Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14596/89

by Franz Jakob WEISS

against Austria

The European Commission of Human Rights sitting in private

on 10 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 January 1989

by Franz Jakob WEISS against Austria and registered on 30 January 1989

under file No. 14596/89;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, living in Krumpendorf.

He is represented before the Commission by Mr. G. Stanonik, a

lawyer practising in Salzburg.

The facts of the present case, as submitted by the applicant,

may be summarised as follows.

On 1 July 1980 the applicant was granted a licence to run a

restaurant (Gasthof) in Krumpendorf. According to Section 3 (2) of

the Chamber of Commerce Act (Handelskammergesetz) in connection with

the relevant provisions of the Trade Sections Decree (Fachgruppen-

ordnung) the applicant became automatically and obligatorily a member

of the Hotel and Accommodation Trade Section (Hotel- und Beherbergungs-

betriebe) of the Carinthian Chamber of Trade (Fachgruppe der Kammer

der gewerblichen Wirtschaft).

On 3 September 1980 the applicant received a prompt note

reminding him that he owed an inscription fee (Einverleibungsgebühr)

of 2,500 AS. The applicant replied that he had not yet received any

order to pay the fee. He requested to be given a detailed decision

about the nature and extent of his obligation to share the costs of

the Chamber of Trade. This decision, given by his Section on

15 September 1981, was quashed by the Carinthian Chamber of Trade

on 21 December 1981.

The applicant's request was then rejected by his Section on

10 February 1982 for having been lodged out of time. His appeal was

rejected by the Carinthian Chamber of Trade on 18 August 1982 and by

the Federal Chamber of Trade (Bundeskammer der gewerblichen

Wirtschaft) on 4 October 1982. The latter decision was however

quashed by the Administrative Court (Verwaltungsgerichtshof) on

19 November 1985.

On 5 June 1986 the Hotel and Accommodation Trade Section of

the Carinthian Chamber of Trade again requested the payment of the

inscription fee. On 3 November 1986 the applicant, who had again

asked for a decision on the nature and extent of his obligations, was

ordered by the Hotel and Accommodation Trade Section to pay a fee in

the amount of 2,500 AS. Invoking, inter alia, Article 11 of the

Convention, the applicant lodged an appeal (Berufung), which was

rejected by the Carinthian Chamber of Trade on 20 January 1987. A

further appeal to the Federal Chamber of Trade was partly granted on

4 March 1987 in that the fee was reduced to 1,500 AS but the remainder

of the appeal was rejected.

The applicant then lodged a constitutional complaint to the

Constitutional Court and also appealed to the Administrative Court.

The Constitutional Court (Verfassungsgerichtshof) referred the matter

to the Administrative Court on 26 February 1988. By decision of

14 June 1988 (served upon the applicant's lawyer on 19 July 1988) this

Court rejected the appeal as being ill-founded. It stated that the

legal provisions from which the applicant's membership and obligation

to pay a fee resulted were unobjectionable and the order complained of

therefore lawful as the applicant had been granted a trade licence and

the conditions for the imposition of the fee were therefore given.

Relevant domestic law

The relevant provisions of the Chamber of Commerce Act read

as follows:

"1st Chapter

Section 1 (Objectives)

(1) The Chambers of Trade (Regional Chambers, Federal Chamber)

serve to represent the common interests of ... juridical

persons constituting an independent trade ...

(2) The trade organisations formed in accordance with

this Act are public law institutions (Körperschaften des

öffentlichen Rechts). Regional Chambers ... are entitled

to use the Federal coat of arms.

Section 3 (Competence, Seat, Members)

(1) ...

(2) Members of each Chamber of Trade are all physical

and juridical persons ..., which are authorised

independently to carry out a trade ...

Section 4 (Tasks in the independent sphere of activity)

(1) The Chambers of Trade have an independent and

an attributed sphere of activity. Each Chamber has,

within its independent sphere of activity,

a) to deal with all matters related to the common

economic interests of the enterprises grouped

within it

b) to deal with and protect the labour law interests

of its members, to see to it that industrial

peace is maintained and to take all adequate

measures to further this aim ...

3rd Chapter

Section 29 (Activity and members of Trade Sections)

(1) Trade Sections represent the trade interests of their

members. Trade matters (Section 41 (1)) are in particular:

a) the furtherance of economic, social and humanitarian

concerns of its members, the encouragement of a

corporate spirit, the maintenance and amelioration of

professional standards;

b) the elimination and prevention of customs, practices

and innovations which hamper fair competition among

members;

c) the furtherance of professional education and

training ...

4th Chapter

Section 57 (b) (Inscription fees)

(1) Inscription fees become due when the conditions of

Section 3 (2) are given.

(2) The normal fee rate is a minimum of 500 AS and

a maximum of 5000 AS ...

Section 67 (Fines)

(1) Chamber members (Section 3 (2)) who do not reply

or reply in a belated, incomplete or incorrect manner

to requests for information, reports or indications

made by a Chamber of Trade, a Trade Section or a

Trade Association, may be fined in the amount of

10 to 2,500 AS."

COMPLAINTS

The applicant complains of his obligatory membership of the

Chamber of Trade and of his obligation to pay an inscription fee. He

submits that the control and supervision of trade as to compliance

with e.g. food and hygiene regulations is carried out by the police

while tasks of the Chamber of Trade are limited to matters of

common interest, described in Austria by the term "social

partnership" (Sozialpartnerschaft), i.e. matters that could as well be

taken care of by a private organisation.

He alleges a violation of Article 11 of the Convention and of

Article 1 of Protocol No. 1, also read together with Article 14 of the

Convention.

THE LAW

The applicant complains that his compulsory membership

in a section of the Carinthian Chamber of Trade is contrary to his

right to freedom of association as guaranteed by Article 11 (Art. 11)

of the Convention.

Paragraph 1 of this provision reads as follows:

"1. Everyone has the right to freedom of peaceful assembly and

to freedom of association with others, including the right to

form and join trade unions for the protection of his interests."

The Commission recalls the case-law of the Convention organs

according to which Article 11 (Art. 11) concerns the right to form and join

private organisations; institutions of public law do not constitute

associations within the meaning of this provision (cf. No. 8734/79,

Dec. 12.3.81, D.R. 26 p. 145 at p. 154).

The Commission notes that the Chambers of Trade in Austria

have not been founded as professional organisations by private

individuals. They have been created by the Chamber of Commerce Act.

According to that Act, they are public law institutions

(Körperschaften öffentlichen Rechts). Their functions, conferred upon

them by the Act, include the elimination and prevention of unfair

trade practices and the furtherance of professional education and

training. They thus exercise, by virtue of the relevant legislation,

in areas of public interest a form of public control over the members

of the trades to which the Chamber of Commerce Act applies.

In these circumstances the Commission concludes that the

Chambers of Trade, by virtue of their legal nature and their public

functions, cannot be considered as associations within the meaning of

Article 11 (Art. 11) of the Convention (cf. Eur. Court H.R., Le

Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A

no. 43, p. 26 et seq., paras. 63 - 65).

It is therefore not necessary to determine the question

whether the right to freedom of association under Article 11 (Art. 11)

includes, by implication, a "negative right" not to be compelled to

join an association (cf. Eur. Court H.R., Young, James and Webster

judgment of 13 August 1981, Series A no. 44, p. 21, para. 51).

The applicant does not allege that he is prevented from

joining any association falling within the scope of application of

Article 11 (Art. 11). His complaint is based solely on the compulsory

membership in the Carinthian Chamber of Trade. Having regard to the

foregoing considerations, it follows that this complaint is

incompatible ratione materiae with the provisions of the Convention

and must be rejected in accordance with Article 27 para. 2 (Art. 27-2).

As the applicant's membership of the Carinthian Chamber of

Trade is not in breach of the provisions of the Convention his

obligation to pay an inscription fee is justified under paragraph 2 of

Article 1 of Protocol No. 1 (P1-1). Furthermore, as the applicant has not

shown that other businessmen in a comparable situation do not have to

pay the fee in question, no issue under Article 14 (Art. 14) of the

Convention arises.

It follows that there is no appearance of a violation of these

provisions. These complaints must accordingly be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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WEISS v. AUSTRIA

WEISS v. AUSTRIA

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