The International Journal
of Not-for-Profit Law

Volume 3, Issue 1, September 2000

By Wino J.M. van Veen
Associate Professor, Faculty of Law, Free University of Amsterdam

1 Introduction

Freedom of association is one of the classic fundamental rights. Freedom of association is laid down in the constitutions of many countries and in many treaties, including Article 20 of the Universal Declaration of Human Rights and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It guarantees the freedom of natural persons and legal entities to collaborate on a voluntary basis within an organisational context without government intervention, in order to realise a mutual goal.[1] Freedom of association can be limited, provided that the limitation is provided for by law and is necessary in a democratic society in the interests of national safety, territorial integrity, public safety, interests of third parties, prevention of riots and offences, and protection of health and public decency (Article 11(2) of the ECHR).[2]

A differentiation is made between positive and negative freedom of association. Positive freedom of association relates to the freedom to form and enter into an association. The converse, negative freedom of association, implies that no one can be compelled to form or join an association. Although the concept of freedom of association is usually thought of in the positive sense, negative freedom of association is just as fundamentally important. The voluntary nature of the association is an essential factor. It should not be possible to force an individual to be associated with an organisation that has been established pursuant to civil law. Thus, it is generally assumed that freedom of association protects not only the right to form and participate in voluntary organisations but also protects citizens from being forced to form or participate in such organisations.

In practice, however, it is apparent that in many countries forced association is common practice, with respect to both relationships that involve only citizens and/or private-law entities and relationships between the government and citizens or organisations established pursuant to civil law. It thus appears that negative freedom of association is not receiving the attention it deserves. This article will focus on negative freedom of association in relation to Article 11 of the ECHR. For an extensive discussion of the classification of constitutional protection and the instruments for ensuring compliance with the ECHR, see the article that was published on that subject earlier in the IJNL.[3] In this article I will not discuss the doctrine with respect to violation of Article 11 of the ECHR in conjunction with one or more other articles of the ECHR.

2 Definition

2.1 De jure and de facto Forced Association

In order to be able to put the applicability of Article 11 of the ECHR into perspective, it is important to differentiate between the different types of forced association. Forced association can occur in various forms, one of which is de jure, in which case the membership of an association is legally imposed. That would be the case, for example, if the possession of a particular capacity automatically entailed membership of a certain association by law (or if that were legally permitted). That capacity could consist, e.g., of the possession of a certain piece of real property or the possession of particular qualifications required to exercise a certain profession.

A second form of forced association is forced association de facto, in which case the interested party is given a choice as to whether to become and remain a member of an association, but the refusal to do so would have serious negative consequences for the relevant person. An example would be membership of a trade union on pain of loss of employment, or membership of an interest group (whether or not contractually stipulated) on pain of being forced to terminate certain activities or give up (ownership) rights etc.

If and to what extent both forms of forced association are covered by Article 11 of the ECHR will be discussed below.

2.2 The Concept of an Association

In order to determine the scope of freedom of association, it is essential to determine what, exactly, an association is within the meaning of Article 11 of the ECHR. First, it must be noted that organisations governed by public law are not covered by the freedom of association provided for in Article 11 of the ECHR. An example of such an organisation would be a professional association that is established by law and that is vested with powers pursuant to public law. Compulsory membership of such a professional association would not constitute an infringement on freedom of association if and to the extent that it does not impede the relevant professionals from voluntarily establishing and becoming members of another professional association.[4]

An important question in this regard is whether it is decisive that an association or an organisation is considered to be governed by public law or private law pursuant to the national law of the Contracting State involved. A positive answer would imply that national Member States could affect the scope of Article 11 of the ECHR. The European Court of Justice therefore answered this question negatively, most recently in the case of Chassagnou et al. v. France, judgment of 29 April 1999, appl. nos. 25088/94, 28331/95, 28443/95), which involved the question whether statutorily regulated hunting associations must be deemed to be organisations that are governed by public law, which fall outside the scope of Article 11 of the ECHR. In paragraph 100 of its judgment, the European Court held that

[i]f Contracting States were able, at their discretion, by classifying an association as ‘public’ or ‘para-administrative’, to remove it from the scope of Article 11, that would give them such latitude that it might lead to results incompatible with the object and purpose of the Convention, which is to protect rights that are not theoretical or illusory but practical and effective…

Freedom of thought and opinion and freedom of expression, guaranteed by Articles 9 and 10 of the convention respectively, would thus be of very limited scope if they were not accompanied by a guarantee of being able to share one’s beliefs or ideas in community with others, particularly through associations of individuals having the same beliefs, ideas or interests.

The term ‘association’ therefore possess an autonomous meaning: the classification in national law has only relative value and constitutes no more than a starting-point.

It is important to note that the Court stated in this regard that it is not decisive that the relevant associations derive their existence from the national legislature and that they are under government control. It does appear to be relevant whether the relevant associations

enjoy prerogatives outside the orbit of the ordinary law, whether administrative, rule making or disciplinary, or that they employ processes of a public authority, like professional organisations (paragraph 101).

3 Negative Freedom of Association and Article 11 of the ECHR

Article 20(2) of the Universal Declaration of Human Rights expressly provides that no one may be compelled to belong to an association. A provision with that purport is not included in either Article 11 of the ECHR. The question is whether this means that negative freedom of association does not fall within the scope of Article 11 of the ECHR. The traveaux préparatoirs to Article 11 of the ECHR seem to indicate that that is the case.[5] In two important judgments, the European Court of Human Rights distanced itself from that position, however, and made a number of fundamental statements with respect to the scope of the protection of negative freedom of association. In the case of Young, James and Webster v. United Kingdom,[6] the question arose how ‘closed shop practice’ related to Article 11 of the ECHR. The case of Sigurdur A. Sigurjónsson v. Iceland,[7] related to membership of an organisation (‘Frami’) that was (primarily) governed by private law, which was a condition for obtaining a permit to work as a taxi driver. These judgments answer the question whether and to what extent negative freedom of association falls under the protection of Article 11 of the ECHR and offer important leads regarding the extent to which Article 11 of the ECHR opposes de facto forced association and the effect thereof on private-law relationships.

In the first of the two cases referred to above, Young, James and Webster, who had been employed by British Rail for some time, were confronted with the demand that they become members of one of the trade unions involved in a (collective) agreement at British Rail. Young, James and Webster refused to become members on principle.[8] They did not want to be associated with the ‘offered’ trade unions, in part due to the political position of the relevant trade unions, the assertion that they did not properly serve their members’ interests, and because of the obligation to take part in any strikes. British Rail decided to dismiss them. One of the questions that came up in the proceedings was whether that type of forced association was contrary to Article 11 of the ECHR. The Court did not explicitly state whether Article 11 of the ECHR also included negative freedom of association, but it did state that

a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union.[9]

The Court subsequently held that, under the circumstances of the case, this type of coercion affected the very essence of the right to freedom of association and therefore infringed on Article 11 of the ECHR. The Court then addressed the question whether a justified infringement was involved within the meaning of Article 11(2) of the ECHR. The Court was of the opinion that the infringement of the applicants’ fundamental rights was not proportional to the purpose that they were meant to serve and that the infringement was therefore inadmissible.

In that judgment, the Court was somewhat reticent in addressing the scope of Article 11 of the ECHR with respect to negative freedom of association. It limited itself explicitly to the circumstances of the specific case. In the more recent judgment in the case of Sigurdur A. Sigurjónsson v. Iceland, the Court was much clearer in this respect, however, and offered clarification with regard to the relationship between forced membership and Article 11 of the ECHR. That case involved forced membership for taxi drivers of an organisation called ‘Frami’. Membership of Frami was a requirement for obtaining a permit to work as a taxi driver.

After establishing that Frami had a private law legal structure within the meaning of Article 11 of the ECHR,[10] the Court addressed the question of whether that Article had been violated. This explicitly related to the question of whether negative freedom association receives the full protection of Article 11 of the ECHR. In answering that question, the Court referred to the national law of the various Member States in which negative freedom of association is guaranteed and the growing consensus in the international community regarding the worthiness of protecting negative freedom of association.[11] The Court held that

in the present-day conditions [Article 11 of the ECHR] must be viewed as encompassing a negative right of association.[12]

Although the Court deemed that there were no grounds on which to answer the question whether negative freedom of association is protected to the same extent as positive freedom of association, the judgment is not without consequences with respect to this question; unlike the Young, James and Webster case, in this case the Court explicitly established that Article 11 of the ECHR includes negative freedom of association.[13] This means that the Court will not allow implicit limitations on negative freedom of association.[14] A direct result thereof is that, in principle, every compelling obligation to join a private law organisation infringes on freedom of association. The admissibility of such an obligation must therefore be tested against the criteria of Article 11(2) of the ECHR, just like every infringement of Article 11(1).

In its judgment, the Court did not note any complications with respect to the requirement that the limitation must have a legal basis and that it must serve one of the listed purposes; that requirement was met in the present case since the limitation could be deemed to serve the protection of rights and freedoms of third parties. The crucial question, however, as is generally the case, is the extent to which the limitation is necessary in a democratic society. The Court did not dispute that the intended protection of public interests was simplified through Frami’s actions, but that was not sufficient to justify the infringement of Article 11(1); for that to be the case, the infringement would have to have been necessary. The Icelandic regulation could not satisfy that criterion, in part because the responsibility for exercising public duties was not Frami’s, but rather was vested in a ‘committee’ that acted outside of Frami. In addition, it was not established that the required membership was ‘the only conceivable way’ to realise the interest intended by the government. Finally, the Court was not of the opinion that legally required membership was necessary for Frami to fulfil its representative function. Thus, the required membership constituted an infringement of freedom of association that was not proportional to the legitimate purpose intended; it was therefore contrary to Article 11 of the ECHR.

4 De jure Forced Association

De jure forced association occurs if it is provided or permitted by law that a particular capacity automatically entails, or requires, membership of a certain association. Generally speaking, the national law of associations does not allow an association to unilaterally determine who will be a member of the association. In addition, freedom of association implies that a membership must be terminable. This is generally provided for in the national law of associations, although a reasonable notice period may be allowed. I am unaware of any legislation that allows involuntary membership of an association on the basis of the Articles of Association or other constitutive documents of an association or other legal entity established under private law.

In various countries there is a form of legally required membership of an association that cannot be terminated, however. An example that recently led to a judgment from the European Court of Human Rights related to the required membership of hunters’ associations in France.[15] The relevant legislation required owners of real property with a certain surface area to become and remain members of a local hunters’ association and to transfer the hunting rights on their property to the association. The legislation was intended to promote efficient management of game and to democratise hunting so that individuals who were not landowners could also hunt. A number of landowners contested the required membership, in part because they were against hunting on principle. Thus, the right to have a personal opinion was at issue.

The Court deemed that an infringement of freedom of association was at issue. The infringement was provided for by law, and since the purpose of the legislation was to organise and regulate a leisure activity, the legislation had a legitimate purpose. The question was thus whether the limitation was necessary in a democratic society in order to protect the rights of third parties, in this case those individuals who wanted to hunt for pleasure. The Court answered that question negatively. First, the Court took into consideration that in weighing the interests, a ‘broad margin of appreciation’ had to be given to the Contracting States if the consideration involved rights and freedoms that are provided for in the ECHR or the accompanying protocols. The Court went on to state:

It is a different matter where restrictions are imposed on a right or freedom guaranteed by the Convention in order to protect ‘rights and freedoms’ not, as such, enunciated therein. In such a case only indisputable imperatives can justify interference with enjoyment of a Convention right (paragraph 113).

The ‘margin of appreciation’ of a Contracting State is therefore limited to a minimum if a limitation of a fundamental right provided for in the ECHR is involved with respect to rights and freedoms that are not provided for in the ECHR. The Contracting States thus have very little room to limit the operation of the ECHR by creating competitive fundamental rights and freedoms themselves that are not provided for in the ECHR.

After establishing that the limitations were not necessary in a democratic society, in part because only one out of four municipalities in France imposed such required membership and the requirement was imposed on owners of relatively small estates, while owners of large estates and property owned by the government were excluded, the Court stated:

To compel a person by law to join an association such that it is fundamentally contrary to his own convictions to be a member of it, and to oblige him, on account of his membership of that association, to transfer his rights over the land he owns so that the association in question can obtain objectives of which he disapproves, goes beyond what is necessary to ensure that a fair balance is struck between conflicting interests and cannot be considered proportionate to the aim pursued.

5 De facto Forced Association; the Effect of Article 11 of the ECHR in Private Law Relationships

5.1 De facto Forced Association

In the above case, directly joining an association and continuation of the membership are required. I have referred to that as de jure forced association. But can forced association also (to some extent) be exercised more subtly? For example, can refusal to join as a member or premature termination of the membership be a ground for refusal or revocation of a permit? It is reasonable to inquire whether it is permissible in private law relationships that refusal to become or remain a member of an association could lead to termination of a contract. In that case, the forced association would not consist of a legal obligation to accept the membership or continuation thereof, but in fact there certainly could be forced association.

The first question is whether de facto forced association infringes negative freedom of association. Unlike de jure freedom of association, the interested party does have a choice in whether to become a member of the association. Not accepting the membership or terminating it would lead only to the interested party losing his or her job, not being able to conduct a certain trade, having to find a new residence, etc. It could be argued prima facie that freedom of association is not at issue. An individual who does not wish to become or remain a member on principle does not have to join or can terminate the membership. He or she would have to accept the consequences thereof, but that would be his or her own choice.

This situation was implicitly involved in the Young, James and Webster case. But the line of reasoning set out above was eventually put before the European Court explicitly in the Sigurdur A. Sigurjónsson case. The Icelandic government tried to counter the invocation of Article 11 of the ECHR on the basis of violating negative freedom of association with the argument that

the applicant was entirely free either to accept this or to seek employment in another field.[16]

The Court made short work of that view, stating that the fact that forced association was involved, on pain of losing the permit, was a form of coercion that

strikes at the very substance of the right guaranteed by Art. 11 and itself amounts to an interference with that right…

The European Court’s decision thus leaves little room for doubt that also de facto forced association infringes negative freedom of association as guaranteed by Article 11 of the ECHR, and it must therefore be reviewed on the basis of that Article.

In particular when the other party has a vested interest in maintaining the contract, as is often the case with employment contracts and leases, significant forced membership may be involved. The question arises whether Article 11 of the ECHR may also be involved between private parties, which leads to the issue of the ‘horizontal effect’ of fundamental rights, or the degree to which fundamental rights are operative between citizens and civil organisations (see section 5.2 infra).

5.2 Effect in Private Law Relationships; Consequences for Forced Association That is Contractually Imposed

There are various views on how fundamental rights affect private law relationships. The degree and nature of that effect can differ depending on the nature and content of the fundamental right. I will primarily discuss freedom of association as it is guaranteed in Article 11 of the ECHR.

It is clear that pursuant to Article 11 of the ECHR, the Member States to the treaty are required to guarantee rights and freedoms, including freedom of association, to everyone who is subject to their legal systems. It is also clear that the ECHR is primarily aimed at Member States, and in particular their governments. If infringement of fundamental rights is at issue, a claim can be brought against the Member States and they can be summoned to appear before the Court. With respect to the ‘horizontal’ effect, it is important to answer the question whether a Member State is also responsible for laying down its laws (including private laws) in such a way that observation of fundamental rights is ensured, also in relationships between citizens.

In the Young, James and Webster case, the Court explicitly answered this question in its judgment. That case involved, inter alia, the question of the basis on which the United Kingdom was responsible for the violation that was the ground for the complaint. In that respect, the Court stated:

Although the proximate cause of the events giving rise to this case was the 1975 agreement between British Rail and the railway unions, it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained. The responsibility of the respondent State for any resulting breach of the Convention is this engaged on this basis.[17]

The Court apparently assumed that the Contracting States have an obligation to guarantee the enjoyment of fundamental rights, or in any event Article 11 of the ECHR, not only in the relationships between the citizens and the government but also in other legal relationships. In this case, the Court stated that the United Kingdom failed in its duties when laying down the relevant legal relationships (in this case in the Trade Union and Labour Relations Act of 1974). In a sense, it comes down to the fact that national law may not be contrary to the ECHR.

This offers an important indication of the relation of Article 11 of the ECHR to private law relationships, even if the government is not directly involved as a party. The Court did not offer an opinion about how freedom of association, including negative freedom of association, must be guaranteed in national law, but it did indicate that national law must offer protection against, inter alia, forced association. The admissibility of infringements must be evaluated in accordance with the criteria contained in Article 11(2) of the ECHR. If national law fails in that regard, according to the Court the relevant Contracting State can be summoned to appear before the Court. In this manner the State is always involved in concrete cases, even if only by means of the involvement of the national court in a dispute.[18]

This particularly has consequences if pursuant to the law (including the constitutional law) of a Contracting State, the ECHR forms part of the State’s national legal system. A Court that establishes that there is an infringement of a fundamental right, in this case negative freedom of association, must investigate whether the infringement is one that is ‘provided for by law’ within the meaning of Article 11(2) of the ECHR. If that question can be answered affirmatively, the question comes up whether that limitation of the enjoyment of a fundamental right is necessary in a democratic society in order to protect one of the interests listed in Article 11(2). [19] The proportionality of the limitation in relation to maintaining a related interest plays an important role in testing the necessity. If the intended result can be realised in another, less intrusive manner, the Court will not be likely to find that the limitation is justified.

The legal import of Article 11(2) includes not only the law in a formal sense, but also actual legislation and possibly unwritten law. It is required that the rule containing the limitation be general in its effect, that it be sufficiently known, and that the extent of the limitation be sufficiently clear.[20] A limitation that is too general in nature is not admissible, in part due to the proportionality requirement. In my opinion, the latter implies that invocation of a general concept such as freedom of contract could never justify an infringement of freedom of association, including negative freedom of association. In this view, a contractually imposed forced association would be contrary to Article 11 of the ECHR a fortiori if there were no explicit legislation allowing it.

Perhaps it must be assumed that the nature of the fundamental right does not oppose every form of obligation to join based on contract law. That possibility must be evaluated based on the nature of the right to freedom of association.[21] The case law from the Court leaves (some) leeway for that approach, since the Court deemed that not every form of compulsion is inadmissible. I have some doubts about the soundness of that reasoning, since the Court’s considerations seem to relate primarily to the nature of the consequences of not enforcing a membership requirement. Thus, a mild form of insistence or stimulation to join a private law organisation need not be contrary to freedom of association. Whenever there is such a forced association, Article 11 of the ECHR remains applicable.

It can be inferred from the Court’s judgments that it will assume that there has been an infringement of Article 11(1) if there is a compelling obligation. That will be the case if the substantial interests of an interested party are involved, such as loss of work or the ability to conduct a certain business or exercise a certain profession. If such an interest is involved, the Court will not be likely to assume that there is no coercion. Thus, the fact that someone voluntarily joined an organisation (or if it in any event cannot be established that it was not involuntary) does not mean that the right to negative freedom of association was not infringed,

since it is only a matter of speculation he would have done so in the absence of the membership condition…[22]

It thus comes down to the question whether it can be assumed that the relevant person would have become a member even without the coercion, apart from the fact that coercion to continue the membership would be an infringement in and of itself.[23]

The Court thus considers the voluntary nature to be of primary importance, rather than the mere fact that the relevant association was joined. The fact that there is the possibility of an exemption, for example for religious reasons, does not detract from the inadmissibility of actual coercion, such as the threat of dismissal, because the requirement to join is ultimately predominant.[24]

I believe that following this line of reasoning, contractual provisions that require joining a union, association (including an association that promotes the interests of its members) or cooperation on pain of termination of the contract, must suffer the same fate, since that would also involve a contractual obligation to join that can be qualified as a serious infringement of Article 11 of the ECHR – apart from the fact that there is no legal basis for such an obligation – taking into consideration the significant interests that are involved in maintaining the contract.[25] Forfeiture of a fine or penalty would also be impermissible in light of negative freedom of association, because it is derived from the obligation and not the voluntary nature of joining.[26]

If one accepts that fundamental rights pursuant to the ECHR, such as Article 11 of the ECHR, apply to purely private law relationships, the question of what (actual) private law consequences that will have arises. The answer to that question largely depends on the applicable private law system; a generally applicable answer cannot be given.

Notes

[1] Cf. European Commission of Human Rights, 6 July 1977, Dec, Adm. Com. Ap. 6094/73, D & R 9, p. 5(7).

[2] For a detailed explanation of these terms, see E. Denters & W.J.M. van Veen, IJNL, Vol. 1, Issue 2, December 1998.

[3] Id.

[4] See, e.g., Le Compte et al. v. Belgium, judgment of 23 June 1981, Series A, no. 43.

[5] In this context, see, e.g., F.G. Jacobs, The European Convention on Human Rights, Claredon Press, Oxford, 1975, pp. 157-58.

[6] European Court of Human Rights, 13 August 1981, A.44 (1981).

[7] European Court of Human Rights, 20 June 1993, NJ 1994, 223, m.nt. EAA.

[8] Those reasons included an objection to becoming a member of a trade union that was intolerant, which appeared from the fact that it was a party to a ‘closed-shop’ scheme that required employees to become members on pain of losing their livelihood.

[9] European Court of Human Rights, 13 August 1981, A.44 (1981), par. 55.

[10] The Court did not address whether Frami is a trade union since freedom of association includes the right to form trade unions.

[11] European Court of Human Rights, 20 June 1993, NJ 1994, 223, m.nt. EAA, par. 35.

[12] See id, conclusion. See also European Court of Human Rights, 29 April 1999, NJ 1999, 649 (Chassagnou et al. v. France, in which this position was reaffirmed).

[13] As in the judgment in the Young, James and Webster case, the Court determined that freedom of conscience and freedom of speech, as protecting under the treaty, were involved in the sense that freedom of association served, inter alia, the fundamental rights contained in Articles 9 and 10. See id., par. 37.

[14] Cf. E.A. Alkema in his annotation to the judgment, NJ 1994, p. 951.

[15] Chassagnou et al. v. France, Judgment of 29 April 1999, Appl. nos. 25088/94, 28331/95 and 28443/95.

[16] NJ 1994, p. 223.

[17] See paragraph 49. See also Sibson v. UK, 20 April 1993, A 258-A. Cf. European Commission for Human Rights, 3 May 1984, NJ 1984, 268 m.nt. E.E.A.; for earlier decisions of the Commission in this regard, see Van Dijk/Van Hoof, n.1 supra, pp. 435, 458.

[18] See also European Commission for Human Rights, appl. 1102/84, D & R 41, pp. 264-71 (regarding Limburgse Immigratie Stichting).

[19] Article 11(2) of the ECHR lists national security, territorial integrity, public safety, interests of third parties, prevention of riots and offences and protection of health and public decency.

[20] See, e.g., Sunday Times v. UK, 26 April 1979, Series A, No. 30, 2 EHRR (1979-80), par. 49; Silver et al. v. UK, 25 March 1983, Series A, No. 61, 5 EHRR (1983), par. 87-88; Malone v. UK, 2 August 1984, Series A, No. 82, 7 EHRR (1985), par. 66; Groppera Radio AG et al. v. Switzerland, 28 march 1990, Series A, No. 173, 12 EHRR (1990), par. 68; Autronic AG, 22 May 1990, Series A, No. 178, 12 EHRR (1990), par. 57.

[21] Cf., e.g., the ius non evocando, with respect to which the European Commission of Human Rights assumed, with respect to an arbitration clause, that the fundamental right did not oppose contractual limitations thereon. Jaarboek 1962, p. 95-97.

[22] European Court of Human Rights, 30 June 1993, NJ 1994, 223 (Sigurdur A. Sigurjónsson v. Iceland), par. 36.

[23] Sigurdur A. Sigurjónsson v. Iceland, n. 24 supra.

[24] Such a possibility of an exemption was also involved in the Young, James and Webster case, but did not detract from the inadmissibility. See also M. de Blois, The ‘Closed Shop’ case, NJCM 1982, p. 400.

[25] If the delivery has taken place in order to fulfill a conditional obligation, fulfillment of the condition will have an effect under property law pursuant to Article 3:84(4) of the Dutch Civil Code. In other cases, dissolution of the contract will lead to an obligation to undo, which upon purchase in fact comes down to a restitution obligation.

[26] Cf. section 3.2, conclusion, supra.