THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43311/98 by Erwin KÖLL against Austria

The European Court of Human Rights (Third Section) , sitting on 4 July 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch ,

Mr B. Zupančič ,

Mrs H.S. Greve ,

Mr K. Traja ,

Mrs E. Steiner, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 24 July 1998 and registered on 4 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1958 and living in Innsbruck.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant is a lawyer practising in Innsbruck (Austria). On 25 September 1996 he filed a request with the Tyrol Regional Government Office ( Amt der Landesregierung ) requesting a declaration that he was not a member of the local Tourism Federation ( Tourismusverband ). According to the Regional Tourism Act ( T ourismusgesetz ), the applicant had been considered to be a compulsory member of the Innsbruck Tourism Federation and had therefore been obliged to pay an annual contribution to that Federation. The applicant submitted in his request that, as a practising lawyer, he had no direct or indirect interests in Tyrol tourism.

On 2 April 1997, as the Tyrol Government Office had not reacted to his request, the applicant filed an application for a transfer of jurisdiction ( Devolutionsantrag ) with the appeal board established under the Tourism Act. On 4 April 1997 the appeal board requested the applicant to supplement his request by stating for what reasons he considered that he had no interest whatsoever in Tyrol tourism. In his statement the applicant explained that most of his clients had nothing to do with the tourist industry.

On 12 May 1997 the appeal board found that the applicant was a member of the Tourism Federation. Referring to the case-law of the Constitutional Court and Administrative Court, according to which lawyers were deemed to benefit from tourists in certain regions because they created more business for them, the board found that the applicant had not shown that in his particular case he had not benefited at all from the tourism in the region.

On 25 June 1997 the applicant filed a complaint with the Constitutional Court claiming that the compulsory membership of the Tourism Federation violated his right not to be member of an association, as guaranteed by Article 11 of the Convention. On 27 November 1997 the Constitutional Court refused to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. On 9 February 1998 the Administrative Court requested the applicant to supplement his complaint. On 26 May 1998 the Administrative Court discontinued the proceedings as the applicant had failed to comply with the court’s request.

B. Relevant domestic law

The Tyrol Regional Tourism Act provides for the establishment of local Tourism Federations with the statement that “all entrepreneurs of a community form a Tourism Federation” (Section 1 § 1). Section 1 § 1 further provides that “Tourism Federations are public law institutions”. According to Section 2 § 1 of the Tyrol Tourism Act, compulsory members of a Tourism Federation are those entrepreneurs who are economically, directly or indirectly, interested in Tyrol tourism and who have a permanent establishment or place of business in the area of the Tourism Federation. This compulsory membership starts with the taking up of a business according to Section 2 § 1 and ends with its termination (Section 2 § 2). The Regional Government Office ( Amt der Landesregierung ) is competent to take a decision on the compulsory membership of an entrepreneur upon his request, that of the chairman ( Obmann ) of a Tourism Federation or ex officio (Section 2 § 3).

According to Section 30 § 1 members are liable to compulsory contributions, which are calculated on the basis of their taxable turnover. The amount of the contribution due is fixed by the Office of the Regional Government on the basis of the member’s turnover tax orders which are furnished by the Federal Tax Authorities. (Sections 36 and 37). The Office of the Regional Government, which collects the contributions, has to apply the Regional Tax Code (Section 38 § 1). Against contribution orders issued by the Office of the Regional Government an appeal lies with an appeals board (Section 38 § 2), which is composed of civil servants from the Office of the Regional Government, the Regional Chamber of Commerce, the Regional Chamber of Labour and the Regional Chamber for Agriculture.

The tasks of a Tourism Federation are the promotion of the interests of local tourism, inter alia, by developing forms of tourism linked to local specificity, by promoting the understanding of the economic importance of tourism, and by supporting and training the members of the Tourism Federation (Section 4).

Sections 39 to 42 provide for the control of the Tourism Federations by the Regional Government. The Regional Government may, inter alia , request any information from a Tourism Federation, inspect its files and accounts and send delegates to plenary sessions, to sessions of the supervisory board and to sessions of the management board (Section 39 § 2). The Regional Government may also quash any decision of a Tourism Federation that is contrary to the law (Section 39 § 4).

COMPLAINT

The applicant complains under Article 11 of the Convention that his compulsory membership of the Innsbruck Tourism Federation is contrary to his right to freedom of association. In particular the applicant claims that his right not to be member of an association had been violated.

He also submits that he did not supplement his complaint to the Administrative Court because such a complaint would have been without any prospects of success. His complaint about an infringement of Article 11 of the Convention was a matter of constitutional law for which only the Constitutional Court was competent.

THE LAW

The applicant complains that the compulsory membership of the Tourism Federation violates his right not to be member of an association. He relies on Article 11 of the Convention which reads insofar as relevant as follows:

“1. Everyone has the right ... to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society 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. ...”

The Court observes that th e Administrative Court discontinued the proceedings lodged by the applicant because he had failed to comply with an order requesting him to supplement his complaint. The applicant argues that, in the circumstances of the case, a complaint to the Administrative Court was without any prospects of success. The Court considers that it is not necessary to decide whether or not the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention because the application is, in any event, inadmissible for the following reasons.

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 ( Sigur ð ur 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 Sigur ð ur A. Sigurjónsson judgment , op.cit ., p. 13, § 31; Sigur ð ur 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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President