Information Note on the Court’s case-law 197
June 2016
Geotech Kancev GmbH v. Germany - 23646/09
Judgment 2.6.2016 [Section V]
Article 11
Article 11-1
Freedom of association
Alleged breach of applicant company’s negative right to freedom of association: no violation
Facts – The applicant was a company engaged in the building industry. Although not a member of the employers’ associations, it was nevertheless obliged to contribute financially to the Social Welfare Fund jointly set up by these associations and the trade union in the building industry, as the relevant collective agreements in the industry had been declared generally binding by the Federal Ministry for Labour and Social Affairs.
In its application to the European Court, the applicant company complained that the obligation to participate financially in the Fund violated its right to freedom of association provided by Article 11 of the Convention.
Law – Article 11: The Court noted that it was legally impossible for the applicant company directly to become a member of the Social Welfare Fund and that it was not obliged to become a member of one of the employers’ associations in the building industry.
The Court reiterated that the obligation to contribute financially to an association could resemble an important feature in common with that of joining an association and could constitute an interference with the negative aspect of the right to freedom of association. There were nevertheless a number of differences which distinguished the present case from those in which the Court had found that such an obligation constituted an interference with the negative aspect of the right to freedom of association.*
Firstly, the applicant company had to contribute financially to social welfare entitlements in the interest of all employees working in the building industry, as these contributions could only be used to implement and administer the Fund and to pay out benefits to employees in the building industry. For that reason, the contributions which the applicant was required to pay could not be considered to be a membership contribution to an employers’ association.
Secondly, members of the associations that set up the Social Welfare Fund did not receive reductions in their membership fees, or more favourable treatment than non-members in other areas, nor had they have any direct control over the use of the financial contributions of the Fund. Moreover, all contributing companies, whether or not members of an employers’ association, received full information about the use to which their contributions were put. There was a high level of transparency surrounding the operation of the Fund.
Thirdly, unlike the position in Vörður Ólafsson, there was a significant degree of involvement in and control of the scheme by public authorities.
In conclusion, while it was true that the impugned obligation could be regarded as creating a de facto incentive for the applicant company to join one of the employers’ associations, that incentive was too remote to strike at the very substance of the right to freedom of association and therefore did not amount to an interference with the applicant company’s freedom not to join an association against its will.
Conclusion: no violation (unanimously).
The Court also found, unanimously, no violation of Article 1 of Protocol No. 1, as a fair balance had been struck between the general interest in ensuring the social protection of all employees working in the building industry and the applicant company’s right to peaceful enjoyment of its possessions.
* See, for example, Vörður Ólafsson v. Iceland, 20161/06, 27 April 2010, Information Note 129.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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