Information Note on the Court’s case-law 191

December 2015

Mytilinaios and Kostakis v. Greece - 29389/11

Judgment 3.12.2015 [Section I]

Article 11

Article 11-1

Freedom of association

Refusal to grant wine growers licence to produce wine owing to exclusive rights of union of wine producing cooperatives: violation

Facts – The applicants are winegrowers and members of the Samos Union of Vinicultural cooperAtives (“t he Union”), which was created in 1934 and has exclusive rights to produce and sell Samos muscat wine. All the local vinicultural cooperatives have compulsory membership of the Union.

Being unable to freely dispose of and sell their muscat wine production, the applicants sought permission from the Union on a number of occasions to withdraw their membership of it.

In November 2005 the applicants lodged an application with the Supreme Administrative Court for judicial review of the tacit refusal by the authori ties to issue them with a winemaking licence. That refusal was based on the provisions of “Compulsory Law” no. 6085/1934 which precluded the granting of a winemaking licence to isolated individuals. The Union intervened in the proceedings, seeking to have the application for judicial review dismissed. In November 2010 the Supreme Administrative Court dismissed it.

Law – Article 11

(a) Applicability – Two of the criteria established in the Court’s case-law for determining whether an association had to be re garded as private or public were not met in the present case, namely, integration within the structures of the State and the existence of administrative, rule-making or disciplinary prerogatives. Accordingly, the Union could not be regarded as a public ass ociation for the purposes of the Convention and Article 11 was applicable in the present case.

(b) Merits – The tacit refusal of the national authorities, upheld by the Supreme Administrative Court, to grant the applicants a winemaking licence on the grounds that the Union had exclusive rights to produce and market Samos muscat wine was an “interference” with their “negative” freedom of association.

That interference had been prescribed by Law no. 6085/1934 and pursued the “legitimate aim” of protecting, in the general interest of the island of Samos, the quality of a unique wine in Greece and the revenue of t he island’s winegrowers, and thus the rights and freedoms of others.

The Court found that the distinction made by the Supreme Administrative Court in its judgment of November 2010 between winegrowing, which was unrestricted, and producing and marketing win e, for which membership of a cooperative was compulsory, was an artificial one and in reality excluded any form of autonomy or independence of the winegrowers concerned.

In 1934 the winegrowers from the island of Samos had been keen to form cooperatives of compulsory membership in order to protect the quality of the grape variety and develop cultivation of the grapevines. Those reasons appeared of little relevance, however, in the current context. The total number of winegrowers was now 2,847; Samos muscat wine had received the controlled designation of origin and the label of quality wine produced in a specific region; and the export market was very buoyant, amounting to 80% of annual production which was approximately 7,000 metric tons.

The minority of the Supreme Administrative Court judges had observed in the judgment of November 2010 that the aims pursued by Law no. 6085/1934 could be achieved by other means, such as quality controls carried out by State or other certification bodies.

Furthermore, in 1993 provision had been made in Law no. 2169/1993 for the possibility for cooperatives with compulsory membership to become – on their initiative – free cooperatives. Accordingly, the national authorities had considered that the quality of the wine produced on the island of Samos and the concern to guarantee winegrowers fair and reasonable prices for the grapes produced was not likely to suffer in the event that the nature of the membership changed. The introductory report to Law no. 4015/20 11 indicated that an independent and autonomous agriculturalist, who as owner and producer asserted his or her right to prosperity, was not incompatible with the idea of a cooperative association.

Consequently, by obliging winegrowers to hand their entire production of wine over to the cooperatives Law no. 6085/1934 had made the most restrictive choice regarding negative freedom of association.

Regard being had to the particular circumstance of the case, the refusal by the national authorities to grant the applicants a winegrowing licence went beyond what was necessary to strike a fair balance between the conflicting interests and could not be regarded as proportionate to the aim pursued.

Conclusion : violation (unanimously).

Article 41: EUR 6,000 each in res pect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Chassagnou and Others v. France [GC], 25088/94, 28331/95 and 28443/95, 29 April 1999, Information Note 5 )

© Co uncil of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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