Entities to which International Guarantees Apply

Köll v Austria (decision), 4 July 2002 [ECtHR]


Case no 43311/98

The applicant complains that the compulsory membership of the Tourism Federation violates his right not to be member of an association. (...)
The Court recalls that Article 11 must be considered to protect also the negative freedom of association, i.e. the right not to join and not to be a member of an association, although the scope of this protection remains to be defined. A form of compulsion striking at the very substance of a right guaranteed by Article 11 may in itself amount to an interference with that right (Sigurður A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, pp. 15-17, §§ 35-37).
Moreover, according to the Court’s case-law, a public law institution founded by the legislature is not an association within the meaning of Article 11 of the Convention (see Sigurður A. Sigurjónsson judgment, op.cit., p. 13, § 31; Sigurður A. Sigurjónsson v. Iceland, Report of the Commission of 15 May 1992, Series A no. 264, p.28, § 68; Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 26-27, §§ 64-65).

In the Chassagnou v. France judgment the Court held that the term association in Article 11 of the Convention possesses an autonomous meaning and the classification in national law had only relative value (Chassagnou and Others v. France [GC], nos 25088/94, 28331/95, 28443/05, ECHR 1999-III, § 100). In examining whether the hunting associations at issue were associations within the meaning of Article 11, the Court noted that these associations owed their existence to the will of parliament but found that they were nevertheless set up in accordance with the law on private associations. They did not remain integrated within the structures of the State and did not enjoy prerogatives outside the orbit of ordinary law, whether administrative, rule-making or disciplinary, or that they employ processes of a public authority, like professional associations. The Court concluded that these hunting associations were associations for the purposes of Article 11 (Chassagnou and Others, op. cit., § 101; see also Karakurt v. Austria, no. 32441/96, 14 September 1999). 

In the present case the tourism federations under the Regional Tourism Act owe their existence to the will of the legislature. Moreover such federations differ from associations under private law as regards their structure, the competences of the administrative authorities in supervising their activities, the manner in which disputes between the federation and its members are resolved and the manner in which compulsory contributions are levied. In particular, in view of the strong position the Office of the Regional Government - an administrative authority - hold vis-à-vis the federations and its members, the absence of any internal dispute resolving body or the competence of the ordinary courts in this respect, and the collection of contributions in the manner of regional taxes, the Court finds that the tourism federations at issue “remain integrated within the structures of the State” and “enjoy prerogatives outside the orbit of ordinary law” (Chassagnou and Others, op. cit., § 101).

Furthermore, there is nothing to show that the statutory provisions as applied in the present case otherwise interfered with the applicant’s rights under Article 11 § 1 of the Convention. In particular, it does not appear that the applicant has been prevented from forming or joining an association which would otherwise promote his professional or economic interests  (Le Compte, Van Leuven and De Meyere judgment, op. cit., § 65; O.V.R. v. Russia (dec), no. 44319/98, 3 April 2001).
In these circumstance, the Court concludes that the tourism federation at issue was an institution of public law and cannot be considered an association within the meaning of Article 11 of the Convention. 
It follows that the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must therefore be rejected in accordance with Article 35 § 4.

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