Freedom of Assoociaiton
Protection for freedom of association covers a range of matters. As with freedom of assembly, it imposes negative and positive obligations on states. The negative obligation is not to interfere with the right. The positive obligations may entail obligations to protect and support the right from interference by the state itself and others.
States must guarantee the proper functioning of the freedom. This is so even when they disagree with the matters concerned or the associations concerned hold opinions contrary to the majority or which the majority even find annoying or disagree with, strongly. The freedom applies to political parties, trade unions, religious associations, sports clubs and others.
An association need not be formally established by law. A refusal to register associations where registration is required may be an interference with the right. States do not have a positive obligation to recognise all associations.
This may provide a framework for registration and recognition. Interference with the activities of the association may potentially breach the protection.
The protections cover other associations, including social, economic and political associations, cultural and religious associations and others. The freedom of religious association must be interpreted in conjunction with the protection of freedom to manifest and express religious belief guaranteed by Article 9.
Interference with the right of association may be legitimate. It is justified if it pursues one of the legitimate aims of national security, public safety, prevention of disorder or crime, protection of health or morals, and protection of freedom of others and is necessary for the achievement of those aims.
The European Court of Human Rights approaches cases differently, depending on the type of association. The right to form political parties is a basic part of democracy.
Only convincing and compelling reasons will justify the freedom being restricted. A ban, dissolution or refusal of registration will be looked on as suspect in the absence of a clear justification.
States may have a legitimate interest in regulating the parties. However, the limitation must not be any more than necessary in a democratic society. The state must guarantee pluralism. Exceptions must be limited and narrowly interpreted. The margin of appreciation for states is more limited than in other cases.
A ban and dissolution of a party in Turkey which sought to remove secularism were deemed proportionate in the circumstances. There must be a risk to democracy which is sufficiently imminent. The actions and speeches of the members of the party were clearly imputed to the party and the proposals advocated were incompatible with the concept of a democratic society in it that thy advocated religious fundamentalism, a system incompatible with a democratic society.
The aims of restrictions on the right must be a legitimate aim necessary in a democratic society. Democracy, however, does not require that the views of the majority pertain. There must be a right for the minority to express their views and obtain fair and proper treatment. Majorities must not abuse their position. Freedom of association is particularly important as it may be valuable in allowing minorities to express and preserve their identity and rights.
Even if an organisation’s aim is to undermine the state, it may be capable of being upheld as legitimate. The state may require registration, but the requirements and formalities must be reasonable and proportionate.
The right to form trade unions is protected. There is a right not to join a trade union which may be asserted against a closed shop.
The fact that a person may be obliged to support financially private organisation that advocates policies contrary to his own view may not be legitimate. National law enjoys a considerable latitude, but it must be transparent and there must be accountability.
Rules which overly regulate associations may interfere with the right. Associations such as trade unions are generally entitled to fix their own rules. However, rules may prevent them from abusing a dominant position in a particular industry.
The Article requires states to ensure that trade unions can effectively carry out their functions in protecting members’ interests. They may have the right to be heard by employers, the right to prevent incentives to renounce membership of a union and the right to undertake collective bargaining. They do have a right to engage with a particular employer or an unlimited right to strike for recognition or to negotiate.
EU Charter Protection
The Charter of Fundamental Rights declares that everyone has the right to freedom of peaceful assembly and freedom of association at all levels in, particularly in political, trade union and civic matters. This implies the right of everyone to form and to join trade unions for the protection of his or her interest. Political parties at Union level contribute to expressing the political will of the citizens of the EU.
Issues have arisen as to the extent to which the freedom to form trade unions and take industrial action is compatible with the fundamental freedoms of capital, goods, services and persons under the EU Treaties.
The European Court of Justice takes a view that the freedom of association under European Union law protects the rights to collective action and the right to strike. However, it is not an absolute right and is subject to limitations and restrictions. There is a right to join and not to join a trade union under EU law.
As under the Convention, the right to freedom may be subject to restrictions for legitimate purposes. The European Court has taken the view that neither the fundamental freedoms nor the rights to form associations etc. are absolute. This recognises that the union has a social as well as an economic purpose and accordingly, free movement must be reconciled with working and living conditions.