CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 14596/89                       by Franz Jakob WEISS                       against Austria             The European Commission of Human Rights sitting in private on 10 July 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 13 January 1989 by Franz Jakob WEISS against Austria and registered on 30 January 1989 under file No. 14596/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen, living in Krumpendorf.           He is represented before the Commission by Mr.   G. Stanonik, a lawyer practising in Salzburg.           The facts of the present case, as submitted by the applicant, may be summarised as follows.           On 1 July 1980 the applicant was granted a licence to run a restaurant (Gasthof) in Krumpendorf.   According to Section 3 (2) of the Chamber of Commerce Act (Handelskammergesetz) in connection with the relevant provisions of the Trade Sections Decree (Fachgruppen- ordnung) the applicant became automatically and obligatorily a member of the Hotel and Accommodation Trade Section (Hotel- und Beherbergungs- betriebe) of the Carinthian Chamber of Trade (Fachgruppe der Kammer der gewerblichen Wirtschaft).           On 3 September 1980 the applicant received a prompt note reminding him that he owed an inscription fee (Einverleibungsgebühr) of 2,500 AS.   The applicant replied that he had not yet received any order to pay the fee.   He requested to be given a detailed decision about the nature and extent of his obligation to share the costs of the Chamber of Trade.   This decision, given by his Section on 15 September 1981, was quashed by the Carinthian Chamber of Trade on 21 December 1981.           The applicant's request was then rejected by his Section on 10 February 1982 for having been lodged out of time.   His appeal was rejected by the Carinthian Chamber of Trade on 18 August 1982 and by the Federal Chamber of Trade (Bundeskammer der gewerblichen Wirtschaft) on 4 October 1982.   The latter decision was however quashed by the Administrative Court (Verwaltungsgerichtshof) on 19 November 1985.           On 5 June 1986 the Hotel and Accommodation Trade Section of the Carinthian Chamber of Trade again requested the payment of the inscription fee.   On 3 November 1986 the applicant, who had again asked for a decision on the nature and extent of his obligations, was ordered by the Hotel and Accommodation Trade Section to pay a fee in the amount of 2,500 AS.   Invoking, inter alia, Article 11 of the Convention, the applicant lodged an appeal (Berufung), which was rejected by the Carinthian Chamber of Trade on 20 January 1987.   A further appeal to the Federal Chamber of Trade was partly granted on 4 March 1987 in that the fee was reduced to 1,500 AS but the remainder of the appeal was rejected.           The applicant then lodged a constitutional complaint to the Constitutional Court and also appealed to the Administrative Court. The Constitutional Court (Verfassungsgerichtshof) referred the matter to the Administrative Court on 26 February 1988.   By decision of 14 June 1988 (served upon the applicant's lawyer on 19 July 1988) this Court rejected the appeal as being ill-founded.   It stated that the legal provisions from which the applicant's membership and obligation to pay a fee resulted were unobjectionable and the order complained of therefore lawful as the applicant had been granted a trade licence and the conditions for the imposition of the fee were therefore given.         Relevant domestic law           The relevant provisions of the Chamber of Commerce Act read         as follows:           "1st Chapter           Section 1 (Objectives)           (1) The Chambers of Trade (Regional Chambers, Federal Chamber)         serve to represent the common interests of ... juridical         persons constituting an independent trade ...           (2) The trade organisations formed in accordance with         this Act are public law institutions (Körperschaften des         öffentlichen Rechts).   Regional Chambers ... are entitled         to use the Federal coat of arms.           Section 3 (Competence, Seat, Members)           (1) ...           (2) Members of each Chamber of Trade are all physical         and juridical persons ..., which are authorised         independently to carry out a trade ...           Section 4 (Tasks in the independent sphere of activity)           (1) The Chambers of Trade have an independent and         an attributed sphere of activity.   Each Chamber has,         within its independent sphere of activity,               a) to deal with all matters related to the common                economic interests of the enterprises grouped                within it               b) to deal with and protect the labour law interests                of its members, to see to it that industrial                peace is maintained and to take all adequate                measures to further this aim ...           3rd Chapter           Section 29 (Activity and members of Trade Sections)           (1) Trade Sections represent the trade interests of their         members.   Trade matters (Section 41 (1)) are in particular:               a) the furtherance of economic, social and humanitarian                concerns of its members, the encouragement of a                corporate spirit, the maintenance and amelioration of                professional standards;               b) the elimination and prevention of customs, practices                and innovations which hamper fair competition among                members;               c) the furtherance of professional education and                training ...         4th Chapter           Section 57 (b) (Inscription fees)           (1) Inscription fees become due when the conditions of         Section 3 (2) are given.           (2) The normal fee rate is a minimum of 500 AS and         a maximum of 5000 AS ...           Section 67 (Fines)           (1) Chamber members (Section 3 (2)) who do not reply         or reply in a belated, incomplete or incorrect manner         to requests for information, reports or indications         made by a Chamber of Trade, a Trade Section or a         Trade Association, may be fined in the amount of         10 to 2,500 AS."     COMPLAINTS           The applicant complains of his obligatory membership of the Chamber of Trade and of his obligation to pay an inscription fee.   He submits that the control and supervision of trade as to compliance with e.g. food and hygiene regulations is carried out by the police while tasks of the Chamber of Trade are limited to matters of common interest, described in Austria by the term "social partnership" (Sozialpartnerschaft), i.e. matters that could as well be taken care of by a private organisation.           He alleges a violation of Article 11 of the Convention and of Article 1 of Protocol No. 1, also read together with Article 14 of the Convention.     THE LAW           The applicant complains that his compulsory membership in a section of the Carinthian Chamber of Trade is contrary to his right to freedom of association as guaranteed by Article 11 (Art. 11) of the Convention.           Paragraph 1 of this provision reads as follows:   "1.    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests."           The Commission recalls the case-law of the Convention organs according to which Article 11 (Art. 11) concerns the right to form and join private organisations; institutions of public law do not constitute associations within the meaning of this provision (cf.   No. 8734/79, Dec. 12.3.81, D.R. 26 p. 145 at p. 154).           The Commission notes that the Chambers of Trade in Austria have not been founded as professional organisations by private individuals.   They have been created by the Chamber of Commerce Act. According to that Act, they are public law institutions (Körperschaften öffentlichen Rechts).   Their functions, conferred upon them by the Act, include the elimination and prevention of unfair trade practices and the furtherance of professional education and training.   They thus exercise, by virtue of the relevant legislation, in areas of public interest a form of public control over the members of the trades to which the Chamber of Commerce Act applies.           In these circumstances the Commission concludes that the Chambers of Trade, by virtue of their legal nature and their public functions, cannot be considered as associations within the meaning of Article 11 (Art. 11) of the Convention (cf.   Eur.   Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 26 et seq., paras. 63 - 65).           It is therefore not necessary to determine the question whether the right to freedom of association under Article 11 (Art. 11) includes, by implication, a "negative right" not to be compelled to join an association (cf.   Eur.   Court H.R., Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 21, para. 51).           The applicant does not allege that he is prevented from joining any association falling within the scope of application of Article 11 (Art. 11).   His complaint is based solely on the compulsory membership in the Carinthian Chamber of Trade.   Having regard to the foregoing considerations, it follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 27 para. 2 (Art. 27-2).           As the applicant's membership of the Carinthian Chamber of Trade is not in breach of the provisions of the Convention his obligation to pay an inscription fee is justified under paragraph 2 of Article 1 of Protocol No. 1 (P1-1).   Furthermore, as the applicant has not shown that other businessmen in a comparable situation do not have to pay the fee in question, no issue under Article 14 (Art. 14) of the Convention arises.           It follows that there is no appearance of a violation of these provisions.   These complaints must accordingly be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission          President of the Commission                (H.C. KRÜGER)                       (C.A. NØRGAARD)