreme Administrative Court considered that the Agreement was akin to a statutory instrument and was subject to judicial review.

In these circumstances, the Court finds that the negotiating and the concluding of the National Framework Agreement cannot be equated to a trade‑union function performed by the BDU and the UDB.

As regards the structure of the BDU and the UDB, the Court notes that it is described in ample detail by PODDA. The Act lays down the structure and the functions of the central and regional bodies of both unions and the members of those bodies. The statutes of the unions are left to regulate only minor matters such as the exact number of members of some of the bodies and the technical details of the procedure for constituting the bodies.

As regards the membership of the BDU and the UDB, the Court notes that compulsory membership in them stems from an individual’s decision to practise a profession which by its nature requires particular legal regulation and not from other factors, such as owning land (see, a contrario, Chassagnou and Others, cited above, opinion of the Commission, § 89).

Having regard to all of the above, the Court concludes that the BDU and the UDB cannot be considered as associations within the meaning of Article 11 of the Convention.

However, there is a further requirement: if there is not to be an interference with the applicants’ freedom of association, the setting up of the BDU and the UDB must not prevent medical doctors and dentists from forming together or joining professional associations. In this connection, the Court notes that the Bulgarian Constitutional Court expressly observed that there are no legal impediments for them to form or join such associations or unions. Insofar as the applicants submit that the formation of other trade unions will be futile, given that only the BDU and the UDB may negotiate the National Framework Agreement with the National Health Security Fund, the Court notes that the Convention does not per se guarantee to trade unions the right to collective bargaining (see Wilson & the National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 44, ECHR 2002‑V). Furthermore, the fact that trade unions formed by medical doctors and dentists will not be able to directly negotiate the terms and conditions of the National Framework Agreement does not automatically mean that there is no scope for such unions to act and voice the demands of their members. The BDU and UDB being legally regulated corporations whose decisions and acts are the product of voting in collective bodies, it is obvious that trade unions may act by mobilising their members so as to achieve a particular decision or position to be taken by the BDU or the UDB.

In sum, the Court concludes that the applicants’ complaint falls outside the scope of Article 11 of the Convention and that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.

3.  The applicant in application no. 48961/99, Ms Vakarelova, complained under Article 11 of the Convention that her right to freedom of association as a member of the BDU before July 1998 had been infringed as a result of the alleged transformation of the Union. She submitted that the “previous BDU”, which was a private‑law association, was wholly transformed by PODDA without the consent of its governing bodies or members.

The Court finds that the applicant’s allegation that PODDA had interfered with her freedom of association as a member of the not‑for‑profit association BDU as it existed before July 1998 is not supported by the facts of the case. It is doubtful whether PODDA in fact operated to overturn the registration of the association BDU (which was registered in 1991) or merely created a new entity having the same name as the exiting one and being the successor of the BDU of 1901. The applicant has not substantiated how, in her view, the court registration of the BDU of 1991 was affected by the Act. Also, it does not appear that the applicant or any other member of the BDU, as it existed before July 1998, have tried to continue their organisational activities within the association or that the authorities have hindered such an attempt in any way and in particular on the ground that the Union had ceased to exist and had been replaced by the new, statute‑created BDU.

It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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