| |
1. The authors of the
communication are Franz Wallmann (first author) and his wife, Rusella
Wallmann (second author), both Austrian nationals, as well as the "Hotel zum
Hirschen Josef Wallmann" (third author), a limited partnership including a
limited liability company, represented by Mr. and Mrs. Wallmann for the
purposes of this communication. The authors claim to be a victim of
violations by Austria [FN1] of article 22, paragraph 1, of the Covenant.
They are represented by counsel.
-------------------------------------------------------------------------------------------------------------------------------
[FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for the State party respectively on 10 December 1978 and 10 March
1988. Upon ratification of the Optional Protocol on 10 December 1987, the
State party entered the following reservation: "On the understanding that,
further to the provisions of article 5 (2) of the Protocol, the Committee
provided for in Article 28 of the Covenant shall not consider any
communication from an individual unless it has been ascertained that the
same matter has not been examined by the European Commission on Human Rights
established by the European Convention for the Protection of Human Rights
and Fundamental Freedoms."
-------------------------------------------------------------------------------------------------------------------------------
THE FACTS AS SUBMITTED BY THE AUTHORS
2.1 The first author is the director of a hotel in Salzburg, the "Hotel zum
Hirschen", a limited partnership (Kommanditgesellschaft) acting as the third
author. Until December 1999, the first author and Mr. Josef Wallmann were
the company's partners, in addition to its general partner, the "Wallmann
Gesellschaft mit beschränkter Haftung", a limited liability company (Gesellschaft
mit beschränkter Haftung). Since December 1999, when the first author and
Josef Wallmann left the limited partnership, the second author holds 100
percent of the shares of both the limited liability company and the limited
partnership.
2.2 The "Hotel zum Hirschen Josef Wallmann", a limited partnership (Kommanditgesellschaft)
is a compulsory member of the Salzburg Regional Section of the Austrian
Chamber of Commerce (Landeskammer Salzburg), as required under section 3,
paragraph 2, of the Chamber of Commerce Act (Handelskammergesetz). On 26
June 1996, the Regional Chamber requested the limited partnership's to pay
its annual membership fees (Grundumlage) for 1996, in the amount of
10,230.00 ATS. [FN2]
-------------------------------------------------------------------------------------------------------------------------------
[FN2] 1 euro is equivalent to ATS 13.76.
-------------------------------------------------------------------------------------------------------------------------------
2.3 On 3 July 1996, the first author appealed on behalf of the limited
partnership to the Federal Chamber of Commerce (Wirtschaftskammer Österreich)
claiming a violation of his right to freedom of association protected under
the Austrian Constitution (Bundesverfassungsgesetz) and the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
On 9 January 1997, the Federal Chamber of Commerce rejected the appeal.
2.4 The first author lodged a constitutional complaint with the Austrian
Constitutional Court (Verfassungsgerichtshof), which declared the complaint
inadmissible on 28 November 1997, since it had no prospect of success in the
light of the Court's jurisprudence regarding compulsory membership in the
Chamber of Commerce, and referred the case to the Supreme Administrative
Court (Verwaltungsgerichtshof) to review the calculation of the annual fees.
Accordingly, that tribunal did not address the question of the limited
partnership's compulsory membership.
2.5 On 3 July 1998, the first author submitted an application to the
European Commission of Human Rights (European Commission), alleging a
violation of his rights under articles 6, paragraph 1 (right to a fair trial
in the determination of his civil rights and obligations), 10 (freedom of
expression), 11 (freedom of association) and 13 (right to an effective
remedy) of the European Convention. In a letter dated 10 July 1998, the
Secretariat of the former European Commission advised the first author of
its concerns as to the admissibility of his application, informing him that,
according to the Commission's jurisprudence, membership in a chamber of
commerce was not covered by the right to freedom of association since
chambers of commerce could not be considered associations within the meaning
of article 11 ECHR. Moreover, article 6 of the Convention did not apply to
domestic proceedings concerning the levy of taxes and fees. His application
would therefore have to be declared inadmissible by the Commission. In the
absence of any further observations by the author, his application could
neither be registered, nor be transmitted to the Commission.
2.6 By letter of 22 July 1998, the first author responded to the
Secretariat, setting out his arguments in favour of registering his
application. On 11 August 1998, the Secretariat of the European Commission
informed the author that his application had been registered. As a
consequence of the entry into force of Protocol No. 11 to the European
Convention on 1 November 1998, the author's application was transferred to
the European Court of Human Rights. On 31 October 2000, a panel of three
judges of the Court declared the application inadmissible under article 35,
paragraph 4, of the Convention, noting "that the applicant has been informed
of the possible obstacles to its admissibility" and finding that the matters
complained of "do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols". [FN3]
-------------------------------------------------------------------------------------------------------------------------------
[FN3] See European Court of Human Rights, Third Section, Decision on the
admissibility of Application No. 42704/98 (Franz Wallmann v. Austria), 31
October 2000.
-------------------------------------------------------------------------------------------------------------------------------
2.7 On 13 October 1998 and on 16 December 1999, respectively, the Federal
Commerce Chamber dismissed the third author's appeals against decisions of
the Salzburg Regional Chamber specifying the limited partnership's annual
membership fees for 1998 and 1999. No constitutional complaint was lodged
against these dismissals.
THE COMPLAINT
3.1 The authors claim to be victims of a violation of article 22, paragraph
1, of the Covenant, because the limited partnership's compulsory membership
in the Regional Chamber of Commerce, combined with the obligation to pay
annual membership fees, effectively denies them their right to freedom of
association, including the right to found or join another association for
similar commercial purposes.
3.2 The authors submit that the applicability of article 22 to compulsory
membership in the Austrian Federal Chamber and Regional Chambers of Commerce
has to be determined on the basis of international standards. Their
qualification as public law organizations under Austrian legislation does
not reflect their true character, since the Chambers: (1) represent the
interests of the businesses that make up their membership, rather than the
public interest; (2) engage themselves in a broad range of economic,
profit-oriented activities; (3) assist their members in establishing
business contacts; (4) exercise no disciplinary powers vis-à-vis their
members; and (5) lack the characteristics of professional organizations in
the public interest, their common feature being limited to "doing business".
The authors contend that article 22 of the Covenant is applicable to the
Chambers, since they perform the functions of a private organization
representing its economic interests.
3.3 The authors argue that even if the Chambers were to be considered public
law organizations, the financial burden placed on their members by the
annual membership fees effectively prevents members from associating with
one another outside the Chambers, since individual businesspeople cannot
reasonably be expected to make similar contributions in addition to the
Chambers' annual membership fees, to fund alternative private associations
to enhance their economic interests. The annual membership fees therefore
serve, and are calculated, as a de facto prohibition of the exercise of the
right freely to associate outside the Chambers.
3.4 For the authors, the compulsory membership scheme is not a necessary
restriction to further any legitimate State interest within the meaning of
article 22, paragraph 2, of the Covenant. There is no such compulsory
membership in most other European States.
3.5 With regard to the Austrian reservation to article 5, paragraph 2 (a),
of the Optional Protocol, the authors argue that, taking the text of the
reservation literally, the same matter has not been examined by the
"European Commission of Human Rights", as the first author's application to
the Commission was dismissed by the European Court of Human Rights without
any examination on the merits, in particular as regards the questions of
whether the Austrian Chamber of Commerce falls under the definition of
"association" and whether its compulsory membership makes it impossible for
individuals to exercise their right to freedom of association outside the
Chamber. The failure of the European Court's Secretariat first to inform the
author about the concerns as to the admissibility of his application
deprived him of his right to forum selection by withdrawing his application
before the European Court and submitting it to the Committee. The fact that
he had already received a letter from the Commission's Secretariat in July
1998 is said to be irrelevant, since it pre-dated the registration of his
application and because the Court's case law had evolved in the meantime.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 On 26 September 2001, the State party made its submission on the
admissibility of the communication. It considers that, insofar as the first
author is concerned, the Committee's competence to examine the case is
precluded by article 5, paragraph 2 (a), of the Optional Protocol read in
conjunction with the relevant Austrian reservation.
4.2 The State party argues that the reservation is applicable to the
communication because the first author had already brought the same matter
before the European Commission of Human Rights, whose Secretariat informed
him of its concerns as to the admissibility of his application, concluding
that the application would likely be declared inadmissible. Given that the
Secretariat did not only raise formal issues in the letter to the first
author, but referred to several precedents from the Commission's substantive
case law, the State party argues that the European Commission proceeded to
an examination of the merits of the application and has, therefore,
"examined" the same matter.
4.3 In addition, the European Court, in its decision of 31 October 2000,
stated that it "had examined the application". The fact that the Court
eventually rejected the application as inadmissible is without prejudice to
this finding, since it was not dismissed on the formal grounds set out in
article 35, paragraphs 1 and 2, of the Convention. Rather, the Court's
finding that the matters complained of "do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols" clearly shows that the Court's examination also comprised "a
far-reaching analysis of the merits of the case". The application was thus
rejected on the merits, in accordance with article 35, paragraph 4, of the
Convention, as manifestly ill-founded.
4.4 For the State party, the applicability of the reservation is not
hampered by its explicit reference to the European Commission of Human
Rights. Even though the author's application was eventually rejected by the
European Court and not by the European Commission, the Court has taken over
the former Commission's functions after the entry into force of Protocol No.
11 on 1 November 1998, when all cases previously pending before the
Commission were transferred to the new European Court. The new Court must
therefore be considered the former Commission's successor.
4.5 Finally, the State party submits that the fact that the European Court
did not inform the first author of its intention to dismiss his application
does not constitute a reason for which the Austrian reservation could not
apply in the present case.
COMMENTS BY THE AUTHORS
5.1 By letter of 15 October 2001, the first author amended the communication
so as to include his wife and the "Hotel zum Hirschen Josef Wallmann"
limited partnership as additional authors.
5.2 In response to the State party's observations on admissibility, the
authors submit that permissible and duly accepted reservations to
international treaties become integral parts of these treaties and must
therefore be interpreted in the light of the rules in articles 31 and 32 of
the Vienna Convention on the Law of Treaties. Since the Austrian
reservation, pursuant to the ordinary meaning of its wording, clearly refers
to an examination by the European Commission of Human Rights, no room is
left for an interpretation based on its context or object and purpose, let
alone the supplemental means of treaty interpretation in article 32 of the
Vienna Convention (travaux préparatoires and circumstances of treaty
conclusion). The ordinary meaning of the reservation's text being equally
clear in requiring that the same matter "has not been examined" [FN4] by the
European Commission, the mere fact that the first author submitted an
application to the former Commission is not sufficient to justify the
applicability of the reservation to his present communication.
-------------------------------------------------------------------------------------------------------------------------------
[FN4] Emphasis added.
-------------------------------------------------------------------------------------------------------------------------------
5.3 The authors reiterate that the application was never "examined" by the
European Commission, as the Secretariat's letter of 10 July 1998, informing
the first author of certain admissibility-related concerns, was sent at a
time when the application had neither been registered nor brought to the
attention of the Commission. Similarly, the Commission never examined the
application after it had been registered because of its referral to the new
European Court, after entry into force of Protocol No. 11.
5.4 The authors reject the State party's argument that the new European
Court simply replaced the former European Commission and that the Austrian
reservation, despite its wording, should cover cases in which the same
matter was examined by the new Court, on the basis that the new Court's
competencies are broader than those of the former Commission.
5.5 Moreover, the authors argue that, in any event, it appeared from the
reference, in the European Court's decision, to the letter of 10 July 1998
of the Secretariat that the Court rejected the application as inadmissible
ratione materiae with article 11 of the Convention, which cannot, however,
be considered an examination within the meaning of the Austrian reservation,
in accordance with the Committee's jurisprudence. [FN5]
-------------------------------------------------------------------------------------------------------------------------------
[FN5] The authors refer to Communication No. 441/1990, Robert Casanovas v.
France, Views adopted on 9 July 1994, UN Doc. CCPR/C/51/D/441/1990, at para.
5.1, and Communication No. 808/1998, Georg Rogl v. Germany, decision on
admissibility adopted on 25 October 2000, UN Doc. CCPR/C/70/D/808/1998, at
paras. 9.3 et seq.
-------------------------------------------------------------------------------------------------------------------------------
5.6 The authors recall that the Austrian reservation to article 5(2) (a) of
the Optional Protocol is the only one explicitly referring to the "European
Commission of Human Rights" instead of "another procedure of international
investigation or settlement". The aim of the drafters of the reservation is
said to be irrelevant, because the clear and ordinary meaning of the
Austrian reservation does not permit having resort to supplemental means of
treaty interpretation within the meaning of article 32 of the Vienna
Convention.
5.7 By reference to the jurisprudence of the European and the Inter-American
Courts of Human Rights, the authors emphasize that reservations to human
rights treaties must be interpreted in favour of the individual. Any attempt
to broaden the scope of the Austrian reservation should be rejected, as the
Committee disposes of adequate tools to prevent an improper use of parallel
proceedings, such as the concepts of "substantiation of claims" and "abuse
of the right to petition", in addition to article 5, paragraph 2 (a), of the
Optional Protocol.
5.8 The authors conclude that the communication is admissible under article
5, paragraph 2 (a), of the Optional Protocol, insofar as the first author is
concerned, because the same matter is not being examined by another
procedure of international investigation or settlement and since the
Austrian reservation does not apply. Insofar as the second and the third
authors are concerned, there is no need for the Committee to consider
whether the Austrian reservation to article 5, paragraph 2 (a), applies,
since these authors and not petition the European Commission or Court of
Human Rights. [FN6]
-------------------------------------------------------------------------------------------------------------------------------
[FN6] In this regard, the authors refer to Communication No. 645/1995,
Vaihere Bordes and John Temeharo v. France, decision on admissibility
adopted on 22 July 1996, UN Doc. CCPR/C/57/D/645/1995, at para. 5.2.
-------------------------------------------------------------------------------------------------------------------------------
5.9 Lastly, the authors submit that they have sufficiently substantiated,
for purposes of admissibility, that the Austrian Federal and the Regional
Chambers of Commerce perform the functions of associations within the
meaning of article 22, paragraph 1, of the Covenant.
ADDITIONAL OBSERVATIONS BY THE STATE PARTY
6.1 On 30 January 2002, the State party submitted further observations on
the admissibility and, in addition, on the merits of the communication. It
argues that the communication is inadmissible under articles 1 and 2 of the
Optional Protocol, insofar as the third author is concerned, since,
according to the Committee's jurisprudence, [FN7] associations and
corporations cannot be considered individuals, nor can they claim to be
victims of a violation of any of the rights protected in the Covenant.
-------------------------------------------------------------------------------------------------------------------------------
[FN7] The State party refers to Communications No. 104/1981, J.R.T. and the
W.G. Party v. Canada, decision on admissibility adopted on 6 April 1983, UN
Doc. CCPR/C/18/D/104/1981, at para. 8 (a); No. 502/1992, S.M. v. Barbados,
decision on admissibility adopted on 31 March 1994, UN Doc. CCPR/C/50/D/502/1992,
at para. 6.3, and No. 737/1997, Michelle Lamagna v. Australia, decision on
admissibility adopted on 7 April 1999, UN Doc. CCPR/C/65/D/737/1997, at para.
6.2.
-------------------------------------------------------------------------------------------------------------------------------
6.2 The State party submits that the communication is also inadmissible with
regard to the first and second authors, because they are essentially
claiming violations of the rights of their partnership. Although, as a
limited partnership, the "Hotel zum Hirschen Joseph Wallmann" has no legal
personality, it may act in the same way as entities with legal personality
in its legal relations, which was reflected by the fact that the "Hotel zum
Hirschen Josef Wallmann" was a party to the domestic proceedings. Since all
domestic remedies were brought in the name of the third author and no claim
related to the first and second authors personally has been substantiated
for purposes of article 2 of the Optional Protocol, the first and second
authors have no standing under article 1 of the Optional Protocol. The first
and second authors also failed to exhaust domestic remedies, as only the
third author was a party to the domestic proceedings.
6.3 Furthermore, the second author cannot claim to be a victim of the
impugned decision of the Salzburg Regional Chamber of Commerce of 26 June
1996, as she only became a partner of the limited partnership and
shareholder of the limited liability company in December 1999.
6.4 With regard to the authors' argument that the Austrian reservation only
refers to the European Commission but not to the European Court of Human
Rights, the State party explains that the reservation was made on the basis
of a recommendation by the Committee of Ministers, which suggested that
member States of the Council of Europe, "which sign or ratify the Optional
Protocol might wish to make a declaration [�] whose effect would be that the
competence of the UN Human Rights Committee would not extend to receiving
and considering individual complaints relating to cases which are being or
already have been examined under the procedure provided for by the European
Convention". [FN8]
-------------------------------------------------------------------------------------------------------------------------------
[FN8] Council of Europe, Committee of Ministers Resolution (70) 17 of 15 May
1970.
-------------------------------------------------------------------------------------------------------------------------------
6.5 The State party submits that its reservation differs from similar
reservations made by other member States only insofar as it directly
addresses the relevant Convention mechanism, for the sake of clarity. All
reservations aim at preventing any further international examination
following a decision of the review mechanism established by the European
Convention. It would, therefore, be inappropriate to deny the Austrian
reservation its validity and continued scope of application merely because
of the organizational reform of the review mechanism.
6.6 The State party notes that, because of the merger of the European
Commission and the "old" Court, the "new" European Court can be considered
the "legal successor" of the Commission, since most of its key functions
were formerly discharged by the Commission. Given that the reference to the
European Commission in the State party's reservation was specifically made
in respect of these functions, the reservation remains fully operative after
the entry into force of Protocol No. 11. The State party contends that it
was not foreseeable, when it entered its reservation in 1987, that the
review mechanisms of the European Convention would be modified.
6.7 The State party again emphasizes that the same matter was already
examined by the European Court which, in order to reject the author's
application as being inadmissible, under article 35, paragraphs 3 and 4 of
the European Convention, had to examine it on the merits, if only summarily.
It concludes that the communication is inadmissible under article 5,
paragraph 2 (a), of the Optional Protocol.
6.8 On the merits, the State party submits that the Austrian Chamber of
Commerce is a public organization, established by law rather than private
initiative, and to which article 22 of the Covenant does not apply.
Compulsory membership in chambers, such as, chambers for workers and
employees, agricultural chambers, and chambers for the self-employed, is
commonplace under Austrian law. Certain characteristics of the Chamber of
Commerce are laid down in the Austrian Constitution, including its
compulsory membership, its organization as a public law organization, its
financial and administrative autonomy, its democratic structure and its
supervision by the State, including the supervision of its financial
activities by the Court of Audit. Moreover, the Chamber participates in
matters of public administration by commenting on bills of Parliament, which
have to be submitted to experts of the Chamber, by nominating lay judges for
labour and social courts, as well as delegates for a large number of
commissions in the field of public administration.
6.9 The State party refutes the authors' arguments equating the Federal and
Regional Chambers with private associations (see para. 3.2), arguing that
(1) the representation of the common economic interests of Chamber members
is in the public interest; (2) the Chamber is a non-profit organization,
whose membership fees are limited and must not exceed the amount required
for the necessary expenses, pursuant to article 131 of the Chamber of
Commerce Act; (3) the addresses of Chamber members are accessible to the
general public, through the Trade Register; (4) the fact that the Chamber
has no disciplinary powers does not compel the conclusion that the Chamber
is not a professional organization, as the existence of disciplinary powers
is not a constitutive element of such organizations; (5) except for
disciplinary matters, the Chamber can in every respect be compared to
professional organizations in the public interest.
6.10 The State party submits that any comparison with the structure of
commerce chambers in other European countries fails to recognize that the
Austrian Chamber could not fulfill the public functions assigned to it if it
were treated on an equal basis with private associations. The public law
character of the Chamber was also confirmed by the European Court of Human
Rights. [FN9] On the basis that it was created by law and not by private act
and that it discharges functions in the public interest, such as the
prevention of unfair trade practices, the promotion of professional training
and the supervision of the actions of its members. The State party endorses
the European Court's conclusion that article 11 of the European Convention
does not apply to the Chamber of Commerce and considers the argument
applicable to article 22 of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------
[FN9] The State party refers to the Court's decision on admissibility on
Application No. 14596/89 (Weiss v. Austria), 10 July 1991.
-------------------------------------------------------------------------------------------------------------------------------
6.11 Concerning the author's contention that the annual membership fees of
the Chamber in their effect prevent members from founding or joining
alternative associations, the State party submits that these fees are
relatively modest compared with the authors' other expenses and are tax
deductible, as are contributions to private professional or trade
organizations. The annual contribution to the private Association of Hotel
Owners, ranging between 5,000 and 24,000 ATS, has not prevented its nearly
1,000 members from joining the Association. In the authors' case, the fee
would amount to less than 10,000 ATS, a fee they could afford.
ADDITIONAL COMMENTS BY THE AUTHORS
7.1 By letter of 11 March 2002, the authors responded to the State party's
additional observations. While agreeing that the Committee has, in
principle, held so far that only individuals can lodge communications, they
argue that nothing precludes several persons who are engaged in the same
commercial activity from submitting a complaint together. [FN10] According
to the Committee's jurisprudence, [FN11] such "categories of persons" form a
semi-independent entity for purposes of admissibility under articles 1 and 2
of the Optional Protocol, while the individuals concerned merely stand
behind that entity. The standing of "categories of persons" thus points to a
developing practice which will eventually result in the recognition of
entities made up of individuals as authors of communications.
-------------------------------------------------------------------------------------------------------------------------------
[FN10] The authors refer to Communication No. 273/1988, B d. B. et al. v.
The Netherlands, decision on admissibility of 30 March 1989, UN Doc.
CCPR/C/35/D/273/1988.
[FN11] Reference is made to Communication No. 359/1989, John Ballantyne,
Elizabeth Davidson and Gordon McIntyre v. Canada, Views adopted on 31 March
1991, UN Doc. CCPR/C/47/D/359/1989, at para. 10.4.
-------------------------------------------------------------------------------------------------------------------------------
7.2 The authors submit that, by denying that the fist and second authors
have substantiated a violation of their own rights, the State party
overlooks that the right to freedom of association under article 22 is "by
[its] nature inalienably linked to the person". [FN12] The fact that this
right is also linked, to a certain extent, to commercial activities does not
make it less protected. [FN13] Since the first and second authors have been
personally affected in their economic activities by the levy of annual
membership dues, based on their compulsory membership in the Chamber of
Commerce, they did not lose their individual rights simply because they
founded a business pursuant to the requirements of domestic law, nor did
they lose the right to claim these rights by means of individual petition.
[FN14]
-------------------------------------------------------------------------------------------------------------------------------
[FN12] Quoted from Communication No. 455/1991, Allan Singer v. Canada, Views
adopted on 26 July 1994, UN Doc. CCPR/C/51/D/455/1991, at para. 11.2.
[FN13] The authors refer to Communication No. 359/1989, John Ballantyne,
Elizabeth Davidson and Gordon McIntyre v. Canada, Views adopted on 31 March
1991, UN Doc. CCPR/C/47/D/359/1989, at para. 11.3.
[FN14] In support of this claim, the authors refer to Communication No.
273/1988, B. d. B. v. The Netherlands, decision on admissibility adopted on
30 March 1989, UN Doc. CCPR/C/35/D/273/1988 and Communication No. 316/1988,
C.E.A. v. Finland, decision on admissibility adopted on 10 July 1991, UN
Doc. CCPR/C/42/D/316/1988.
-------------------------------------------------------------------------------------------------------------------------------
7.3 On domestic remedies, the authors argue that in the absence of any
specification by the State party as to which other proceedings the first and
second authors could have initiated under Austrian law to claim their right
to freedom of association, apart from appealing the Chamber's decision and
lodging a constitutional complaint, in the name of the limited partnership,
the State party's procedural objection must fail. [FN15] Moreover, through
these proceedings, the State party was given an opportunity to remedy the
alleged violation of article 22 of the Covenant, which, according to the
Committee's jurisprudence, [FN16] is the main purpose of the requirement to
exhaust domestic remedies.
-------------------------------------------------------------------------------------------------------------------------------
[FN15] The authors refer to Communication No. 83/1981, Machado v. Uruguay,
Views adopted on 4 November 1983, UN Doc. CCPR/C/20/D/83/1981, at para. 6.
[FN16] Reference is made to Communications No. 220/1987, T. K. v. France,
decision on admissibility adopted on 8 November 1989, UN Doc.
CCPR/C/37/D/220/1987, at para. 8.3, and No. 222/1987, H. K. v. France,
decision on admissibility adopted on 8 November 1989, UN Doc.
CCPR/C/37/D/222/1987, at para. 8.3.
-------------------------------------------------------------------------------------------------------------------------------
7.4 As to the alleged failure of the second author to substantiate her claim
to be a victim of a violation of article 22, the authors submit that the
"Hotel zum Hirschen Joseph Wallmann" limited partnership continues to be a
compulsory member of the Chamber of Commerce. While their communication was
originally directed against the decision determining the membership fees for
1996, subsequent decisions concerning membership fees have been similar. The
second author was affected by these decisions, once she became a partner and
shareholder of the "Wallmann Gesellschaft mit beschränkter Haftung".
7.5 Regarding exhaustion of domestic remedies against subsequent decisions
of the Salzburg Regional Chamber, the authors state that the Federal Chamber
of Commerce, on 13 October 1998 and 16 December 1999, respectively,
dismissed the third author's appeals against the decisions concerning its
membership fees for 1998 and 1999. No further appeals were brought against
these dismissals, since such remedies would have been futile, in the light
of the Constitutional Court's consistent jurisprudence and, in particular,
its decision of 28 November 1997 rejecting the constitutional complaint
concerning the membership fees for 1996. [FN17]
-------------------------------------------------------------------------------------------------------------------------------
[FN17] The authors refer to Communication No. 210/1985, Wim Hendriks v. The
Netherlands, Views adopted on 27 July 1988, UN Doc. CCPR/C/33/D/201/1985, at
para. 6.3.
-------------------------------------------------------------------------------------------------------------------------------
7.6 With respect to the Austrian reservation, the authors reiterate that
nothing prevented the State party from entering a reservation upon
ratification of the Optional Protocol precluding the Committee from
examining communications if the same matter has already been examined "under
the procedure provided for by the European Convention", as recommended by
the Committee of Ministers, or from using the broader formulation of a
previous examination by "another procedure of international investigation or
settlement", as other States parties to the European Convention did.
7.7 Moreover, the authors submit that the State party is free to consider
entering a reservation to that effect by re-ratifying the Optional Protocol,
as long as such a reservation could be deemed compatible with its object and
purpose. What is not permissible, in their view, is to broaden the scope of
the existing reservation in a way contrary to fundamental rules of treaty
interpretation.
7.8 The authors reject the State party's argument that key tasks of the
"new" European Court, such as decisions on admissibility and establishment
of the facts of a case, were originally within the exclusive competence of
the European Commission, arguing that the "old" European Court also
consistently dealt with these matters. They question that the reorganization
of the Convention organs was not foreseeable in 1987 and quote parts of the
Explanatory Report to Protocol No. 11, summarizing the history of the
"merger" deliberations from 1982 until 1987.
7.9 On the merits, the authors contest the State party's arguments to the
effect that the Chamber of Commerce is a public law organization, by
submitting (1) that the mere fact that the Chamber was established by law
does not make it a public law organization; (2) that the right to comment on
draft laws is not peculiar to public law organizations; (3) that the Court
of Audit supervises the financial activities of many entities, including
companies partly owned by the State; (4) that members of commissions in the
field of public administration are nominated not only by certain chambers,
but also by associations representing relevant interest groups such as trade
unions or the churches.
7.10 Moreover, the authors argue (1) that, while the fact that groups of
people have the opportunity to have their interests represented may be in
the public interest, this does not convert the economic interests of the
Chamber members into the "public interest"; (2) that the Chamber engages in
extensive profit-based economic activity, as it is a shareholder of
companies and undertakes advertisement campaigns on behalf of its members;
(3) that the task of sanctioning members who infringe professional duties
constitutes the crucial characteristic of professional organizations
operating in the public interest, according to the case law of the European
Commission of Human Rights; [FN18] (4) that the European Court of Human
Rights confirmed the public law character of the Austrian Chamber of
Commerce, in 1991, merely on the basis of the domestic laws establishing the
Chamber without making a substantive assessment of the question; [FN19] (5)
that the Chamber is merely a private association, which is unjustifiable
given special powers to participate in all branches of government and to
require compulsory membership.
-------------------------------------------------------------------------------------------------------------------------------
[FN18] The authors refer to the Commission's decisions on Applications No.
19363/92 (Gerhard Hirmann v. Austria), 2 March 1994, and No. 14331-2/88
(Paul Revert and Denis Legallais v. France), 8 September 1989.
[FN19] The decision criticized is Application No. 14596/89 (Franz Jakob Weis
v. Austria), decision on admissibility of 10 July 1991.
-------------------------------------------------------------------------------------------------------------------------------
7.11 As regards their freedom to found and join other associations, the
authors submit that compulsory membership in one entity will generally
affect adversely their resolve to found and join another association, as
well as their prospects of convincing other compulsory members to join the
alternative association. They reiterate that the annual membership fees,
amounting to 40,000 ATS, is not an amount they can easily afford, given the
losses of the limited partnership over the past years and the need for
improving the hotel's facilities. [FN20]
-------------------------------------------------------------------------------------------------------------------------------
[FN20] Both the losses of the limited partnership as well as the necessary
improvements of the facilities of the hotel are specified in the
communication.
-------------------------------------------------------------------------------------------------------------------------------
7.12 The authors reiterate that they have sufficiently substantiated their
claim, at least for purposes of admissibility.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
8.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
8.2 The Committee notes that the State party has invoked its reservation
under article 5, paragraph 2 (a), of the Optional Protocol, which precludes
the Committee from considering claims if the "same matter" has previously
been examined by the "European Commission on Human Rights". As to the
authors' argument that the first author's application to the European
Commission was, in fact, never examined by that organ but declared
inadmissible by the European Court of Human Rights, the Committee observes
that the European Court, as a result of treaty amendment by virtue of
Protocol No. 11, has legally assumed the former European Commission's tasks
of receiving, deciding on the admissibility of, and making a first
assessment on the merits of applications submitted under the European
Convention. The Committee recalls that, for purposes of ascertaining the
existence of parallel or, as the case may be, successive proceedings before
the Committee and the Strasbourg organs, the new European Court of Human
Rights has succeeded to the former European Commission by taking over its
functions. [FN21]
-------------------------------------------------------------------------------------------------------------------------------
[FN21] See Communication No. 989/2001, Kollar v. Austria, decision on
admissibility adopted on 30 July 2003, UN Doc. CCPR/C/78/D/989/2003, at
para. 8.2.
-------------------------------------------------------------------------------------------------------------------------------
8.3 The Committee considers that a reformulation of the State party's
reservation, upon re-ratification of the Optional Protocol, as suggested by
the authors, only to spell out what is in fact a logical consequence of the
reform of the European Convention mechanisms, would be a purely formalistic
exercise. For reasons of continuity and in the light of its object and
purpose, the Committee therefore interprets the State party's reservation as
applying also to complaints which have been examined by the European Court.
[FN22]
-------------------------------------------------------------------------------------------------------------------------------
[FN22] See ibid., at para. 8.3.
-------------------------------------------------------------------------------------------------------------------------------
8.4 As to the question of whether the subject matter of the present
communication is the same matter as the one examined by the European Court,
the Committee recalls that the same matter concerns the same authors, the
same facts and the same substantive rights. The first two requirements being
met, the Committee observes that article 11, paragraph 1, of the European
Convention, as interpreted by the Strasbourg organs, is sufficiently
proximate to article 22, paragraph 1, of the Covenant [FN23] now invoked, to
conclude that the relevant substantive rights relate to the same matter.
-------------------------------------------------------------------------------------------------------------------------------
[FN23] Cf. Nowak, Manfred, U.N. Covenant on Civil and Political Rights �
CCPR Commentary (1993), at p. 387.
-------------------------------------------------------------------------------------------------------------------------------
8.5 With respect to the authors' argument that the European Court has not
"examined" the substance of the complaint when it declared the first
author's application inadmissible, the Committee recalls its jurisprudence
that where the European Commission has based a declaration of
inadmissibility not solely on procedural grounds, [FN24] but on reasons that
include a certain consideration of the merits of the case, then the same
matter has been "examined" within the meaning of the respective reservations
to article 5, paragraph 2 (a), of the Optional Protocol. [FN25] The
Committee is satisfied that the European Court went beyond an examination of
purely procedural admissibility criteria when declaring the first author's
application inadmissible, because it did "not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols".
-------------------------------------------------------------------------------------------------------------------------------
[FN24] See, for example, Communication No. 716/1996, Pauger v. Austria,
Views adopted on 25 March 1999, UN Doc. CCPR/C/65/D/716/1996, at para. 6.4.
[FN25] See, for example, Communications No. 121/1982, A.M. v. Denmark,
decision on admissibility adopted on 23 July 1982, UN Doc.
CCPR/C/16/D/121/1982, at para. 6, and No. 744/1997, Linderholm v. Croatia,
decision on admissibility adopted on 23 July 1999, UN Doc.
CCPR/C/66/D/744/1997, at para. 4.2.
-------------------------------------------------------------------------------------------------------------------------------
8.6 The Committee notes that, the authors, based on the reference in the
European Court's decision to the letter of the European Commission's
Secretariat, explaining the possible obstacles to admissibility, argue that
the application was declared inadmissible ratione materiae with article 11
of the Convention, and that it has therefore not been "examined" within the
meaning of the Austrian reservation. However, it cannot be ascertained, in
the present case, on exactly which grounds the European Court dismissed the
first author's application when it declared it inadmissible under article
35, paragraph 4, of the Convention. [FN26]
-------------------------------------------------------------------------------------------------------------------------------
[FN26] Article 35, paragraph 4, of the European Convention reads, in
pertinent parts: "The Court shall reject any application which it considers
inadmissible under this article." This refers, inter alia, to the
inadmissibility grounds set out in article 35, paragraph 3, i.e.
inadmissibility ratione materiae, manifestly ill-founded applications, and
abuse of the right of application.
-------------------------------------------------------------------------------------------------------------------------------
8.7 Having concluded that the State party's reservation applies, the
Committee concludes that the communication is inadmissible under article 5,
paragraph 2 (a), of the Optional Protocol, insofar as the first author is
concerned, since the same matter has already been examined by the European
Court of Human Rights.
8.8 The Committee observes that the examination of the application by the
European Court did not concern the second author, whose communication,
moreover, relates to different facts than the first author's application to
the European Commission, namely the imposition of membership fees by the
Salzburg Regional Chamber after she had become a partner of the limited
partnership as well as a shareholder of the limited liability company in
December 1999. The State party's reservation does not therefore apply
insofar as the second author is concerned.
8.9 The Committee considers that the second author has substantiated, for
purposes of article 2 of the Optional Protocol, that the applicability of
article 22 of the Covenant to the Austrian Chamber of Commerce cannot a
priori be excluded. It further notes that the "Hotel zum Hirschen Josef
Wallmann KG", being a limited partnership, has no legal personality under
Austrian law. Notwithstanding the fact that the third author has, and
availed itself of its, capacity to take part in domestic court proceedings,
the second author, who holds 100 percent of the shares of the limited
partnership, is, in her capacity as partner, liable for the third author's
obligations vis-à-vis its creditors. The Committee therefore considers that
the second author is directly and personally affected by the third author's
compulsory membership in the Chamber and the resulting annual membership
fees, and that she can therefore claim to be a victim of a violation of
article 22 of the Covenant.
8.10 To the extent that the second author complains that the practical
effect of the annual membership fees is to prevent her from founding or
joining alternative associations, the Committee finds that she failed to
substantiate, for purposes of admissibility, that the annual payments to the
Chamber is so onerous as to constitute a relevant restriction on her right
to freedom of association. The Committee concludes that this part of the
communication is inadmissible under article 2 of the Optional Protocol.
8.11 As to the State party's objection that the second author failed to
exhaust domestic remedies, as the limited partnership itself was party to
the domestic proceedings, the Committee recalls that wherever the
jurisprudence of the highest domestic tribunals has decided the matter at
issue, thereby eliminating any prospect of success of an appeal to the
domestic courts, authors are not required to exhaust domestic remedies.
[FN27] The Committee notes that the State party has not shown how the
prospects of an appeal by the second author against the levy of annual
membership fees by the Chamber for the years 1999 onwards would have
differed from those of the appeal lodged by the limited partnership and
eventually dismissed by the Austrian Constitutional Court in 1998, for lack
of reasonable prospect of success.
-----------------------------------------------------------------------------------------------------------------------------
[FN27] See, for example, Communication No. 511/1992, Länsmanet al. v.
Finland, at para. 6.1.
-------------------------------------------------------------------------------------------------------------------------------
8.12 Accordingly, the Committee concludes that the communication is
admissible insofar as the second author complains, as such, about the
compulsory membership of the "Hotel zum Hirschen Joseph Wallmann" limited
partnership in the Chamber of Commerce and the resulting membership fees
charged since December 1999.
8.13 Regarding the third author, the Committee notes that the "Hotel zum
Hirschen Josef Wallmann" is not an individual, and as such cannot submit a
communication under the Optional Protocol. The communication is therefore
inadmissible under article 1 of the Optional Protocol, insofar as it is
submitted on behalf of the third author.
CONSIDERATION OF THE MERITS
9.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
9.2 The issue before the Committee is whether the imposition of annual
membership fees on the "Hotel zum Hirschen" (third author) by the Salzburg
Regional Chamber of Commerce amounts to a violation of the second author's
right to freedom of association under article 22 of the Covenant.
9.3 The Committee has noted the authors' contention that, although the
Chamber of Commerce constitutes a public law organization under Austrian
law, its qualification as an "association" within the meaning of article 22,
paragraph 1, of the Covenant has to be determined on the basis of
international standards, given the numerous non-public functions of the
Chamber. It has equally taken note of the State party's argument that the
Chamber forms a public organization under Austrian law, on account of its
participation in matters of public administration as well as its public
interest objectives, therefore not falling under the scope of application of
article 22.
9.4 The Committee observes that the Austrian Chamber of Commerce was founded
by law rather than by private agreement, and that its members are
subordinated by law to its power to charge annual membership fees. It
further observes that article 22 of the Covenant only applies to private
associations, including for purposes of membership.
9.5 The Committee considers that once the law of a State party establishes
commerce chambers as organizations under public law, these organizations are
not precluded by article 22 of the Covenant from imposing annual membership
fees on its members, unless such establishment under public law aims at
circumventing the guarantees contained in article 22. However, it does not
appear from the material before the Committee that the qualification of the
Austrian Chamber of Commerce as a public law organization, as envisaged in
the Austrian Constitution as well as in the Chamber of Commerce Act of 1998,
amounts to a circumvention of article 22 of the Covenant. The Committee
therefore concludes that the third author's compulsory membership in the
Austrian Chamber of Commerce and the annual membership fees imposed since
1999 do not constitute an interference with the second author's rights under
article 22.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose a
violation of article 22, paragraph 1, of the Covenant.
________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
|
