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Membership

Van der Heijden v Netherlands (decision), 8 March 1985 [ECtHR]

Case no 11002/84

In 1975, the applicant was employed by the Limburg Immigration Foundation (Limburgse Immigratie Stichting). The file indicates that, at the time of the events complained of, he held the post of regional director and was a member of the Board ("ondememingsrad") of the Foundation.

On 9 February 1984, the applicant was interviewed by the President of the Foundation and informed that his membership of the bureau by the "Centrumpartij" and his status as the party's Limburg district chairman were causing the Foundation concern, in view of that party's hostile attitude to the presence of workers from Surinam and other foreign countries in the Netherlands. The applicant was told that no complaints could be made against him personally, but that this situation would make it hard for him to continue working for the Foundation.

On 27 February 1984, the Foundation applied to the Roermond District Court under Section 1639w para. I of the Civil Code, asking it, on serious grounds, to terminate the employment contract which it had concluded with the applicant. The serious grounds which it cited concerned the change of circumstances which, under Sub-section 2 of that provision, made it necessary to terminate the professional   relationship .

On 10 April 1984 . the Roermond Court granted this application and terminated the contract with effect from I May 1984 ...

The applicant complains of the termination of the employment contract concluded between himself and the Immigration Foundation on account of his membership of the "Centrumpartij" and his political activities within that party. He claims that his rights to freedom of expression and association have been violated.

...

The Commission emphasises that the present case concerns not the removal of the freedoms guâranteed by Articles 10 and 11 of the Convention, but the effects which exercising them had on the applicant's professiônal situation. Within these limits, the Commission nonetheless considers that termination of the applicant's contract on account of his membership of the "Centrumpartij" and of his political activities and opinions within that party restricted or sanctioned those freedoms insofar as it resulted from his exercising them.

The next question is whether this restriction was justified under the second paragraphs of Articles 10 and 11.

First of all, the Commission considers that the interference was provided for in law, and particularly Section 1639w of the Civil Code, which lists the cases in which contracts may be terminated and states, in Sub-section 2, that contracts may be terminated when new circumstances make it necessary to do so. There can be no doubt that the text of this provision was "adequately accessible" to the applicant (Eur . Court H .R., Sunday Times judgment of 26 April 1979, Series A no . 30, para . 49). As for foreseeability, the Commission notes that the applicant was a regional director and member of the Board at the time in question and was thus, in the Commission's opinion, in a reasonable position to foresee that his becoming an active member of the "Centrumpartij" might well have adverse effects on his professional situation.

As for the purpose of the interference, the Commission considers that it was intended to protect the rights of others and, in particular, the rights of staff of the Foundation and persons likely to approach the Foundation.

Finally, the Commission must consider whether the restriction was necessary in a democratic society. It points out that it is not required to decide whether the decision was consistent with domestic law, but to consider it with reference to Articles 10 and 11 of the Convention. It is not therefore required to decide - a question considered irrelevant by the Roermond Court - whether or not the applicant performed his duties in a discriminatory fashion, but whether the restriction imposed on his aforesaid freedoms was in due proportion to the collective interests which this restriction sought to protect.

The Commission notes that the applicant's contract was terminated because his political activities, as reported in the media, were incompatible with the aims of the Foundation. In the circumstances of the present case, the Commission regards it as reasonable that the employer should have some discretion concerning the composition of his staff. Moreover, in view of the applicant's professional duties and the specific nature of his work, the Commission considers that the employer could reasonably take account of the adverse effects which his political activities might have on the Foundation's reputation,. particularly in the eyes of the immigrants whose interests it sought to promote.

For these reasons, the Commission considers that the restriction or sanction complained of was a measure necessary in a democratic society to protect the rights of others.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

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Compulsion to join Business associations Economic objectives Hunting associations Pension funds Restrictions Criminal convictions Non-nationals Public officials Disclosure of member's name Deportation Discriminatory treatment Failure to promote Transfer