In the case of Sigurdur A. Sigurjónsson v. Iceland*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges: Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr B. Walsh,
Mr R. Macdonald,
Mrs E. Palm,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 February and
24 June 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 24/1992/369/443. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court on 10 July 1992 by the
European Commission of Human Rights ("the Commission"), within
the three-month period laid down in Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 16130/90) against the Republic of Iceland
lodged with the Commission under Article 25 (art. 25) by
Mr Sigurdur A. Sigurjónsson, an Icelandic citizen, on
22 December 1989. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Iceland
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether or not the facts of the case disclosed a breach by
the respondent State of its obligations under Article 11
(art. 11) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr Thór Vilhjálmsson, the elected judge of Icelandic nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 26 September
1992 the President drew by lot, in the presence of the Registrar,
the names of the seven other members, namely Mr F. Matscher,
Mr B. Walsh, Mrs E. Palm, Mr J.M. Morenilla, Mr F. Bigi,
Mr G. Mifsud Bonnici and Mr J. Makarczyk (Article 43 in fine of
the Convention and Rule 21 para. 4) (art. 43). Subsequently,
Mr Matscher, who was unable to attend, was replaced by
Mr R. Macdonald, substitute judge (Rules 22 para. 1 and
24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Icelandic Government ("the Government"), the Delegate of
the Commission and the representative of the applicant on the
organisation of the proceedings (Rules 37 para. 1 and 38). In
accordance with the order made in consequence, the Registrar
received the applicant's memorial on 1 December 1992 and the
Government's memorial on 15 December. On 14 January 1993 the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing.
5. On 13 January 1993 the Commission had filed a number of
documents which the Registrar had sought from it on the
President's instructions. On various dates between 16 February
and 5 March the Registrar received several documents from the
Government and the applicant, as well as further particulars of
the latter's claims under Article 50 (art. 50).
6. As directed by the President, the hearing took place in
public in the Human Rights Building, Strasbourg, on
22 February 1993. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr Thorsteinn Geirsson, Secretary General of the Ministry
of Justice and Ecclesiastical Affairs, Agent,
Mr Gunnlaugur Claessen, Solicitor-General of the
Government of Iceland, Counsel,
Mr Markús Sigurbjörnsson, University Professor, Adviser;(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr Jón Steinar Gunnlaugsson, Supreme Court advocat Counsel.
The Court heard addresses by Mr Thorsteinn Geirsson and
Mr Gunnlaugur Claessen for the Government, by Mr Danelius for the
Commission and by Mr Jón Steinar Gunnlaugsson for the applicant,
as well as replies to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
7. Mr Sigurdur A. Sigurjónsson is an Icelandic national. He
is a taxi driver and resides in Reykjavik.
8. On 24 October 1984 he was granted a licence to operate a
taxicab by the "licence issuers" (a body later named the
Committee for Taxicab Supervision - the "Committee"; see
paragraphs 18 and 20 below). The decision was taken under Law
no. 36/1970 on Motor Vehicles for Public Hire ("the 1970 Law")
and Regulation no. 320/1983 ("the 1983 Regulation") issued by the
Minister of Transport under Article 10 of the Law (see
paragraph 18 below). The applicant had applied for a licence using a printed
form addressed to the Frami Automobile Association ("Frami").
This standard form contained a statement to the effect that the
applicant was aware of the obligation to pay membership fees to
Frami on becoming a member. When he was granted the licence, the applicant undertook
to observe the conditions provided for in the 1983 Regulation,
on the understanding that a failure to do so could lead to its
suspension or revocation. One such condition was that he apply
for membership of Frami (Article 8 of the 1983 Regulation), which
he had done on 26 September 1984.
9. After joining Frami, the applicant paid membership fees
to the association until August 1985, when he stopped doing so.
As a result, Frami advised him on 5 February 1986 that it
intended to exclude him and his taxicab from taxi station
services until the fees were paid (Article 27 of Frami's Articles
of Association).
In reply, the applicant, by letter of 14 February 1986,
indicated that he did not wish to be a member of Frami; he
refused to accept the obligation to remain a member of and to pay
membership fees to it. Furthermore, he explained that he had
accepted the licence "without first ascertain[ing] [his] legal
position with regard to membership" because he had lacked
sufficient funds to take the necessary steps. Also he had
preferred to avoid time-consuming litigation which would have
delayed the granting of the licence.
10. On 30 June 1986 the Committee upheld a request by Frami
for the revocation of the applicant's licence, especially because
he had ceased paying membership dues.
11. In a letter of 1 July 1986 to the Ministry of Transport
("the Ministry") the applicant protested against the revocation
of his licence and requested the suspension of the revocation
pending the decision of a court action which he intended to take.12. In its reply dated 17 July 1986, the Ministry, referring
to Articles 7 and 12 of Regulation no. 293/1985 (see
paragraph 18 below), confirmed the revocation. A copy of this
letter was addressed to the Reykjavik Chief of Police.
13. By letter of 28 July 1986, the applicant's lawyer
informed the Chief of Police that the applicant considered the
revocation unlawful; he intended to bring the matter before the
courts and asked the police not to interfere with his taxi
business. However, on 1 August 1986, while driving his taxi, the
applicant was stopped by the police, who removed the plates
identifying his vehicle as one for public hire.
14. On 18 September 1986 the applicant instituted proceedings
against both the Committee and the Ministry before the Civil
Court of Reykjavik, seeking a declaration that the revocation was
null and void.
The Civil Court dismissed his claim on 17 July 1987.
15. The applicant appealed to the Supreme Court.
By judgment of 15 December 1988, the Supreme Court,
sitting in plenary with seven members, unanimously rejected his
claim that, in view of Article 73 of the Constitution, he could
not be obliged to remain a member of Frami. In its opinion, the
drafting history of this Article showed that it was intended to
guarantee only a right to "form associations", not a right to
remain outside one. The applicant had not made out his
allegation that, if construed in this manner, Article 73
conflicted with the relevant provisions of international
instruments. Finally, it could not be inferred from the Article
that a business licence could not lawfully be made conditional
upon membership of an association.
On the other hand, the Supreme Court, by a majority of
four, annulled the revocation of the applicant's licence. It
found that the provision in the 1983 Regulation imposing
trade-union membership as a prerequisite for granting a licence
(see paragraph 8 above) lacked a statutory basis.
16. Following the above-mentioned ruling by the Supreme
Court, the Althing (the Icelandic Parliament) enacted new
legislation - Law no. 77/1989 on Motor Vehicles for Public Hire
("the 1989 Law") - which made operating licences conditional upon
trade-union membership. This entered into force on 1 July 1989
(see paragraph 18 below).17. In a letter to Frami dated 4 July 1989, a copy of which
was transmitted to the Ministry, the applicant stated that, in
the light of the new legislation, he had no choice but to be a
member of the association and that he therefore agreed to pay
membership fees. At the same time he stressed that membership
was contrary to his own wishes and interests; not only did
Frami's Articles contain provisions contrary to his political
opinions, but the association also used the revenue from
membership fees to work against his interests. In addition, he
maintained that the new legislation providing for obligatory
membership was incompatible with the Convention and expressed his
intention to pursue the matter before the Convention
institutions.
II. Relevant domestic law and practice
A. Introduction
18. At the time when the applicant was granted a taxicab
licence, such licences were governed by the 1970 Law on Motor
Vehicles for Public Hire and the 1983 Regulation. The latter was
subsequently amended by Regulation no. 293/1985 ("the 1985
Regulation"): the body previously called the "licence issuers"
was thereafter to be known as the Committee for Taxicab
Supervision (see paragraph 20 below). In 1989 the 1970 Law and the 1985 Regulation were
replaced by the 1989 Law on Motor Vehicles for Public Hire and
Regulation no. 308/1989 ("the 1989 Regulation"). The applicant's
original complaint to the Commission was concerned only with the
situation after the entry into force of the 1989 legislation on
1 July 1989 (see under the heading "Complaints", in Appendix II
of the Commission's report). B. Organisation and administration of licences to operate a
taxicab19. Under Article 4 of the 1989 Law, the Ministry may, at the
request of a trade union (stéttarfélag) of automobile drivers and
on the recommendation of the town council and the regional board,
limit the number of motor vehicles for public hire within the
trade union area.
Restrictions on the number of taxicabs are set out in
Article 8 of the 1989 Regulation which provides, inter alia, that
within Frami's area, which comprises Reykjavik and six
surrounding communities, the number of taxicabs is to be limited
to 570. Such limitations are to be effected by the issuing of
licences, each licence-holder being required, among other
conditions, to own a passenger car and to use it as a taxi
himself as his main occupation (Article 7 of the 1989 Law and
Article 8 of the 1989 Regulation). Taxi business within the area
in issue is to be carried on from a taxi station approved by the
municipal council (Article 2 of the 1989 Law).
20. In a trade-union area where limitations have been placed
on the number of vehicles for public hire, a Committee for
Taxicab Supervision composed of three members appointed by the
Minister of Transport is set up. Two of the members are
nominated; one by the relevant trade union, the other by the
municipality. The third member chairs the Committee (Article 10
of the 1989 Law). The Committee adopts its own rules of
procedure, subject to endorsement by the Ministry; it takes its
decisions by a majority and reports annually to the Ministry
(Article 10 of the 1989 Law and Article 9 of the 1989
Regulation).
The Committee's task is to "supervise and control",
within the area of the trade union in question, the
implementation of laws and regulations relating to the operation
of vehicles for public hire; the issuing and revocation of
operating licences; and the manner in which taxi stations provide
their services (Article 10 of the 1989 Law).
21. Frami (until 1959 named Hreyfill) was formed in 1936 by
professional automobile drivers in Reykjavik. Its Articles,
which may be amended by the association itself (clause 32 of the
Articles), are not subject to governmental approval. According
to clause 2 of the Articles, the purpose of the association is:
(1) to protect the professional interests of its members and
promote solidarity among professional taxicab drivers; (2) to
determine, negotiate and present demands relating to working
hours, wages and rates of its members; (3) to seek to maintain
limitations on the number of taxicabs and (4) to represent its
members before the public authorities.
The Articles are currently under revision.
22. Under the 1989 rules, associations such as Frami have
certain administrative functions, namely:
(a) they propose such limitations as mentioned in
paragraph 19 above (Article 4 of the 1989 Law);
(b) they serve as a depository for licences (Article 13
of the 1989 Regulation);
(c) they approve the suitability of vehicles for use as
taxicabs (Article 14 of the 1989 Regulation);
(d) within narrow limits specified in the 1989 rules,
they regulate, and decide on requests for, temporary exemption
from the requirement that the licence-holder personally operate
his own taxicab (Article 9 of the 1989 Law and Article 16 of the
1989 Regulation).
23. In addition to the above, according to material submitted
by the Government, Frami carries out the following tasks:
(a) it supervises the performance of taxi services;
(b) it reports to the Committee instances of failure by
a licence-holder to observe the licence conditions;
(c) it regulates the operation of taxicabs to ensure that
the level of services corresponds to the significantly higher
demand at weekends;
(d) it monitors the fulfilment by licence-holders of
registration and insurance requirements and payment by them of
requisite charges;
(e) it fixes the rates for taxi services, subject to
approval by the price-control authorities.
Frami does not engage in collective bargaining on behalf
of its members and is therefore not affiliated to the Icelandic
Federation of Labour.
C. Obligation of membership
24. Article 5 of the 1989 Law provides that within a
trade-union area where a limitation on the number of vehicles for
public hire applies (see paragraph 19 above), operators of
vehicles of the same category are to be members of the same trade
union. If there is a trade union of taxicab operators for a
particular area, persons not possessing an operating licence are
prohibited from carrying out taxi services in that area.
Pursuant to Article 8 of the 1989 Law, an operating
licence may be granted only to a person who is a member, or has
applied for membership, of the relevant trade union. It follows
from Article 8 of the 1989 Regulation (see paragraph 19 above)
that Frami is the relevant association for taxi licence-holders
in Reykjavik. The membership condition continues to apply after
a licence has been granted.
25. In the case of violations by a licence-holder of laws or
regulations relating to motor vehicles for public hire, he may
receive an admonition from the Committee, his licence may be
suspended or, in the event of serious or recurring violations,
revoked by the Committee and the licence-holder may be liable to
pay a fine; if it is revoked, he may, on certain conditions,
reapply for a licence after five years (Articles 9 and 13 of the
1989 Law and Article 18 of the 1989 Regulation).
PROCEEDINGS BEFORE THE COMMISSION
26. In his application (no. 16130/90) lodged with the
Commission on 22 December 1989, Mr Sigurdur A. Sigurjónsson
alleged a violation of Article 11 (art. 11) of the Convention
(right to freedom of association) or, in the alternative,
Articles 9 (art. 9) (right to freedom of thought and conscience),
10 (art. 10) (right to freedom of expression) and 13 (art. 13)
(right to an effective remedy).
27. On 10 July 1991 the Commission declared the application
admissible.
In its report adopted on 15 May 1992 (Article 31)
(art. 31), the Commission expressed the opinion:
(a) by seventeen votes to one, that there had been a
violation of Article 11 (art. 11);
(b) unanimously, that it was not necessary to examine
separately whether there had been a violation of Articles 9 and
10 (art. 9, art. 10);
(c) unanimously, that there had been no violation of
Article 13 (art. 13).
The full text of the Commission's opinion and of the
dissenting opinion contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 264
of Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT
28. At the hearing on 22 February 1993, the Government
invited the Court to hold, as submitted in their memorial
of 15 December 1992, that there had been no violation of the
Convention in the present case.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 (art. 11)
29. The applicant alleged that the obligation incumbent on
him to be a member of Frami on pain of losing his licence
constituted a violation of Article 11 (art. 11) of the
Convention, which reads:
"1. Everyone has the right to freedom of peaceful
assembly and to freedom of association with others,
including the right to form and to 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. This Article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the
administration of the State." The Government disputed this contention, whereas the
Commission agreed.
A. The existence of an interference with a right guaranteed
by Article 11 (art. 11) 1. Whether Frami was an "association"
30. The Government contended that Frami was not a "trade
union", nor even an "association", within the meaning of
Article 11 (art. 11), but a professional organisation of a
public-law character. They invoked mainly the following
arguments:
(a) Although not established by law, Frami performed
certain functions which were provided for by law or had evolved
through practice and served the public interest no less than the
interests of its members (see paragraphs 22-23 above). Frami was
thus the lowest administrative level in a hierarchy comprising,
apart from Frami itself, the Committee and the Ministry.
(b) Frami was not an employees' organisation representing
its members in conflicts with their employer or engaging in
collective bargaining and was not affiliated to the Icelandic
Federation of Labour. Instead, it had a membership composed
principally of independent business operators and itself fixed
the rates for services, any changes in which were subject to the
approval of the price-control authorities.
31. The Court agrees with the applicant and the Commission
that the above-mentioned elements are not sufficient for Frami
to be regarded as a public-law association outside the ambit of
Article 11 (art. 11). Admittedly, Frami performed certain
functions which were to some extent provided for in the
applicable legislation and which served not only its members but
also the public at large (see paragraphs 22-23 above). However,
the role of supervision of the implementation of the relevant
rules was entrusted primarily to another institution, namely the
Committee, which in addition had the power to issue licences and
to decide on their suspension and revocation (see paragraphs 20
and 25 above). Frami was established under private law and
enjoyed full autonomy in determining its own aims, organisation
and procedure. According to its Articles, admittedly old and
currently under revision, the purpose of Frami was to protect the
professional interests of its members and promote solidarity
among professional taxicab drivers; to determine, negotiate and
present demands relating to the working hours, wages and rates
of its members; to seek to maintain limitations on the number of
taxicabs and to represent its members before the public
authorities (see paragraph 21 above). Frami was therefore
predominantly a private-law organisation and must thus be
considered an "association" for the purposes of Article 11
(art. 11).
32. It is not necessary to decide whether Frami can also be
regarded as a trade union within the meaning of Article 11
(art. 11), since the right to form and join trade unions in that
provision is an aspect of the wider right to freedom of
association, rather than a separate right (see, amongst other
authorities, the Schmidt and Dahlström v. Sweden judgment
of 6 February 1976, Series A no. 21, p. 15, para. 34).
2. Whether the right claimed by the applicant was
covered by Article 11 (art. 11)33. The Government, whilst accepting the view enunciated in
the Young, James and Webster v. the United Kingdom judgment of
13 August 1981 (Series A no. 44, pp. 21-22, para. 52) that the
negative aspect of the right to freedom of association does not
fall completely outside the ambit of Article 11 (art. 11),
contested that it extended as far as encompassing a right for the
applicant not to be a member of Frami. They contended that such
a negative right must be interpreted restrictively, bearing in
mind a passage in the travaux préparatoires cited in that
judgment, which showed that a general rule, modelled on
Article 20 para. 2 of the 1948 United Nations Universal
Declaration of Human Rights, that no one may be compelled to
belong to an association, had deliberately been omitted from the
Convention (ibid., paras. 51-52).
Furthermore, they maintained that the present case should
be distinguished from the 1981 case in view of the following
factors:
(a) In the latter instance, the applicants had been
employed for a considerable time when their employer concluded
the impugned agreements with the trade unions - with the effect
that they had to join one of the unions or lose their job. The
position in the proceedings now before the Court was quite
different in that the membership obligation existed before the
applicant was granted a licence in 1984, on which occasion he
unreservedly and without compulsion agreed to become a member of
Frami. Although the Supreme Court's December 1988 judgment (see
paragraph 15 above) could be taken to mean that he had not been
obliged under Icelandic law to join Frami in 1984, there was,
nevertheless, a de facto obligation so to do. Anyhow, the
applicant was entirely free either to accept this or to seek
employment in another field.
(b) His objections to membership of Frami could not be
compared to those of Mr Young and Mr Webster, both of whom had
been opposed to trade-union policies and activities and one of
them, to the unions' political affiliations.
(c) Whilst the organisation at issue here was
non-political, the 1981 case had concerned a type of association
- a trade union - which was frequently affiliated to political
parties or otherwise involved in politics and was thus likely to
interfere with its members' enjoyment of the Convention freedoms,
notably the freedom of opinion.
The Government submitted that should the Court find that
the applicant was protected by Article 11 (art. 11) it would mean
a step further than the Young, James and Webster judgment and the
above-mentioned passage in the travaux préparatoires would be
rendered nugatory.
34. Both the applicant and the Commission were of the view
that there had been an interference with his right to freedom of
association as covered by Article 11 (art. 11). The Delegate
stressed that the proper construction of the relevant extract of
the travaux préparatoires was that it fell to the Convention
institutions to determine whether such a negative right existed
under this Article (art. 11) and, if so, its scope.
35. As to the question of the general scope of the right in
issue, the Court notes, in the first place, that although the
aforementioned judgment took account of the travaux
préparatoires, it did not attach decisive importance to them;
rather it used them as a working hypothesis (see, for example,
pp. 21-22, paras. 52 and 55: "Assuming for the sake of argument
..." and "Assuming that Article 11 (art. 11) does not guarantee
the negative aspect of that freedom on the same footing as the
positive aspect ..."). Moreover, whereas the membership
obligation concerning Mr Young, Mr James and Mr Webster was based
on an agreement between their employer and the trade unions, that
of Mr Sigurdur A. Sigurjónsson was imposed by law. Under
Articles 5 and 8 of the 1989 Law and Article 8 of the 1989
Regulation, he had to be a member of a specified association
- Frami - in order to satisfy the licence conditions and it was
not possible for him to join or form another association for that
purpose. It was further provided that a failure to meet this
condition could entail revocation of the licence and liability
to pay a fine. Compulsory membership of this nature, which, it
may be recalled, concerned a private-law association, does not
exist under the laws of the great majority of the Contracting
States. On the contrary, a large number of domestic systems
contain safeguards which, in one way or another, guarantee the
negative aspect of the freedom of association, that is the
freedom not to join or to withdraw from an association.
A growing measure of common ground has emerged in this
area also at the international level. As observed by the
Commission, in addition to the above-mentioned Article 20
para. 2 of the Universal Declaration (see paragraph 33 above),
Article 11 para. 2 of the Community Charter of the Fundamental
Social Rights of Workers, adopted by the Heads of State or
Government of eleven member States of the European Communities
on 9 December 1989, provides that every employer and every worker
shall have the freedom to join or not to join professional
organisations or trade unions without any personal or
occupational damage being thereby suffered by them. Moreover,
on 24 September 1991 the Parliamentary Assembly of the Council
of Europe unanimously adopted a recommendation, amongst other
things, to insert a sentence to this effect into Article 5 of the
1961 European Social Charter (see Parliamentary Assembly,
Forty-third Ordinary Session (second part), 18-25 September 1991:
Official Report of Debates, Vol. II, p. 502, and Texts adopted
by the Assembly, Appendix to Recommendation 1168 (1991), p. 5).
Even in the absence of an express provision, the Committee of
Independent Experts set up to supervise the implementation of the
Charter considers that a negative right is covered by this
instrument and it has in several instances disapproved of
closed-shop practices found in certain States Parties, including
Iceland. With regard to the latter, the committee took account
of, inter alia, the facts of the present case (see Conclusions
XII-1, 1988-89, pp. 112-113, of the aforementioned committee).
Following this, the Governmental Committee of the European Social
Charter issued a warning to Iceland (by ten votes to four with
two abstentions; see the Governmental Committee's 12th report to
the Committee of Ministers of 22 March 1993, paragraph 113).
Furthermore, according to the practice of the Freedom of
Association Committee of the Governing Body of the International
Labour Office (ILO), union security measures imposed by law,
notably by making union membership compulsory, would be
incompatible with Conventions Nos. 87 and 98 (the first
concerning freedom of association and the right to organise and
the second the application of the principles of the right to
organise and to bargain collectively; see Digest of decisions and
principles of the said committee, 1985, paragraph 248).
In this connection, it should be recalled that the
Convention is a living instrument which must be interpreted in
the light of present-day conditions (see, amongst other
authorities, the Soering v. the United Kingdom judgment of
7 July 1989, Series A no. 161, p. 40, para. 102). Accordingly,
Article 11 (art. 11) must be viewed as encompassing a negative
right of association. It is not necessary for the Court to
determine in this instance whether this right is to be considered
on an equal footing with the positive right.
36. As to the specific circumstances of the case, the Court
is not persuaded by the Government's argument that an obligation
to join Frami already existed when the applicant obtained his
licence in 1984. No significant weight can be attached to the
fact that, before being granted the licence, he agreed to become
a member; it is a matter of speculation whether he would have
done so in the absence of the membership condition laid down in
the 1983 Regulation (see paragraph 8 above), which was later held
by the Supreme Court to lack a statutory basis (see paragraph 15
above), though his conduct since August 1985 suggests that he
would not (see paragraphs 9 to 17 above). Nor has it been
established that an obligation of membership arose for any other
reason. In fact, only when the 1989 Law entered into force on
1 July 1989 did it become clear that membership was a
requirement. The applicant has since been compelled to remain
a member of Frami and would otherwise, as was amply illustrated
by the revocation of his licence in 1986 (see paragraph 10
above), run the risk of losing his licence again. Such a form
of compulsion, in the circumstances of the case, strikes at the
very substance of the right guaranteed by Article 11 (art. 11)
and itself amounts to an interference with that right (see the
above-mentioned Young, James and Webster judgment, pp. 22-23,
paras. 55 and 57, and the Sibson v. the United Kingdom judgment
of 20 April 1993, Series A no. 258-A, p. 14, para. 29).
37. What is more, Mr Sigurdur A. Sigurjónsson objected to
being a member of the association in question partly because he
disagreed with its policy in favour of limiting the number of
taxicabs and, thus, access to the occupation; in his opinion the
interests of his country were better served by extensive personal
freedoms, including freedom of occupation, than State regulation.
Therefore, the Court is of the view that Article 11 (art. 11)
can, in the circumstances, be considered in the light of
Articles 9 and 10 (art. 9, art. 10), the protection of personal
opinion being also one of the purposes of the freedom of
association guaranteed by Article 11 (art. 11) (see the
above-mentioned Young, James and Webster judgment, pp. 23-24,
para. 57). The pressure exerted on the applicant in order to
compel him to remain a member of Frami contrary to his wishes was
a further aspect going to the very essence of an Article 11
(art. 11) right; there was an interference too in this respect.
The Government's argument that Frami was a non-political
association is not relevant in this regard.
3. Recapitulation
38. In the light of the above, the Court agrees with the
applicant and the Commission that the measures complained of
constituted interference with his right to freedom of association
as guaranteed by paragraph 1 of Article 11 (art. 11-1).
Such interference entails a violation of Article 11
(art. 11) unless it meets the conditions laid down in
paragraph 2 (art. 11-2).
B. Whether the interference was justified under paragraph 2
of Article 11 (art. 11-2)39. The applicant's complaint to the Strasbourg institutions
concerned only the period after 1 July 1989, when the 1989
legislation entered into force (see paragraph 18 above). It is
not contested that, after that date, the impugned membership
obligation was "prescribed by law" and pursued a legitimate aim,
namely as found by the Commission, the protection of the "rights
and freedoms of others". The Court sees no reason to disagree.
40. On the other hand, the applicant and the Commission
disputed the Government's view that the interference was
"necessary in a democratic society".
The Government, referring to their arguments set out in
paragraphs 30 and 33 above, maintained in particular that,
bearing in mind the status of the licence-holders as independent
business operators, membership constituted a crucial link between
them and Frami in that the latter would not be able to ensure the
kind of supervisory functions which it performed unless all the
licence-holders within its area were members. It would not be
desirable to confer such tasks on taxi stations as these were in
many instances owned by the licence-holders themselves and thus
lacked the necessary authority; doing so would not only require
legislative measures, but would also radically alter the
relationship between the stations and the licence-holders. Nor
would it be appropriate for the functions to be assumed by a
public authority, as having them carried out by Frami was more
expedient and less expensive.
41. In the first place, the Court recalls that the impugned
membership obligation was one imposed by law, the breach of which
was likely to bring about the revocation of the applicant's
licence. He was thus subjected to a form of compulsion which,
as already stated, is rare within the community of Contracting
States and which, on the face of it, must be considered
incompatible with Article 11 (art. 11) (see, mutatis mutandis,
the Le Compte, Van Leuven and De Meyere v. Belgium judgment of
23 June 1981, Series A no. 43, p. 27, para. 65).
The Court does not doubt that Frami had a role that
served not only the occupational interests of its members but
also the public interest, and that its performance of the
supervisory functions in question must have been facilitated by
the obligation of every licence-holder within the association's
area to be a member. However, the Court is not convinced that
compulsory membership of Frami was required in order to perform
those functions. Firstly, the main responsibility for the
supervision of the implementation of the relevant rules lay with
the Committee (see paragraph 20 above). Secondly, membership was
by no means the only conceivable way of compelling the licence-
holders to carry out such duties and responsibilities as might
be necessary for the relevant functions; for instance, some of
those provided for in the applicable legislation (see
paragraph 22 above) could be effectively enforced without the
necessity of membership. Lastly, it has not been established
that there was any other reason that would have prevented Frami
from protecting its members' occupational interests in the
absence of the compulsory membership imposed on the applicant
despite his opinions (see, inter alia, the above-mentioned
Schmidt and Dahlström judgment, p. 16, para. 36, and the
above-mentioned Young, James and Webster judgment, pp. 25-26,
para. 64).
Having regard to the foregoing, the reasons adduced by
the Government, although they can be considered relevant, are not
sufficient to show that it was "necessary" to compel the
applicant to be a member of Frami, on pain of losing his licence
and contrary to his own opinions. In particular, notwithstanding
Iceland's margin of appreciation, the measures complained of were
disproportionate to the legitimate aim pursued. Consequently,
there has been a violation of Article 11 (art. 11).
II. ALLEGED VIOLATIONS OF ARTICLES 9 AND 10 (art. 9, art. 10)
42. The applicant shared the Commission's opinion that if a
violation were found of Article 11 (art. 11), it would be
unnecessary to consider separately whether there have also been
breaches of Articles 9 or 10 (art. 9, art. 10).
43. Having taken account of these Articles (art. 9, art. 10)
in the context of Article 11 (art. 11) (see paragraphs 37 and 41
above), the Court agrees with this view.
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
44. Before the Commission, the applicant, without invoking
other arguments than those with respect to Article 11 (art. 11),
alleged a violation of Article 13 (art. 13). However, in his
submissions to the Court he stated that he accepted the
Commission's conclusion that there has been no violation of this
Article (art. 13).
45. The Court does not find it necessary to examine the
matter of its own motion.
IV. APPLICATION OF ARTICLE 50 (art. 50)
46. Mr Sigurdur A. Sigurjónsson sought just satisfaction
under Article 50 (art. 50), according to which:
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party." The applicant did not seek compensation for damage but
claimed reimbursement of costs and expenses, totalling 3,128,626
Icelandic crowns, in respect of the following items:
(a) 78,941 crowns to cover translations of pleadings
made and documents submitted in the proceedings
before the Commission and Court; (b) 55,460 crowns for expenses relating to his
lawyer's journey to Strasbourg to appear before
the Court; (c) 2,994,225 crowns for 370 hours' work (at 6,500
crowns per hour, plus 24.5% Value Added Tax) by
the lawyer in respect of the Strasbourg
proceedings.47. The Government made no objection to items (a) and (b) and
agreed to pay item (c) at a reasonable amount if a violation were
to be found.
48. The Court is satisfied that items (a) and (b) were
necessarily incurred and were reasonable as to quantum; these
should be reimbursed in their entirety, less the corresponding
sum already paid by the Council of Europe by way of legal aid,
namely 7,813 French francs.
As regards item (c), the Court, making an assessment on
an equitable basis, considers that the applicant should be
awarded under this head 2,000,000 Icelandic crowns, from which
must be deducted the 7,050 French francs received from the
Council of Europe in respect of legal fees.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been a
violation of Article 11 (art. 11);2. Holds unanimously that it is not necessary also to
examine the case under Articles 9 or 10 (art. 9,
art. 10);3. Holds unanimously that it is also not necessary to
determine whether there has been a violation of
Article 13 (art. 13);4. Holds unanimously that Iceland is to pay the applicant,
within three months, for legal fees and expenses,
2,134,401 (two million, one hundred and thirty-four
thousand, four hundred and one) Icelandic crowns, less
14,863 (fourteen thousand, eight hundred and sixty-three)
French francs to be converted into Icelandic crowns at
the rate applicable on the date of delivery of the
present judgment;5. Dismisses unanimously the remainder of the claim for just
satisfaction. Done in English* and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 30 June 1993.
_______________
* Note by the Registrar: as a derogation from the usual practice
(Rules 26 and 27 para. 5 of the Rules of Court), the
French text was not available until September 1993; but it too
is authentic.
_______________
Signed: Rolv RYSSDAL
PresidentSigned: For the Registrar
Herbert Petzold
Deputy Registrar In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
dissenting opinion of Mr Thór Vilhjálmsson is annexed to this
judgment.
Initialled: R.R.
Initialled: H.P.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
In the case of Young, James and Webster v. the United
Kingdom*, which was decided by the Court in 1981, I voted with
a minority that did not find a violation of Article 11 (art. 11)
of the Convention. It was my opinion that the text of this
Article (art. 11) cannot be construed as guaranteeing the so-
called negative freedom of association. Its text makes no
express reference to such a guarantee.
_______________
* Note by the registry: judgment of 13 August 1981, Series A
no. 44.
_______________
This is of particular significance because the Universal
Declaration of Human Rights, adopted by the United Nations
General Assembly in 1948, is cited in the Preamble to the
European Convention. There it is stated that the aim of our
Convention is to take "the first steps for the collective
enforcement of certain of the rights stated in the Universal
Declaration". Moreover, the travaux préparatoires show that
those responsible for drafting the Convention were not prepared
to include the negative freedom of association in it at that
time. None of the ten protocols has changed that situation.
Even if others may be better qualified to give an
interpretation of the 1981 judgment than I am, I venture to
suggest that the very special circumstances of the above-
mentioned British case make the judgment in it an unclear
precedent.
The present case shows, in my opinion, that the classic
freedom of association, which is expressly guaranteed in
Article 11 (art. 11) of the Convention, is essentially different
from the negative freedom of association. The freedom guaranteed
by the Convention was originally one of the foundations of
political freedom and activity. Since then, under the protection
of this freedom, the trade unions, and their activities aimed at
improving the lot of their members, have developed. The
Icelandic case before the Court now shows that in certain
circumstances it is not clear whether the negative freedom of
association is likely to further the interests of those concerned
in a way comparable to the clear benefits of the classic freedom.
The applicant, Mr Sigurdur A. Sigurjónsson, was, according to
Icelandic law, under an obligation to join a private-law
association, Frami, which had certain duties in connection with
the operation of taxi services. This was a part of a system that
in modern-day usage could be called "subsidiarity". There are
arguments for and against making membership of an association a
legal obligation. The situation in Iceland in this respect is
currently being examined by the institutions set up under the
1961 European Social Charter. It is not for our Court to take
sides in that debate. Its only task is to decide whether
Article 11 (art. 11) of the Convention applies in this particular
case. I think that the negative freedom is so special and so
clearly distinguishable from the positive freedom of association,
that a legal interpretation of the Article (art. 11) cannot
result in the inclusion of the negative freedom within its sphere
of application. Accordingly, and on the same basis as in 1981,
I find no violation.