CEDH · CASELAW;REPORTS;ENG — 16 mai 1995

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 19576/92                              Teuvo Komulainen                                   against                                   Finland                          REPORT OF THE COMMISSION                          (adopted on 16 May 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2     II.    ESTABLISHMENT OF THE FACTS       (paras. 16 - 33). . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16 - 24) . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law and legal instruments of the            Council of Europe            (paras. 25 - 33) . . . . . . . . . . . . . . . . . . . . 4              1.     The protection of the negative freedom of                  association                  (paras. 25 - 26) . . . . . . . . . . . . . . . . . 4              2.     The duty to accept a municipal position of trust                  (paras. 27 - 29) . . . . . . . . . . . . . . . . . 4              3.     The requirement of a fair representation in                  municipal federative bodies of the groups                  represented in the relevant municipal councils                  (paras. 30 - 31) . . . . . . . . . . . . . . . . . 5              4.     The European Charter of Local Self-Government                  (paras. 32 - 33) . . . . . . . . . . . . . . . . . 5   III.   OPINION OF THE COMMISSION       (paras. 34 - 60). . . . . . . . . . . . . . . . . . . . . . . 7         A.    Complaint declared admissible            (para. 34) . . . . . . . . . . . . . . . . . . . . . . . 7         B.    Points at issue            (para. 35) . . . . . . . . . . . . . . . . . . . . . . . 7         C.    As regards Article 11 of the Convention            (paras. 36 - 51) . . . . . . . . . . . . . . . . . . . . 7              CONCLUSION            (para. 52) . . . . . . . . . . . . . . . . . . . . . . .10                                TABLE OF CONTENTS                                                                    Page         D.    As regards Article 14 of the Convention            in conjunction with Article 11            (paras. 53 - 57) . . . . . . . . . . . . . . . . . . . .10              CONCLUSION            (para. 58) . . . . . . . . . . . . . . . . . . . . . . .11         E.    Recapitulation            (paras. 59 - 60) . . . . . . . . . . . . . . . . . . . .11   CONCURRING OPINION OF Mr. H. DANELIUS . . . . . . . . . . . . . . .12   CONCURRING OPINION OF Mr. H.G. SCHERMERS JOINED BY Mr. G. RESS . . . . . . . . . . . . . . . . . . . . . . .14   PARTIALLY DISSENTING OPINION OF Mr. C.L. ROZAKIS. . . . . . . . . .15   APPENDIX:   DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY            OF THE APPLICATION . . . . . . . . . . . . . . . . . . .17   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Finnish citizen, born in 1942 and resident at Padasjoki. He is a former municipal director.   3.     The application is directed against Finland. The respondent Government were represented by their Agent, initially Mr. Tom Grönberg, then Director-General for Legal Affairs, Ministry for Foreign Affairs, Helsinki, and subsequently Mr. Holger Rotkirch, present Director- General.   4.     The case concerns the requirement that the applicant should have been a member of a certain political party in order to be eligible for a position of trust to which that party was entitled. This requirement allegedly violated his right to freedom of association and discriminated against him because he is politically independent. The applicant principally invokes Articles 11 and 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 16 January 1992 and registered on 3 March 1992.   6.     On 11 October 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the complaint under Articles 11 and 14 of the Convention.   7.     The Government's observations were submitted on 21 December 1993. The applicant replied on 11 February 1994.   8.     On 10 October 1994 the Commission declared the applicant's complaint under Articles 11 and 14 of the Convention admissible. It declared the remainder of the application inadmissible.   9.     The text of the Commission's decision on admissibility was sent to the parties on 20 October 1993 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 8 December 1994, to which the applicant replied on 9 January 1995.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN   12.    The text of this Report was adopted on 16 May 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   14.    The Commission's decision on the admissibility of the application is attached to the Report.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   16.    On 8 February 1989 the Federative Council (liittovaltuusto, förbundsfullmäktige) of the Municipal Health Care Federation (kansan- terveystyön kuntainliitto, kommunalförbundet för folkhälsoarbetet) of Asikkala and Padasjoki elected the applicant, who was the Municipal Director of Padasjoki, member of the Health Care Board (terveys- lautakunta, hälsovårdsnämnden) of the Federation.   17.    A member of the municipality of Padasjoki appealed against, inter alia, the applicant's election, alleging that the composition of the Health Care Board was unlawful, since the so-called joint lists of candidates (yhteislista, gemensam lista) which had been presented in the respective municipal elections at Asikkala and Padasjoki in 1988 should have been entitled to more than one representative on the Board. The appellant argued, inter alia, that the total votes collected by the three joint lists should have formed the basis for allotting seats on the Board, in which case the lists should have been entitled to several representatives. The appellant finally objected to the applicant's election as an independent member of the Health Care Board, since no actually independent candidate had stood for election in the municipal elections at Padasjoki in 1988.   18.    On 19 November 1990 the County Administrative Court (läänin- oikeus, länsrätten) of Häme found, inter alia, that the applicant's election was unlawful. It considered that the joint lists of candidates were to be considered as separate groups. The votes collected by the respective lists in the municipal elections should therefore not have been added together when the seats on the Health Care Board were allotted for the purpose of ensuring a fair representation of the groups represented in the respective municipal councils (kunnan- valtuustot, kommunfullmäktige) pursuant to section 122, subsection 4 of the 1976 Act on Municipalities (kunnallislaki 953/76, kommunallag 953/76; hereinafter "the 1976 Act").   19.    Having regard to the total votes collected by the parties and other groups represented in the respective municipal councils, the County Administrative Court furthermore found that the Health Care Board should have been composed of, inter alia, four members representing the National Coalition Party r.p. (Kansallinen kokoomus r.p., Nationella samlingspartiet r.p.; hereinafter called "the National Coalition Party"). It noted, however, that only three of the board members "represented" that party. In addition to representatives of other parties and a representative of one of the joint lists, one member (the applicant) was independent of all the groups represented in the relevant municipal councils. The Board had therefore not been composed in conformity with section 122, subsection 4 of the 1976 Act.   20.    In its appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) the Board of the Municipal Federation (liittohallitus, förbundsstyrelse) objected to the applicant's obligation to be a member of the National Coalition Party in order to be eligible for a seat on the Health Care Board.   21.    In the proceedings before the Supreme Administrative Court the National Coalition Party acknowledged that the applicant was not a member of that party or any other party or group represented in the Municipal Council of Padasjoki. The party had, nevertheless, already at the time of his election accepted him as one of its representatives on the Health Care Board. The party had subsequently maintained its consent to this arrangement.   22.    On 16 August 1991 the Supreme Administrative Court upheld the County Administrative Court's decision by three votes against two. The majority considered, inter alia, that in order to comply with section 122, subsection 4 of the 1976 Act the Federative Council should have elected four persons "representing" the National Coalition Party on the Health Care Board. In addition to the three members of that party who had been elected to the Board the applicant had been elected as being independent both of the parties and of the other groups. Under section 122, subsection 4, however, a non-member of a party could not be elected to the Board as a representative of that party. The applicant's election therefore violated section 122, subsection 4.   23.    The minority of the Supreme Administrative Court considered that the applicant's election had complied with section 122, subsection 4 of the 1976 Act, since the right of someone to represent a group was not dependent on his or her membership thereof, even if that group was a party. The minority noted that the National Coalition Party had continuously consented to being represented by the applicant in his capacity as an independent member of the Health Care Board.   24.    In the light of the Supreme Administrative Court's decision the Federative Council on 9 October 1991 proceeded to a new election of members of the Health Care Board. The applicant was not re-elected.   B.     Relevant domestic law and legal instruments of the Council of       Europe         1.    The protection of the negative freedom of association   25.    Under the 1919 Constitution Act (Suomen Hallitusmuoto 94/19, Regeringsform för Finland 94/19; hereinafter "the Constitution Act") Finnish citizens are entitled to form associations without first obtaining a permission to this end, provided the aims of the associations do not violate the laws and are not contrary to public decency (section 10, subsection 1). Finnish citizens are equal before the law (section 5).   26.    The Standing Parliament Committee for Constitutional Matters (eduskunnan perustuslakivaliokunta, riksdagens grundlagsutskott) has considered that section 10 of the Constitution Act also covers the right not to join an association (Committee Opinion 6/88).         2.    The duty to accept a municipal position of trust   27.    No one shall decline a municipal position of trust, unless he or she is sixty years of age or more, if he or she has occupied the same position of trust or another position in the same body during the preceding four years or if he or she has occupied a municipal position of trust during eight years or more. A refusal may also be based on another weighty reason and shall, with one exception not relevant here, be examined by the body which elected the person (section 18 of the 1976 Act).   28.    A position of trust shall be occupied by the person elected to it pending the outcome of possible appeal proceedings and, if the election is quashed, until a new election has taken place (section 19, as amended by Act no. 388/81).   29.    The county administrative boards (lääninhallitukset, läns- styrelserna) shall ensure that the administration of municipalities, municipal federations and subsequent consortia is in compliance with the law (section 145, as in force at the relevant time and as subsequently amended by Act no. 979/92). A county administrative board may, for instance, impose an administrative fine on a holder of a position of trust so as to have him fulfil his duties (section 7 of the 1987 Act on County Administrative Boards (lääninhallituslaki 1233/87, länsstyrelselag 1233/87)). A failure duly to serve in a position of trust may also be punishable as an offence in the performance of duties under chapter 40 of the 1889 Penal Code (rikoslaki 39/1889, strafflag 39/1889; extensively amended).         3.    The requirement of a fair representation in municipal            federative bodies of the groups represented in the relevant            municipal councils   30.    Section 122, subsection 4 of the 1976 Act, as in force up to 1 January 1993, reads as follows:         (Finnish)         "Liittohallituksen ja sen alaisten toimielinten kokoonpano       on sovitettava sellaiseksi, että se vastaa jäsenkuntien       valtuustoissa edustettuina olevien eri ryhmien       kunnallisvaaleissa saamaa ääniosuutta kuntainliiton       alueella."         (English)         "The composition of the Board of a Municipal Federation as       well as of its subordinated bodies shall be determined so       as to correspond to the votes received within the area of       the Federation by the different groups represented in the       municipal councils of the members of the Federation."   31.    In accordance with an amendment to the 1976 Act which entered into force on 1 January 1993 the municipal federations have been replaced by municipal consortia (kuntayhtymät, samkommuner). Each consortium shall draw up a charter which is not subjected to approval by any State authority. The charter shall specify how the groups represented in the relevant municipal councils shall be represented in the bodies of the consortium (section 106, subsection 3, paras. 4 and subsection 5, both as added by Act no. 979/92). If the charter is not amended to include a provision on representation, the above-mentioned section 122, subsection 4 shall continue to be applicable to an appropriate extent (see the transitional provision in Act no. 979/92).         4.    The European Charter of Local Self-Government   32.    The European Charter of Local Self-Government (European Treaty Series no. 122) entered into force with regard to Finland on 1 October 1991. Article 7 para. 3 thereof reads as follows:         "Any functions and activities which are deemed incompatible       with the holding of local elective offices shall be       determined by statute or fundamental legal principles."   33.    According to the travaux préparatoires, the above paragraph provides:         "... that disqualification from the holding of local       elective office should only be based on objective legal       criteria and not on ad hoc decisions. Normally this means       that cases of incompatibility will be laid down by statute.       However, cases have been noted of firmly entrenched, non-       written legal principles which seem to provide adequate       guarantees. ..." (p. 15 of the report, as published by the       Council of Europe in 1986).   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   34.    The Commission has declared admissible the applicant's complaint that he was required to be a member of the National Coalition Party in order to be eligible for a position of trust allotted to that party and that this requirement discriminated against him because he is politically independent.   B.     Points at issue   35.    The issues to be determined are whether there has been a violation of Article 11 (Art. 11) of the Convention and/or a violation of Article 14 in conjunction with Article 11 (Art. 14+11).   C.     As regards Article 11 (Art. 11) of the Convention   36.    Article 11 (Art. 11) of the Convention 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 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."   37.    The applicant complains that the annulment of his election to the Health Care Board violated his negative freedom of association. He recalls that as from his election on 8 February 1989 up to the decision of the Supreme Administrative Court of 16 August 1991 he was obliged to occupy his position of trust on pain of possibly facing criminal charges and punishment. He emphasises that the issue in his case is not whether he could have become eligible for a position of trust to which a group other than a party might have been entitled under section 122, subsection 4 of the 1976 Act. The questions are whether eligibility for a position of trust to which a party or other group is entitled under that provision presupposes membership in that party or group or whether it should suffice that the party or group consents to its being represented even by a non-member.   38.    The applicant accepts that section 122, subsection 4 of the 1976 Act seeks to ensure, in accordance with the outcome of the respective municipal elections, a fair representation in the bodies of the Municipal Federations of the parties and other groups which have obtained representation in the respective municipal councils. This provision does not, however, prescribe party membership as a condition of eligibility for a position of trust of a federative body. At any rate, the voters' opinions can be fairly represented without imposing an inflexible requirement of party membership. This is particularly true in the applicant's case, since the party at issue had unequivocally accepted him as its representative without requiring him to become a member thereof.   39.    The applicant therefore submits that, contrary to the ratio of section 122, subsection 4 of the 1976 Act, its interpretation in his case affords party members a privileged position. This should be contrasted with the applicant's negative freedom of association which is protected not only by Article 11 (Art. 11) of the Convention but also by the Constitution Act and therefore must have priority over the 1976 Act.   40.    The applicant maintains that there is no pressing need for reserving positions of trust to which a certain party is entitled under section 122, subsection 4 of the 1976 Act exclusively to members thereof. Only a small percentage of those entitled to vote in Finnish elections, more precisely about 500.000 out of a total of some 3.800.000 persons, belong to a party. The membership requirement therefore unjustifiably favours the parties at the expense of the large majority of voters who are not party members.   41.    The applicant finally considers that the interpretation of section 122, subsection 4 of the 1976 Act in his case implies that lay judges of District Courts (käräjäoikeudet, tingsrätter) are also required to be members of a party, since they are considered to hold a municipal position of trust to which they are elected by a proportional vote. He also refers to Article 7 of the European Charter of Local Self-Government (see paras. 32-33 above).   42.    The Government submit that the annulment of the applicant's election to the Health Care Board did not interfere with his negative freedom of association. They concede that pending the outcome of the appeal proceedings he was obliged to occupy his seat on the Board. His negative freedom of association was, nevertheless, not struck at its very substance by the requirement of party membership as finally imposed on him by virtue of the Supreme Administrative Court's decision. Although as a non-member he could not legally be elected to a position of trust to which the National Coalition Party was entitled, he would, according to the Government, in principle have been eligible for a position of trust allotted to a group other than a party.   43.    Should the Commission find an interference with the applicant's negative freedom of association, the Government submit that it was justified under Article 11 para. 2 (Art. 11-2). The requirement of party membership was prescribed by the 1976 Act, as interpreted by the Supreme Administrative Court in his case. The Government admit, however, that obviously not all consequences of that decision of the Supreme Administrative Court were foreseeable when section 122, subsection 4 of the 1976 Act was enacted.   44.    In the Government's view the annulment of the applicant's election, moreover, served the legitimate aim of protecting the rights and freedoms of others. Section 122, subsection 4 of the 1976 Act seeks to secure that the political parties and other groups represented in the relevant municipal councils are also fairly represented in the municipal federations. It further safeguards party members from a situation where their party would be represented by a non-member. The Government admit, however, that in the applicant's case the members of the National Coalition Party were involved in accepting him as a party representative.   45.     The Government furthermore consider that the annulment of the applicant's election was necessary in a democratic society in pursuance of the above-mentioned aim. They emphasise that, in principle, section 122, subsection 4 of the 1976 Act also entitles a group of politically independent candidates to a certain number of positions of trust to be determined in view of the outcome of the municipal elections. Such a group is thus placed on an equal footing with a party. In the present case, however, no such group had presented candidates in the relevant municipal elections. The Government therefore adhere to the County Administrative Court's finding that the applicant was to be considered independent of all the groups represented in the municipal councils.   46.    The Government conclude that, even as interpreted in the applicant's case, section 122, subsection 4 of the 1976 Act does not create privileges for the parties. Finally, having regard to the pressing social need for requiring that a political party should be represented in the bodies of a municipal federation solely by its members, the respondent State's margin of appreciation has not been exceeded in the applicant's case.     47.    The Commission recalls that Article 11 (Art. 11) must be considered to protect also the negative freedom of association, i.e. the right not to join and not to be a member of an association, although the scope of this protection remains to be defined. A form of compulsion striking at the very substance of a right guaranteed by Article 11 (Art. 11) may in itself amount to an interference with that right (cf. Eur. Court H.R., Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, pp. 15-17, paras. 35-37).   48.    The Commission is not called upon to express a general opinion on the Finnish system for ensuring that the composition of the municipal federative bodies and subsequent consortia correspond fairly to the opinions expressed in the municipal elections. Nor is it for the Commission to pronounce itself on the question whether the annulment of the applicant's election to the Health Care Board was in violation of the European Charter for Local Self-Government. The Commission must limit its examination to whether on the particular facts of the case there was an interference with the applicant's negative freedom of association as guaranteed by Article 11 para. 1 (Art. 11-1) of the Convention. In the affirmative, it remains to be determined whether this interference was justified under Article 11 para. 2 (Art. 11-2).   49.    The Commission observes that the applicant was at no stage forced to join the National Coalition Party as a result of his election to the Health Care Board. It is true that the applicant had a duty under domestic law to accept and occupy his seat on the Board while the appeal proceedings concerning his election were pending. Throughout this period, however, and even after the Supreme Administrative Court's annulment of his election he had a genuine choice between, on the one hand, joining the party which he was already officially representing on the Health Care Board and, on the other hand, giving up his seat on that body. It would appear that no sanction would have been imposed on him if he had chosen the second alternative.   50.    The Commission furthermore observes that the applicant was already at the time of his election to the Health Care Board employed by the municipality of Padasjoki as its Director. The board membership does not therefore appear to have been of any particular significance to him, either financially or otherwise (cf., e.g., the above-mentioned Sigurdur A. Sigurjónsson judgment, pp. 15-17, paras. 35-36). By no means could it be placed on an equal footing with that of, for instance, a full-time politician. Moreover, the fact that the applicant had agreed to represent the National Coalition Party on the Health Care Board indicates that there were no insurmountable ideological differences between himself and that party which would, for reasons of conscience, have made it impossible for him to join the party in order to retain his seat on the Board.   51.    Taking the above circumstances as a whole, the Commission considers that the annulment of the applicant's election to the Health Care Board did not strike at the very substance of his right to negative freedom of association and therefore did not interfere with that right. Accordingly, Article 11 (Art. 11) has not been violated.   CONCLUSION   52.    The Commission concludes, by 27 votes to 1, that in the present case there has been no violation of Article 11 (Art. 11) of the Convention.   D.     As regards Article 14 (Art. 14) of the Convention in conjunction       with Article 11 (Art. 11)   53.    Article 14 (Art. 14) reads as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."   54.    The applicant complains that the quashing of his election to the Health Care Board furthermore discriminated against him in the enjoyment of his negative freedom of association because he is politically independent.   55.    The Government submit that the applicant has not been discriminated against as a result of his lack of eligibility for the position of trust to which the National Coalition Party was entitled. Not being a member of that party, his situation was similar to that of members of other parties, who were equally ineligible for a position of trust allotted to the National Coalition Party. Furthermore, the difference in the treatment of the applicant in comparison with that facing members of the National Coalition Party had the legitimate aim of reserving, for that party, a number of positions of trust corresponding to its share of the votes in the municipal elections. Achieving this aim required that the applicant be a member of the National Coalition Party. Neither were the means employed to this end disproportionate to the aim pursued. The Government therefore conclude that there existed an objective and reasonable justification for the applicant's lack of eligibility for a position on the Health Care Board as a representative of the National Coalition Party.   56.    The Commission recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (Art. 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one of more of the latter (e.g., Eur. Court H.R., Karlheinz Schmidt v. Germany judgment of 18 July 1994, para. 22, to be published in Series A no. 291-B).   57.    The Commission has found above (para. 51) that the annulment of the applicant's election to the Health Care Board did not strike at the very substance of his right to negative freedom of association. While it accepts that the applicant's complaint may nevertheless fall within the ambit of Article 11 (Art. 11), it does not find any discrimination against the applicant in regard to his enjoyment of the rights under that provision. It considers, in particular, that any discrimination to which the applicant may have been subjected concerned his right to be a member of the Health Care Board, i.e. a right not guaranteed by the Convention. Accordingly, there has been no violation of Article 14 (Art. 14) of the Convention read in conjunction with Article 11 (Art. 11).     CONCLUSION   58.    The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 (Art. 14) of the Convention in conjunction with Article 11 (Art. 11).   E.     Recapitulation   59.    The Commission concludes, by 27 votes to 1, that in the present case there has been no violation of Article 11 (Art. 11) of the Convention (para. 52).   60.    The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 (Art. 14) of the Convention in conjunction with Article 11 (Art. 11)(para. 58).   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                          (Or. English)                    CONCURRING OPINION OF MR. H. DANELIUS         The so-called negative freedom of association, i.e. the right not to join and not to be a member of an association, has been at issue before the European Court of Human Rights in the Young, James and Webster case (Eur. Court H.R., Young, James and Webster judgment of 13 August 1981, Series A no. 44) and in the Sigurdur A. Sigurjónsson case (Eur. Court H.R., Sigurdur A. Sigurjónsson judgment of 30 June 1993, Series A no. 264). It appears from this case-law, and in particular from the latter judgment, that the negative freedom of association is in principle protected by Article 11 of the Convention. The two judgments also show that there may in certain circumstances be a breach of Article 11 when a person is dismissed from employment or denied the right to exercise his trade or profession on the ground that he is not a member of a certain association. In these two cases there were certain characteristic features: on the one hand, there was no special connection between the membership of an association and the nature of the employment and, on the other hand, the loss of the employment entailed considerable hardship for the persons concerned.         On the other hand, there may well be other cases where membership of a certain association is a fully justified condition for employment which could not be considered to raise an issue in regard to Article 11 of the Convention. For instance, a political party or another political organisation may find it essential that all its employees, or its employees in special functions, are members of that political party or that organisation in order to be sure that the employees share the same political ideology and can be expected to be loyal to the party or organisation. There is a similar situation if a church, a religious sect or a religious school adopts the policy of only employing persons who have demonstrated their faith by becoming members of the relevant church or a particular religious organisation. In such circumstances there is a clear link between membership of an organisation and employment. Consequently, there could be no question of a violation of the freedom of association of persons who, without being members, would wish to be employed by such a political or religious organisation.         The same reasoning could be applied, a fortiori, to eligibility to various political positions of trust, which are of a special character and are also of lesser importance to the individual than employment. In most cases it is normal that membership of political bodies is reserved - entirely or mainly -for persons who hold certain political views, and it would generally seem acceptable that membership of a political party is chosen as a criterion for the right to fulfil such functions. In fact, this criterion is often appropriate in order to avoid ambiguity and make the system clear and stable.         It is true that in the present case the National Coalition Party accepted the applicant as its representative on the Health Care Board despite the fact that he was not a member of that party. However, even in these circumstances it cannot, for the purposes of Article 11 of the Convention, be considered unreasonable or irrelevant for the Finnish courts to have applied membership of a party as a criterion for membership of the Health Care Board. As a supplementary consideration, it should also be noted that the refusal to accept the applicant as a member of the Health Care Board did not involve any hardship for him which could be compared with the serious consequences which arose for the applicants in the Young, James and Webster and Sigurdur A. Sigurjónsson cases.         I am therefore of the opinion that in this case there has been no interference with the applicant's right under Article 11 of the Convention.         As I have already found, on the basis of the reasoning above, that membership of a political party was in this case an acceptable criterion, I consider that the discrimination aspect referred to by the applicant does not raise a separate issue which has to examined on the basis of Article 14 of the Convention.                                                          (Or. English)                  CONCURRING OPINION OF Mr. H.G. SCHERMERS                          JOINED BY Mr. G. RESS         I agree with those members who find no violation of Article 11, nor of Article 14 in the present case, but my reasoning differs from that expressed in the text of the Report. In my opinion the freedom of association is not at stake.         A health care board of a municipal federation or consortium is established for the joint administration of costly municipal services. In order to keep a balance with other costly services it seems desirable to create some uniformity of policy between the municipality and the health care board of the federation or consortium to which the municipal belongs. The coordination of policy is achieved by section 122, subsection 4 of the 1976 Act which provides that the composition of the board shall correspond to the representation in the councils of the participating municipalities. In fact, a health care board is not composed of individual experts but rather of representatives of the same political parties which decide on budgetary items in the municipal councils.         I do not see any objection to a system in which this kind of board is composed of delegates of political parties. One may expect some minimum of party discipline from party members. One may therefore also expect that the representatives of the political parties will strive for the same policy decisions (in particular with respect to the spending of available funds) in a federative health care board as in other municipal organs.         As a federative health care board is composed of the political parties of the municipalities and the applicant does not properly represent a political party, he has no right to sit on such a board. I do not see that this affects his freedom of association. For any function in a political party (such as president, secretary, or representative in the municipal council or in a board) one must be a party member. If the applicant does not want to join the party, he is not qualified for a function representing that party. I cannot see that this infringes in any way Article 11.         Article 14 prohibits discr