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Entities to which International Guarantees Apply

Wallman et al v Austria, 1 April 2004 [HRC]

 

Case no 1002/2001


8.9 The Committee considers that the second author has substantiated, for purposes of article 2 of the Optional Protocol, that the applicability of article 22 of the Covenant to the Austrian Chamber of Commerce cannot a priori be excluded. It further notes that the “Hotel zum Hirschen Josef Wallmann KG”, being a limited partnership, has no legal personality under Austrian law.  Notwithstanding the fact that the third author has, and availed itself of its, capacity to take part in domestic court proceedings, the second author, who holds 100 percent of the shares of the limited partnership, is, in her capacity as partner, liable for the third author’s obligations vis-à-vis its creditors. The Committee therefore considers that the second author is directly and personally affected by the third author’s compulsory membership in the Chamber and the resulting annual membership fees, and that she can therefore claim to be a victim of a violation of article 22 of the Covenant. 

8.10 To the extent that the second author complains that the practical effect of the annual membership fees is to prevent her from founding or joining alternative associations, the Committee finds that she failed to substantiate, for purposes of admissibility, that the annual payments to the Chamber  is so onerous as to constitute a relevant restriction on her right to freedom of association.  The Committee concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol. (...)

8.13 Regarding the third author, the Committee notes that the “Hotel zum Hirschen Josef Wallmann” is not an individual, and as such cannot submit a communication under the Optional Protocol. The communication is therefore inadmissible under article 1 of the Optional Protocol, insofar as it is submitted on behalf of the third author.

9.2 The issue before the Committee is whether the imposition of annual membership fees on the “Hotel zum Hirschen” (third author) by the Salzburg Regional Chamber of Commerce amounts to a violation of the second author’s right to freedom of association under article 22 of the Covenant.

9.3 The Committee has noted the authors’ contention that, although the Chamber of Commerce constitutes a public law organization under Austrian law, its qualification as an “association” within the meaning of article 22, paragraph 1, of the Covenant has to be determined on the basis of international standards, given the numerous non-public functions of the Chamber. It has equally taken note of the State party’s argument that the Chamber forms a public organization under Austrian law, on account of its participation in matters of public administration as well as its public interest objectives, therefore not falling under the scope of application of article 22.

9.4 The Committee observes that the Austrian Chamber of Commerce was founded by law rather than by private agreement, and that its members are subordinated by law to its power to charge annual membership fees. It further observes that article 22 of the Covenant only applies to private associations, including for purposes of membership.

9.5 The Committee considers that once the law of a State party establishes commerce chambers as organizations under public law, these organizations are not precluded by article 22 of the Covenant from imposing annual membership fees on its members, unless such establishment under public law aims at circumventing the guarantees contained in article 22. However, it does not appear from the material before the Committee that the qualification of the Austrian Chamber of Commerce as a public law organization, as envisaged in the Austrian Constitution as well as in the Chamber of Commerce Act of 1998, amounts to a circumvention of article 22 of the Covenant. The Committee therefore concludes that the third author’s compulsory membership in the Austrian Chamber of Commerce and the annual membership fees imposed since 1999 do not constitute an interference with the second author’s rights under article 22. 

10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it do not disclose a violation of article 22, paragraph 1, of the Covenant.

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