Sigurdur A. Sigurjónsson v Iceland, 30 June 1993 [ECtHR]

Case no 16130/90

29.  The applicant [taxi-driver] alleged that the obligation incumbent on him to be a member of Frami on pain of losing his licence constituted a violation of Article 11 (art. 11) of the Convention ...

2. Whether the right claimed by the applicant was covered by Article 11 (art. 11)

33. The Government, whilst accepting the view enunciated in the Young, James and Webster v. the United Kingdom judgment of 13 August 1981 (Series A no. 44, pp. 21-22, para. 52) that the negative aspect of the right to freedom of association does not fall completely outside the ambit of Article 11 (art. 11), contested that it extended as far as encompassing a right for the applicant not to be a member of Frami. They contended that such a negative right must be interpreted restrictively, bearing in mind a passage in the travaux préparatoires cited in that judgment, which showed that a general rule, modelled on Article 20 para. 2 of the 1948 United Nations Universal Declaration of Human Rights, that no one may be compelled to belong to an association, had deliberately been omitted from the Convention (ibid., paras. 51-52).

Furthermore, they maintained that the present case should be distinguished from the 1981 case in view of the following factors:

(a) In the latter instance, the applicants had been employed for a considerable time when their employer concluded the impugned agreements with the trade unions - with the effect that they had to join one of the unions or lose their job. The position in the proceedings now before the Court was quite different in that the membership obligation existed before the applicant was granted a licence in 1984, on which occasion he unreservedly and without compulsion agreed to become a member of Frami. Although the Supreme Court’s December 1988 judgment (see paragraph 15 above) could be taken to mean that he had not been obliged under Icelandic law to join Frami in 1984, there was, nevertheless, a de facto obligation so to do. Anyhow, the applicant was entirely free either to accept this or to seek employment in another field.

(b) His objections to membership of Frami could not be compared to those of Mr Young and Mr Webster, both of whom had been opposed to trade-union policies and activities and one of them, to the unions’ political affiliations.

(c) Whilst the organisation at issue here was non-political, the 1981 case had concerned a type of association - a trade union - which was frequently affiliated to political parties or otherwise involved in politics and was thus likely to interfere with its members’ enjoyment of the Convention freedoms, notably the freedom of opinion.

The Government submitted that should the Court find that the applicant was protected by Article 11 (art. 11) it would mean a step further than the Young, James and Webster judgment and the above-mentioned passage in the travaux préparatoires would be rendered nugatory.

34. Both the applicant and the Commission were of the view that there had been an interference with his right to freedom of association as covered by Article 11 (art. 11). The Delegate stressed that the proper construction of the relevant extract of the travaux préparatoires was that it fell to the Convention institutions to determine whether such a negative right existed under this Article (art. 11) and, if so, its scope.

35.  As to the question of the general scope of the right in issue, the Court notes, in the first place, that although the aforementioned judgment took account of the travaux préparatoires, it did not attach decisive importance to them; rather it used them as a working hypothesis (see, for example, pp. 21-22, paras. 52 and 55: "Assuming for the sake of argument ..." and "Assuming that Article 11 (art. 11) does not guarantee the negative aspect of that freedom on the same footing as the positive aspect ..."). Moreover, whereas the membership obligation concerning Mr Young, Mr James and Mr Webster was based on an agreement between their employer and the trade unions, that of Mr Sigurdur A. Sigurjónsson was imposed by law. Under Articles 5 and 8 of the 1989 Law and Article 8 of the 1989 Regulation, he had to be a member of a specified association - Frami - in order to satisfy the licence conditions and it was not possible for him to join or form another association for that purpose. It was further provided that a failure to meet this condition could entail revocation of the licence and liability to pay a fine. Compulsory membership of this nature, which, it may be recalled, concerned a private-law association, does not exist under the laws of the great majority of the Contracting States. On the contrary, a large number of domestic systems contain safeguards which, in one way or another, guarantee the negative aspect of the freedom of association, that is the freedom not to join or to withdraw from an association.

A growing measure of common ground has emerged in this area also at the international level. As observed by the Commission, in addition to the above-mentioned Article 20 para. 2 of the Universal Declaration (see paragraph 33 above), Article 11 para. 2 of the Community Charter of the Fundamental Social Rights of Workers, adopted by the Heads of State or Government of eleven member States of the European Communities on 9 December 1989, provides that every employer and every worker shall have the freedom to join or not to join professional organisations or trade unions without any personal or occupational damage being thereby suffered by them. Moreover, on 24 September 1991 the Parliamentary Assembly of the Council of Europe unanimously adopted a recommendation, amongst other things, to insert a sentence to this effect into Article 5 of the 1961 European Social Charter (see Parliamentary Assembly, Forty-third Ordinary Session (second part), 18-25 September 1991: Official Report of Debates, Vol. II, p. 502, and Texts adopted by the Assembly, Appendix to Recommendation 1168 (1991), p. 5). Even in the absence of an express provision, the Committee of Independent Experts set up to supervise the implementation of the Charter considers that a negative right is covered by this instrument and it has in several instances disapproved of closed-shop practices found in certain States Parties, including Iceland. With regard to the latter, the committee took account of, inter alia, the facts of the present case (see Conclusions XII-1, 1988-89, pp. 112-113, of the aforementioned committee). Following this, the Governmental Committee of the European Social Charter issued a warning to Iceland (by ten votes to four with two abstentions; see the Governmental Committee’s 12th report to the Committee of Ministers of 22 March 1993, paragraph 113).

Furthermore, according to the practice of the Freedom of Association Committee of the Governing Body of the International Labour Office (ILO), union security measures imposed by law, notably by making union membership compulsory, would be incompatible with Conventions Nos. 87 and 98 (the first concerning freedom of association and the right to organise and the second the application of the principles of the right to organise and to bargain collectively; see Digest of decisions and principles of the said committee, 1985, paragraph 248).

In this connection, it should be recalled that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, amongst other authorities, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 40, para. 102). Accordingly, Article 11 (art. 11) must be viewed as encompassing a negative right of association. It is not necessary for the Court to determine in this instance whether this right is to be considered on an equal footing with the positive right.

36. As to the specific circumstances of the case, the Court is not persuaded by the Government’s argument that an obligation to join Frami already existed when the applicant obtained his licence in 1984. No significant weight can be attached to the fact that, before being granted the licence, he agreed to become a member; it is a matter of speculation whether he would have done so in the absence of the membership condition laid down in the 1983 Regulation (see paragraph 8 above), which was later held by the Supreme Court to lack a statutory basis (see paragraph 15 above), though his conduct since August 1985 suggests that he would not (see paragraphs 9 to 17 above). Nor has it been established that an obligation of membership arose for any other reason. In fact, only when the 1989 Law entered into force on 1 July 1989 did it become clear that membership was a requirement. The applicant has since been compelled to remain a member of Frami and would otherwise, as was amply illustrated by the revocation of his licence in 1986 (see paragraph 10 above), run the risk of losing his licence again. Such a form of compulsion, in the circumstances of the case, strikes at the very substance of the right guaranteed by Article 11 (art. 11) and itself amounts to an interference with that right (see the above-mentioned Young, James and Webster judgment, pp. 22-23, paras. 55 and 57, and the Sibson v. the United Kingdom judgment of 20 April 1993, Series A no. 258-A, p. 14, para. 29).

37. What is more, Mr Sigurdur A. Sigurjónsson objected to being a member of the association in question partly because he disagreed with its policy in favour of limiting the number of taxicabs and, thus, access to the occupation; in his opinion the interests of his country were better served by extensive personal freedoms, including freedom of occupation, than State regulation. Therefore, the Court is of the view that Article 11 (art. 11) can, in the circumstances, be considered in the light of Articles 9 and 10 (art. 9, art. 10), the protection of personal opinion being also one of the purposes of the freedom of association guaranteed by Article 11 (art. 11) (see the above-mentioned Young, James and Webster judgment, pp. 23-24, para. 57). The pressure exerted on the applicant in order to compel him to remain a member of Frami contrary to his wishes was a further aspect going to the very essence of an Article 11 (art. 11) right; there was an interference too in this respect. The Government’s argument that Frami was a non-political association is not relevant in this regard.

3. Recapitulation

38.  In the light of the above, the Court agrees with the applicant and the Commission that the measures complained of constituted interference with his right to freedom of association as guaranteed by paragraph 1 of Article 11 (art. 11-1).

Such interference entails a violation of Article 11 (art. 11) unless it meets the conditions laid down in paragraph 2 (art. 11-2).

B. Whether the interference was justified under paragraph 2 of Article 11 (art. 11-2)

39. The applicant’s complaint to the Strasbourg institutions concerned only the period after 1 July 1989, when the 1989 legislation entered into force (see paragraph 18 above). It is not contested that, after that date, the impugned membership obligation was "prescribed by law" and pursued a legitimate aim, namely as found by the Commission, the protection of the "rights and freedoms of others". The Court sees no reason to disagree.

40.   On the other hand, the applicant and the Commission disputed the Government’s view that the interference was "necessary in a democratic society".

The Government, referring to their arguments set out in paragraphs 30 and 33 above, maintained in particular that, bearing in mind the status of the licence-holders as independent business operators, membership constituted a crucial link between them and Frami in that the latter would not be able to ensure the kind of supervisory functions which it performed unless all the licence-holders within its area were members. It would not be desirable to confer such tasks on taxi stations as these were in many instances owned by the licence-holders themselves and thus lacked the necessary authority; doing so would not only require legislative measures, but would also radically alter the relationship between the stations and the licence-holders. Nor would it be appropriate for the functions to be assumed by a public authority, as having them carried out by Frami was more expedient and less expensive.

41. In the first place, the Court recalls that the impugned membership obligation was one imposed by law, the breach of which was likely to bring about the revocation of the applicant’s licence. He was thus subjected to a form of compulsion which, as already stated, is rare within the community of Contracting States and which, on the face of it, must be considered incompatible with Article 11 (art. 11) (see, mutatis mutandis, the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 27, para. 65).

The Court does not doubt that Frami had a role that served not only the occupational interests of its members but also the public interest, and that its performance of the supervisory functions in question must have been facilitated by the obligation of every licence-holder within the association’s area to be a member. However, the Court is not convinced that compulsory membership of Frami was required in order to perform those functions. Firstly, the main responsibility for the supervision of the implementation of the relevant rules lay with the Committee (see paragraph 20 above). Secondly, membership was by no means the only conceivable way of compelling the licence- holders to carry out such duties and responsibilities as might be necessary for the relevant functions; for instance, some of those provided for in the applicable legislation (see paragraph 22 above) could be effectively enforced without the necessity of membership. Lastly, it has not been established that there was any other reason that would have prevented Frami from protecting its members’ occupational interests in the absence of the compulsory membership imposed on the applicant despite his opinions (see, inter alia, the above-mentioned Schmidt and Dahlström judgment, p. 16, para. 36, and the above-mentioned Young, James and Webster judgment, pp. 25-26, para. 64).

Having regard to the foregoing, the reasons adduced by the Government, although they can be considered relevant, are not sufficient to show that it was "necessary" to compel the applicant to be a member of Frami, on pain of losing his licence and contrary to his own opinions. In particular, notwithstanding Iceland’s margin of appreciation, the measures complained of were disproportionate to the legitimate aim pursued. Consequently, there has been a violation of Article 11 (art. 11).

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