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Objectives and Activities

Lavisse v France (decision), 5 June 1991 [ECtHR]

Case no 14223/88

Restrictions on the exercise of the right guaranteed are permitted if they are "prescribed by law" and "necessary in a democratic society" to achieve one of the legitimate aims listed in Article 11 para. 2.

The words "prescribed by law" mean not only that the impugned measure must have a basis in domestic law, but also that the taw must be accessible, foreseeable in its effects and compatible with the pre-eminence of law.

In this case the Commission notes that the Law of I June 1924 bringing French civil legislation into force in the departments of Bas-Rhin, Haut-Rhin and Moselle expressly excluded the application of French legislation on associations. Consequently, in these three departments the local Civil Code, the Law of 19 April 1908 and the Ordinance of 22 April 1908 are in force.

Article 61 of the local Civil Code, the translation of which was published in the Official Bulletin of 1925, empowers the administrative authorities to oppose registration ...That law was accessible, foreseeable in its effects and compatible with the pre-eminence of law; moreover, this is not disputed by the applicant.

With regard to the legitimacy of the aim pursued, the Commission considers that the aim in question was the prevention of a criminal offence, i e incitement to abandon a child, defined by Article 353-1 para 2 of the Criminal Code Consequently, the measure adopted can be held to be in pursuit of one of the legitimate aims set out in Article 11 para. 2, namely the prevention of crime.

With regard to the necessity of the measure, the Commission recalls that this implies a "pressing social need" and that in this area States enjoy a certain margin of appreciation (cf Eur. Court H R, Handyside judgment of 7 December 1976, Series A no 24, p 22, para 48).

The aims of the association included defence of the moral and material interests of surrogate mothers and promotion and moral endorsement of surrogate motherhood. This practice is a recent development not as yet regulated by any law and the subject of public controversy. That being the case, if the Prefect had not objected lo the association's registration, this might have been interpreted as a sign of the public authorities' implicit approval of the practice in question.

Without expressing an opinion on the merits of this issue, the Commission considers that the Prefect's objection to the association's registration can be regarded as a necessary measure in a democratic society, having regard to the margin of appreciation States enjoy in this area.

Moreover, the measure seems to have had limited effects, since the applicant has not shown that the objection to the association's registration prevented it from engaging in any activity. It was therefore not disproportionate to the aim pursued.

It follows that, in so far as there was an interference with the applicant's right to freedom of association, that interference was justified under Article 11 para 2 of the Convention.

This part of the application must therefore be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

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