The International Journal
of Not-for-Profit Law

Volume 4, Issue 1, September 2001

A publication of the International Center for Not-for-Profit Law

Case Notes: Western Europe

The Netherlands

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) has referred a case to the European Court of Justice for a preliminary ruling on the following issues relating to the application of the EC 6th Council Directive of 17 May 1977 (77/388/EEC) on the harmonization of VAT laws:

• where it is necessary to establish whether or not a body aims to make a profit for the purposes of Article 13 (A) (1)(m) of the Sixth Directive, must account be taken solely of earnings from the services referred to in that provision, or must earnings from other benefits provided by the body be taken into consideration ?;
• if, for these purposes, account must be taken solely of the services supplied by the relevant body, must only the costs incurred directly for the services be taken into consideration or also a proportion of the body’s other costs ?;
• is there a direct link in the case of subscription fees charged by an association which, pursuant to its articles of association, provides its members with sports facilities in the context of an association and, if not, is the association to be regarded as a taxable person within the meaning of Article 4 (1) of the Sixth Directive only in so far as it also provides benefits for which it receives direct consideration ?;
• must the total amount of the annual subscription fees from the members of the association whom the association provides with sports facilities be included in the earnings of a body in the form of an association which are to be taken into account in determining whether or not the aim is to make a profit, even where no direct link exists between the various benefits provided by the association to its members and the subscription fee paid by them ?;
• does the fact that a body uses surpluses which it systematically aims to make for the purposes of its benefits in the form of a facility to play a type of sport as provided for in Article 13 (A) (1) (m) of the Sixth Directive justify the conclusion that it does not aim to make a profit within the meaning of that provision, or is such a conclusion possible only where the intention is incidentally and not systematically to make operating surpluses which are used as described ? In answering these questions, must account also be taken of the first indent of Article 13 (A) (2) of the Sixth Directive and, if so, how is that provision to be interpreted ?

(Case C-174/00, Kennemer Golf & Country Club v. Inspecteur Belastingdienst Particulieren Ondernemingen Haarlem, OJ C 192 of 8 July 2000 page 13). PB

Switzerland

The Canton Basel-Stadt amended the Cantonal Offences Act to prohibit the recruitment of church members in public places by deceitful or unfair means.  The local branch and a member of the Church of Scientology brought an action for breach of their right to religious freedom.  The Constitutional Court accepted that the church pursued religious aims and was therefore protected by Article 9 of the European Convention on Human Rights; however, the cantonal provisions did not breach those rights since the amended law had not been passed in a form dealing with a particular person or group.  It was for the courts to assess the particular circumstances of the case and to weigh up the means used for gaining new members, the exercise of religious freedom and the need to protect the public from unwanted contacts, especially coupled with moral or religious pressures brought on them or by the use of false promises and statements as to the aims and effects of the movement.

(Bundesgericht (1P.571/1998, 30 June 1999), [2000] EuGRZ 59). PB

Turkey

Political Party Bans in Turkey

As the government of Turkey continues its attempt to ban all political parties that seem to it to be a danger to the general will of the majority, [1] there has been one singular victory against the Islamist Welfare Party.  Yet, despite this victory, the decision may be appealed.  In addition, there is now considerable political confusion about whether to continue to seek a ban against the equally Islamist Virtue Party. 

Previous attempts to ban two political parties in Turkey were struck down by the European Court of Human Rights:

• In United Communist Party of Turkey and Others v. Turkey [2] (“UCP”), decided in January 1998, the European Court that Turkey could not dissolve a political party that had engaged in no illegal activities simply because the national authorities regarded it as undermining the constitutional structures of the State; and
• in Freedom and Democracy Party (ÖZDEP) v. Turkey, decided in December 1999, [3] the Court, in a Grand Chamber decision, not only reaffirmed its decision in UCP but extended it to a political party that had the express aim to recognize rights of the Kurdish minority in Turkey (holding that it did not intend to harm democracy by so doing).  [Both of these decisions and their companion case  Sidiropoulos and Others v. Greece are discussed in IJNL Volume 2, Issue 2].

Most recently, however, in the case of the Refah Partisi (Welfare Party) and Others v. Turkey [4] , the European Court, in a 4-3 Chamber decision, over a strong dissent, held that Turkey’s ban of the Party was permissible.  The Welfare Party decision has ramifications for the action in the Turkish Constitutional Court, in which the government was seeking to ban the Virtue Party, a successor to the Welfare Party.  That case was decided against the Party on June 22.

Welfare Party Case

On May 21, 1997 the Principal State Council for the Court of Cassation brought proceedings against the Welfare Party, seeking to ban it because it had become the “center (mihrak) of activities against the principle of secularism” enshrined in Article 2 of the Turkish constitution.  Once the ban was ordered, the Party and its leaders sought review in the European Court. 

The Court engaged in its normal analysis of cases such as these:

1. Has a condition or restriction been placed on the right to freedom of association?
2. Is the condition or restriction reasonable, or is it an “interference” with the right to freedom of association?
3. If there has been an “interference “–

• Was it “prescribed by law”?
• Does it have a “legitimate aim”?
• Is it “necessary in a democratic society”?

4. In deciding whether an “interference” has a “legitimate aim,” it must be justified --

• In the interests of national security or public safety,
• For the prevention of disorder or crime,
• For the protection of health or morals, or
• For the protection of the rights and freedoms of others.

5. In deciding whether a particular “interference” is “necessary in a democratic society” to achieve the “legitimate aim,” the state party must show that the “interference” was proportionate to the aim pursued. [5]

Granting that there had been an interference with the applicants’ freedoms of association speech, the Court went on to determine whether the interference was justified, as described above.  The major question presented, according to the majority, was whether the aims of the Welfare Party were such that they could undermine the democratic imperative of Turkey to be a secular state.  The Court found that they did, citing three different goals of the Party:

1. to establish a plurality of legal systems in Turkey based on differences in religious belief,
2. to establish Sha’riah law in Turkey; and
3. to develop jihad or holy war as a political method. 

Proof of these aims was not discovered through the Party’s founding documents or platform, but rather through statements made by Party leaders and members.

Although the majority of the Court found that dissolution was permissible, the dissent argued forcefully that it was not.  The dissent disagreed, for example, with the majority’s reliance on statements by Party members in distinction to a real Party platform, noting that in previous cases the European Court had rejected such reliance.  Most importantly, however, the dissent rejected the notion that the ban would be legitimate “in a democratic society.”  Citing the previous Grand Chamber decisions in the UCP and ÖZDEP cases, the dissent argued in favor of the importance of protecting pluralism in any democratic state. 

In addition, the dissent discussed the principle of nondiscrimination, which it called “one of the fundamental principles of a democracy.” (¶ 69).  Citing the “Belgian language” cases and Abdulaziz, Cabales and Balkandi v. United Kingdom, [6] the dissent also relied the importance of religious tolerance as being in the interest of society as a whole for its conclusion that the ban of the Welfare Party violated the human rights protections laid down in the ECHR. 

Under Article 43 of the ECHR, any party to the case may request the referral of a Chamber judgment to the 17 Grand Chamber of the Court, and one assumes that will be done in this case.  The appeal must be taken within three months of the Chamber decision or else that decision becomes final.

Virtue Party Case

After the ban of the Welfare Party, various members of the banned Welfare Party reconstituted themselves as the Virtue Party and stood for Parliament in the last election.  Although support for the party fell to 15% in that election, it is clear from newspaper stories that the Party continued to have wide-spread support.  Nonetheless, on June 22 the Constitutional Court came out against it, stating that it had become a “focus of anti-secular activities.”  In light of the decision in the Welfare Party case, it is likely that the attempts by more moderate Turks to amend the Political Party law to make it more difficult to ban parties will fall on deaf ears.  But it is a healthy sign – one clearly favoring pluralism – that such a bill has found considerable support in Turkey.  KS

Notes

[1] The dissent in the Welfare Party case, infra note 4, notes that there have been 15 cases brought in Turkey to ban various political parties and that of these four have gone to the European Court of Human Rights.  All except the most recent have been won by the parties involved. 

[2]   European Court of Human Rights, (133/1996/752/951)(Grand Chamber decision, January 30, 1998).

[3] European Court of Human Rights [GC], #23885/94, §26, CEDH 1999-VIII.

[4] See Affaire Refah Partisi (Partie de le Prospértié) et autres c. Turquie, Cour Europeenne des Droits de L’Homme, 31 juillet 2001.  (The full text decision is available only in French)

[5] In ÖZDEP the Court states that the “interference in issue was radical…,”involving as it did, the dissolution of the party before it even began its activities.   It also noted that the party was “penalised solely for exercising its freedom of expression.”

[6] Series A, # 6, pp. 33-34, §§9-10 and series A # 94, pp. 35-36, § 72. 

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