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Cite as: [2008] ECHR 1782

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FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20161/06
by Vörður ÓLAFSSON
against Iceland

The European Court of Human Rights (Fourth Section), sitting on 2 December 2008 as a Chamber composed of:

Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 16 May 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

The applicant, Mr Vörður Ólafsson, is an Icelandic national who was born in 1961 and lives in Reykjavik. He is represented before the Court by Mr Einar Halfdanarson and Mr T. Child, lawyers practising in Reykjavik and London, respectively.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a Master Builder and is a member of the Master Builders’ Association (hereinafter “the MBA”). Pursuant to the Industry Charge Act No. 134/1993 (hereinafter “the 1993 Act”) he was under an obligation to pay a levy, the so-called “Industry Charge”, to the Federation of Icelandic Industries (hereinafter “the FII”), an organisation of which the applicant was not a member and to which the MBA was not affiliated. The 1993 Act provided that a charge of 0.08% should be levied on all industrial activities in Iceland as defined in the Act. The definition included all activities coming under activity code numbers enumerated in an Appendix to the Act. Private sector enterprises not covered by the code numbers were not subject to the Industry Charge. This was the case, for example, of enterprises in the meat processing, milk processing and fish processing industries. Other enterprises in the food and drink industry were covered. Enterprises entirely in public ownership or established by special statute were not covered (section 2). Revenues from the Industry Charge were to be transferred to the FII, and should be used for the promotion and development of industry in Iceland (section 3). The State Treasury was to receive 0.5% of the charge collected in order to cover the costs of its collection (section 1).

More than 10,000 persons (legal persons and self-employed individuals) paid the Industry Charge. The FII’s membership comprised between 1,100 and 1,200 members (enterprises and self-employed individuals).

In 2003 the FII’s operating revenues totalled ISK 315,800,000; of which ISK 197,359,000 had originated from the Industry Charge transferred to the FII by the State Treasury; ISK 84,973,000 had constituted membership fees and ISK 33,468,000 other income. That same year, the operating expenses had totalled ISK 289,654,000, of which ISK 234,617,000 (81%) had been spent on public projects (involving ISK 197,359,000 of funds derived from the Industry Charge and ISK 37,258,000 of funds from membership fees and other income).^¹

On 8 November 2004 the applicant lodged proceedings against the State with the Reykjavik District Court requesting an order to invalidate the charges imposed on him in respect of the years 2001 to 2004.

By a judgment of 13 July 2005 the District Court found in favour of the State and rejected the applicant’s action.

The applicant appealed to the Supreme Court of Iceland, arguing inter alia that section 3 of the 1993 Act in fact meant that all individuals and companies engaged in particular business activities had to pay a membership due to the FII, irrespective of whether they were members. The applicant considered that Article 14 of the Articles of the Federation, which provided for the membership charge, clearly reflected its nature in that, as was provided therein, FII members paying an Industry Charge transferring to FII should have that part deducted from their membership fees. Thus by the levy and collection of the charge, membership of the FII was in fact made compulsory for others, although they enjoyed no rights vis-à-vis the FII. Consequently the industry charge was merely a membership fee to the FII. The applicant submitted that he was a member of the Master Builders’ Association, to which he paid his dues and through which he considered his interests to be best served, and he had no wish to be a member of the FII. The latter pursued policies with which he disagreed and which were contrary to his interests. The compulsory membership of the FII was incompatible with his right to freedom of association as protected by Article 74 § 2 of the Constitution and Article 11 of the Convention. The applicant in addition argued that by virtue of the 1993 Act he was unjustifiably taxed in excess of other taxes and that, under the Act, a limited group was being taxed "for the benefit of another limited group or the restricted interests of others". Finally, he submitted that the imposition of the charge amounted to discrimination in breach of Article 65 of the Constitution, as the taxation was dependent upon the ownership structure of an enterprise, and the enumeration of activity code numbers, on which the taxation was based, was haphazard in nature.

The State disputed the applicant’s submission that the Industry Charge constituted a membership fee to the FII. They argued that by law it was a tax levied by the State on particular groups of individuals and legal persons, in accordance with general and applicable standards, without anything being required in return. By the same Act the decision had been taken to have the charge transferred to the Federation of Icelandic Industries, which was to use it for the promotion and development of Icelandic industry. Such an allocation of tax revenues to an association provided for by law did not entail that those who paid the relevant tax were thereby compelled by law to become members of it. The charge was not expected to be used for the benefit of the members alone, but for the benefit of all industries and industrial development in Iceland, under the supervision of the Ministry of Industry. Any discounts on membership fees were decided unilaterally by the FII, without any connection to the assessment and collection of the charge. The State also denied that the 1993 Act involved discrimination between persons who were in the appellant’s situation and those who enjoyed an exemption from the charge. It was a reasonable and objective arrangement to exempt public enterprises from the charge, and it was in the nature of things that the considerations that applied to companies in public ownership were different from those related to private enterprises. The State also argued that public support for industry and industrial development sometimes took the form of launching industrial activities that others were not capable of initiating. Finally, the number of publicly owned industrial enterprises had been greatly reduced in recent years. The State also disputed the allegation that the enumeration of activity code numbers governing the taxation had been haphazard.

By a judgment of 20 December 2005 the Supreme Court, by four votes to one, rejected the applicant’s appeal and upheld the District Court’s judgment.

“As mentioned in the District Court’s judgment, the Supreme Court rendered a judgment on 17 December 1998 in case no. 166/1998, Gunnar Pétursson v. the Republic of Iceland, published at page 4406 of the Court’s Reports for that year. The appellant in that case requested invalidation of his assessment of the Industry Loan Fund charge and the industry charge in the years 1995 and 1996. He based his case on arguments that are to a significant degree identical to those invoked by the appellant in the present case. The view of the respondent is accepted that the aforementioned case must be regarded as a precedent in the case now to be resolved, to the extent the issues raised by the appellant’s submissions in support of his present requests were resolved in that case.

In the earlier case the appellant, as here, maintained that by the assessment of the industry charge payable by him, which is to be transferred to the Federation of Icelandic Industries, he was compelled to be a member of it. The Supreme Court mentioned in its judgment that although the charge was transferred to the said Federation, it was to be used for a certain purpose, see section 3 of the 1993 Act, and did not constitute a grant to the Federation. The use of the revenues was subject to control by the Ministry of Industry. The Court accepted that this arrangement did not involve obligatory membership of the Federation of Icelandic Industries in contravention of the Constitution and the European Convention. It also noted that even if the Federation of Icelandic Industries might have exceeded the boundaries laid down in the Act, this could not have the effect of invalidating the assessment of the charge with respect to the appellant. With this in mind, and in other respects by reference to the grounds stated in the judgment appealed from, the Court must reject that the appellant’s arguments in this regard may lead to a granting of his request. Bearing in mind that the Federation of Icelandic Industries is under the legal duty of using the revenues from the industry charge for promoting Icelandic industries and industrial development, and consequently for the benefit of the activities taxed, the Court cannot accept, either, that the legislator thus exceeded his powers.

The appellant considers that equality was not respected, since enterprises in public ownership may be exempted from the charge. As regards this argument it must be noted that various factors distinguish enterprises in public ownership from privately owned enterprises, and in various fields their taxation is governed by different considerations, as seen in Icelandic tax legislation in general. In his case preparation, the appellant did not present a comparison of his situation vis-à-vis any particular public enterprises. It has not been established that any discrimination has taken place between the appellant and the parties to whom the exemptions of the Act apply Finally, the appellant bases his request on the assertion that the activity code enumeration, by reference to which the taxation according to section 2 (1) of the 1993 Act takes place, is haphazard in nature. The charge is levied on industry, subsequently defined as any activity coming under the activity code numbers enumerated in a classification of Icelandic business activities in an Appendix to the 1993 Act, as amended by Act No. 81/1996. Industry, thus defined, does not only cover manufacturing industry, but also processing and service, including the construction industry. This circumscribes the activities to be included in the term "industry" within the meaning of the Act, distinguishing them from other fields of economic endeavour, including activities that have developed within the fields of agriculture and fishing. Such classification of economic activity has furthermore been recognised as a basis for taxation other than the industry charge. The appellant’s claim cannot be granted on the basis referred to.”

The dissenting member of the Supreme Court, Mr Justice Ólafur Börkur Þorvaldsson, gave a separate opinion containing inter alia the following reasons:

“I

The original Industry Charge Act was No. 48/1975. It was stated in the explanatory notes to the relevant bill that it had been submitted in accordance with a recommendation of the FII, the National Federation of Craftsmen, and the Union of Icelandic Co-operative Societies. These provided a detailed exposition, which apparently was adopted verbatim into the explanatory notes. It included the observation that ‘ ... it may be noted that industrial enterprises and self-employed persons in industry collect various dues for public authorities, both from their employees and from the consumers. The tax collection they carry out and are responsible for amounts to thousands of millions annually, entirely without remuneration. It therefore seems reasonable that the State undertakes to collect, for the organisation of these parties, a charge which only amounts to a small fraction of what they collect for the State. This source of revenue should create a financial basis for more active participation by professional federations within Icelandic industry in shaping future industrial development.’ The Act also contained a provision like that of the Act now in effect, that the Ministry of Industry should annually be sent a report on the use of the revenues derived from the charge. In this context, it was mentioned in the explanatory notes that this was a ‘provision intended to ensure that public authorities will be given a reasonable account of how the industry charge is used.’

Act No. 48/1975 was superseded by the present Act No. 134/1993. It was stated in the explanatory notes to that Act that those liable for the charge would be the same as before, but a system of reference to activity code numbers in accordance with the business activity classification of the Bureau of Statistics was adopted in order to ‘remove any doubt as to who are liable for this charge.’ It was furthermore provided that the revenues derived from the charge should be transferred to the FII in their entirety, whereas under the previous Act they had been distributed between the Union of Icelandic Co-operative Societies, the Canning Industry Sales Office, the Federation of Icelandic Industrialists and the National Federation of Craftsmen. At the same time the tax base determination standard was changed, since the municipal business tax, by reference to which the tax base had previously been determined, had been abolished.

According to its Articles, the FII is a federation of enterprises, self-employed persons, trades and master craftsmen’s associations, who jointly want to pursue common goals as enumerated in their Article 2. This Article states the purpose and role of the Federation under ten points, as involving the promotion of Icelandic industries in various ways and supporting the members in one way or another as mentioned there in further detail. According to documents submitted the association involves itself with political issues, for example as regards membership of the European Union and taxation in various fields. According to Article 8, each member of the Federation enjoys voting rights at its meetings in proportion to his paid membership fees. It is provided in Article 14 that the membership fees shall be 0.15% of last year’s turnover at a maximum, but the board of the Federation may decide to collect lower membership fees. The provision went on stating: ‘Parties paying an Industry Charge that is transferred to the Federation shall have that part recognised, and deducted when their membership fees to the Federation are calculated. If the Industry Charge is no longer levied, this deduction shall automatically be abolished. The voting right of each member shall be calculated from his paid membership fee. Management and decision-making within the Federation is, as generally within associations, a responsibility of its board and the managing director.

Documents submitted from the FII relating to the period to which the [applicant’s] requests pertain, do not contain a clear breakdown of how the industry charge is used. It also appears in comment in the Federation’s Reports on the use of the charge for the years 2002 and 2003, that the Federation does ‘not keep separate accounts of whether the individual elements of the Federation’s operations are financed by monies derived from membership fees, financial income, or the industry charge.’ A similar declaration on this point is found in the Report to the Minister on account of the year 2001, but a report for 2004 is not in the case file. The Federation’s Reports to the Minister are also in other respects similar from year to year. In fact the case file seems to permit the inference that part of the charge is used for the general management of the Federation. It cannot be seen from the submissions in this case that the Minister of Industry has made any observations concerning the use of the charge, and in a letter to the Master Builders’ Association of 15 February 2002, following complaints relating to the use of the charge, he expresses the following opinion: ‘As can be clearly seen from the Industry Charge Act, the FII has the unrestricted power to decide how the charge is allocated, and the Ministry of Industry cannot interfere with this as long as it remains within the framework of law.’ It is seen from the submitted Reports of the Federation of Icelandic Industries for the periods to which this case relates that the arrangement has been used for granting those members of the Federation who pay the industry charge a discount from their membership fees equal to its amount. As an example, the following comment in the Federation’s Report to the Minister of Industry for 2003 may be quoted: ‘It may be pointed out that members who pay the industry charge obtain its full reduction from their membership fees to the Federation. It would not be considered proper that companies within the Federation that are liable for the industry charge pay more to the Federation’s activities than companies that are members, but not liable for the charge. In this way all the member companies of the Federation pay to the Federation equally, irrespective of whether they are liable for the industry charge. On the other hand other companies, standing outside, only pay the industry charge and thus make a contribution to the general protection of the interests of Icelandic industries.’

III

Provisions on freedom of association are found in Article 74 of the Constitution .... They contain more detailed rules on freedom of association than those directly expressed in Article 11 of the Convention .... Article 74 (2) of the Constitution, provides: ‘No one may be made bound by duty to be a member of an association. Such duty may however be provided for by law if necessary in order to enable an association to fulfil its legally prescribed role on account of the public interest or the rights of others.’

As noted above, the purpose of the industry charge is, according to the 1993 Act, the promotion of Icelandic industry, but it is also expressly provided that only the part of the charge corresponding to the cost of its collection shall be transferred to the State Treasury. The remainder is transferred to the FII, to be used as the Federation decides. It also seems that an unspecified proportion of the charge is used for the general activities of the Federation as its board may decide. It can furthermore not be seen from the provisions of the 1993 Act that the Minister of Industry is adequately empowered to ensure that the charge be used in the manner provided for in the Act; in this regard, the Minister shall only receive the reports of the Federation. For these reasons the provisions of the 1993 Act cannot be regarded as ensuring that the charge will be used for the activities the Act requires.

The payment of membership dues to an association is generally a chief obligation of the members of an association that requires such payments. The applicant is a member of the Master Builders’ Association. Neither he nor his association is a member of the FII. The applicant does not agree with the Federation’s objectives in various fields, considering, as mentioned in the judgment appealed from, that the Federation acts contrary to his interests, and actually also contrary to those of many others within industry who also pay the industry charge without being members of the Federation. Nevertheless, by virtue of the 1993 Act, the [applicant] is bound by a duty to pay the charge, which, as described, is transferred to a free association with the purpose of protecting the interests of those active in Icelandic industries and those of its members, as these interests are assessed at any particular time by a decision of the managing director and the board, without any significant involvement of public authorities.

When considering the above and the history leading to the 1993 Act, and with a view to the use of the charge, without objection, for the general activities of the Federation, the arrangement provided for in the Act must be seen as involving, in fact, a duty of the appellant to take a significant part in the Federation’s activities without his acquiescence. The above provisions of Article 74 (2) of the Constitution, concerning people’s rights to remain outside associations, must be interpreted as prohibiting an arrangement such as provided for by the 1993 Act, unless that arrangement fulfils the requirements made in the Article’s second paragraph. The Federation of Icelandic Industries is not an association engaged in activities of the kind referred to there. Already for this reason the appellant’s request for cancellation of his assessment of an industry charge payable in the years 2001 to 2004 is to be granted, and the respondent is to be ordered to pay the appellant the costs of the case in the District Court as well as before the Supreme Court.”

B. Relevant domestic law

Article 74 §§ 1 and 2 read:

“Associations may be formed without prior permission for any lawful purpose, including political associations and trade unions. An association may not be dissolved by administrative decision. The activities of an association found to be in furtherance of unlawful objectives may however be enjoined, in which case legal action shall be brought without undue delay for a judgment dissolving the association.

No one may be obliged to be a member of any association. Membership of an association may however be made obligatory by law if this is necessary in order to enable an association to discharge its functions in the public interest or on account of the rights of others.”

The relevant provisions of the Industry Charge Act No. 134/1993 read:

Section 1

“A charge of 0.08%, an Industry Charge, shall be levied on all Icelandic industries as defined in Article 2. The base of the charge shall be turnover as provided for in Article 11 of the Value Added Tax Act, plus any turnover exempted from value added tax in accordance with Article 12 of that Act.

Assessment and collection of the industry charge shall be governed by the provisions of Chapters VII – XIV of the Income and Net Worth Tax Act, as applicable.

The State Treasury shall receive 0.5% of the Industry Charge collected in accordance with the first paragraph to cover the cost of its collection.

The industry charge may be deducted from the income of the operating year in which its base was formed.”

Section 2

“Any activity coming under the activity code numbers enumerated in the Appendix to this Act shall be included in the term ‘industry’.

Enterprises entirely in public ownership, and enterprises formed under particular acts of law to be in public ownership to a significant extent, shall be exempt from the charge, unless a provision to the contrary is made in the act in question.”

Section 3

“Revenues derived from the industry charge shall be transferred to the Federation of Icelandic Industries. The revenues shall be used to promote industry and industrial development in Iceland. The Federation shall annually provide a report to the Ministry of Industry on the use of the revenues.”

Section 7

“The Office of the Auditor-General may demand accounts from institutions, associations, funds and other parties that receive funding or guarantees from the state, and they shall be obliged to provide the Office of the Auditor-General with the materials requested. Furthermore, the Office of the Auditor-General shall be permitted access to, and have the right to examine, the original materials or reports that are created at the same time as invoices are issued against the state or state bodies for work or services that are to be paid, entirely or to a substantial extent, from the State Treasury according to law or work contracts or agreements based on tariffs that have been concluded with individuals, companies or institutions, in order to verify the contents of invoices and the payment obligation borne by the State Treasury. [...]

In the event of a dispute regarding the right of the Office of the Auditor-General to carry out examinations under this Article the Office of the Auditor-General may seek a ruling by the district court.”

C. Position of the European Committee of Social Rights

The Committee has addressed the issue of union fees and contributions from the angle of Article 5 of the European Social Charter on several occasions, notably those referred to below:

Confederation of Swedish Employers v. Sweden, Collective Complaint No. 12/2003, Decision on the merits of 15 May 2003:

“39. The Committee observes firstly that the fees deducted from the wages of workers pursuant to a collective agreement concluded between SBWU and the Swedish Construction Federation are, according to the collective agreement, for the service of wage monitoring. The Committee considers that the system of wage monitoring may, depending upon national traditions, be assumed either by public authorities, or, on the explicit or implicit authorisation of the legislator, by professional associations or trade unions. In the latter case this could legitimately require the payment of a fee.

40. Consequently, the Committee considers that the payment of a fee to the trade union for financing its activity of wage monitoring cannot be regarded in itself as unjustified. It also considers that it cannot be regarded as an interference with the freedom of a worker to join a trade union as the payment of the fee does not automatically lead to membership of the SBWU and in addition is not required from workers members of trade unions other than SBWU.

41. However, the Committee considers that doubts exist as to the real use of the fees and that, in the present case, if they were to finance activities other than wage monitoring, these fees would, on the grounds indicated in paragraph 29 be deducted, at least for a part, in violation of Article 5.

42. In the present case, the Committee is not in a position to verify the use of the fees and in particular to verify to what extent the fees are proportional to the cost of the service carried out and to the benefits wage monitoring confers on the workers. These are decisive factors in determining a violation of Article 5 with reference to paragraphs 39 and 40 or 41. The Committee considers therefore that it is for the national courts to decide the matter in the light of the principles the Committee has laid down on this subject or, as the case may be, for the legislator to enable the courts to draw the consequences as regards the conformity with the Charter and the legality of the provisions at issue.

43. The Committee reserves the right to supervise the situation in practice through the reporting procedure and, as the case may be, the collective complaints procedure. ...

Conclusions 2002, Romania, p. 126

“... According to the report, it is common for trade unions to impose the payment of a fee and ‘the filling of an application form or of an engagement’ on non-members within the enterprise in consideration for negotiating a collective agreement. Supplementary information received from the Government at the Committee’s request indicates that the basis for this practice is the single national collective agreement 2001-2002, according to which the amount of the deduction should be no less than 0,3 % of salary and no more than the amount of union dues. The Committee observes that by virtue of Section 9 of Act No. 130/1996 on collective labour agreements, collective agreements apply to all workers in the enterprise, irrespective of their length of service or trade union membership. In these circumstances, the imposition of a fee on workers who are not members of a trade union constitutes a union security practice that is contrary to the right to organize.

The Committee asks that the next report indicate clearly whether, in addition to paying a fee to the union, non-members are also required, as the report would seem to suggest, to apply for membership. ...”

Conclusions 2004, Romania, pp. 454-455

“...The Committee previously concluded that the situation in Romania was not in conformity with Article 5 because of the obligation on non-unionised workers to pay a fee to the trade union that had negotiated the applicable collective agreement, even though such agreements applied by law to all workers independently of whether or not they were members of a trade union (the situation is described in Conclusions 2002, p. 126).

The Committee has re-examined the situation in the light of the explanations in the report and of the principles it has laid down in Complaint No. 12/2002 (Confederation of Swedish Enterprise v. Sweden, decision on the merits of 15 May 2003, §§26-31). It notes firstly that the contribution helps to finance an activity that benefits all employees: negotiating collective agreements. Secondly, under the single national collective agreement for 2001-2002, on which the practice is based, the contribution is not obligatory and is not earmarked for a trade union. Finally there is no statutory provision for automatic affiliation to a trade union. The Committee therefore considers that the payment of this sum cannot in itself be regarded as an infringement of employees’ right to join or not to join a trade union.”

Conclusions XVIII-1, Hungary, p. 390

“... In its previous conclusion, the Committee asked if automatic deductions from all workers’ wages, including those who were not unionised, were forbidden under the present legislation. The report states that according to rules on deducting trade union dues, union dues are paid only by persons who are mandated to pay such dues, which means that they must be trade union members.

Union dues can be paid in two ways. Union members may either pay their dues directly into the union account or ask their employers to deduct the dues from their wages, in which case the employer is required to comply. In 2002, parliament adopted legislation, with the support of the unions, requiring employers to deduct and transfer dues. Prior to that, deductions were only possible with the agreement of both employer and employee. The Committee considers that the procedure for deducting trade union contributions from wages at source may not be prohibited or made obligatory by national legislation. It must be made a criminal offence to use such a procedure for illegitimate purposes, for example to secure information on trade union membership. ...”

D. ILO standards

Elements on the right of workers and employers to establish and join organisations of their own choosing may be found in Chapter 5 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the International Labour Office (ILO).

Under the subtitle “Trade union unity and pluralism”, it is inter alia pointed out that the fact that workers and employers generally find it in their interest to avoid a multiplication of the number of competing organisations would not be sufficient to justify direct or indirect intervention by the State (see report of the said committee, 2006, paragraph 319). A monopoly situation imposed by law would be at variance with the principle of free choice of workers’ and employers’ organisations (paragraph 320). A government should neither support nor obstruct a legal attempt by a trade union to displace an existing organisation. Workers should be free to choose the union which, in their opinion, will best promote their occupational interests without interference by the authorities (paragraph 321). The imposition of an obligation on all the workers in the category concerned to pay contributions to a single national trade union, the establishment of which is permitted by branch of industry and by region, would not be compatible with the principle that workers should have the right to join organizations “of their own choosing”(paragraph 325).

Under the sub-title “Favouritism or discrimination in respect of particular organizations”, it is stated inter alia:

“339. Considering the limited functions which, in one case, were by law open to certain categories of trade unions, the Committee felt that the distinction made between trade unions under the national legislation could have the indirect consequence of restricting the freedom of workers to belong to the organizations of their choosing. The reasons which led the Committee to adopt this position are as follows. As a general rule, when a government can grant an advantage to one particular organization or withdraw that advantage from one organization in favour of another, there is a risk, even if such is not the government’s intention, that one trade union will be placed at an unfair advantage or disadvantage in relation to the others, which would thereby constitute an act of discrimination. More precisely, by placing one organization at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organization to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organization for occupational, religious, political or other reasons. The freedom of the parties to choose is a right expressly laid down in Convention No. 87.

340. By according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization which they intend to join. In addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. It would seem desirable that, if a government wishes to make certain facilities available to trade union organizations, these organizations should enjoy equal treatment in this respect.

341. In a case in which there was at the very least a close working relationship between a trade union and the labour and other authorities, the Committee emphasized the importance it attaches to the resolution of 1952 concerning the independence of the trade union movement and urged the government to refrain from showing favouritism towards, or discriminating against, any given trade union, and requested it to adopt a neutral attitude in its dealings with all workers’ and employers’ organizations, so that they are all placed on an equal footing.

342. On more than one occasion, the Committee has examined cases in which allegations were made that the public authorities had, by their attitude, favoured or discriminated against one or more trade union organizations:

(1) ...

(2) unequal distribution of subsidies among unions ..

(3) ... .

Discrimination by such methods, or by others, may be an informal way of influencing the trade union membership of workers. It is therefore sometimes difficult to prove. The fact, nevertheless, remains that any discrimination of this kind jeopardizes the right of workers set out in Convention No . 87, Article 2, to establish and join organizations of their own choosing.”

COMPLAINTS

The applicant complained under Articles 11, 9 and 10 of the Convention that the imposition of an obligation by law to pay the Industry Charge to the FII did not pursue a legitimate aim and was not necessary in a democratic society.

The applicant further complained that, in violation of Article 1 of Protocol No. 1, the Industry Charges in effect amounted to a separate taxation being imposed on a restricted group of citizens on top of their ordinary tax. This was without any condition that it be used for their benefit. On the contrary, the levy was to be transferred to another restricted group of citizens for the benefit of their interests.

Finally, the applicant complained that he had been the victim of discrimination in the sense of Article 14 of the Convention in that there was no objective and reasonable justification for the selection of enterprises that were included in the list of those liable to pay the Industry Charge and of those which were excluded from such liability. There had thus been a violation of this provision, taken in conjunction with Articles 9, and/or 10, and/or 11 and/or Article 1 of Protocol No. 1.

THE LAW

A. Complaint under Article 11 of the Convention

The applicant complained that the imposition of an obligation by law to pay the Industry Charge to the FII violated his right to freedom of association under Article 11 of the Convention, which in so far as relevant reads:

“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 ... for the protection of health or morals or for the protection of the rights and freedoms of others. ....”

In addition, the applicant relied on Articles 9 (right to freedom of thought, conscience and religion) and 10 (right to freedom of expression) of the Convention.

The Government disputed this complaint which in their view was manifestly ill-founded and should be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

The Court considers that this part of the application falls most suitably to be examined under Article 11 of the Convention, as interpreted in light of Articles 9 and 10.

1. The Government’s arguments

The Government disputed that there had been any restriction on the applicant’s right of association, as provided for in Article 11 of the Convention, either with respect to his right to form and join trade unions or his right not to belong to an association. The applicant was not a member of the FII, and had not been coerced in any way to become a member. The Industry Charge was a tax imposed for a purpose laid down in statute, namely in the 1993 Act. Like other taxes, the charge was collected by the State. In accordance with the Act, the funds were disbursed to the FII which was obliged to use them to promote industry and industrial development in Iceland. In order to ensure that the tax revenues were put to the best use in the service of industry in Iceland, the legislature had decided to channel these to the FII, a non-governmental organisation which was also a broad federation embracing a wide variety of enterprises, individuals and associations in all branches of industry, to work together with the government towards this objective. More than 10,000 parties, including both companies and individuals active in industrial operations, paid the Industry Charge. The FII defended the interests of all types of industry, both in Iceland and abroad, exerting influence on policies of Government and financial institutions, State bodies and other parties involved in industrial operations. This was with the aim of ensuring that Icelandic companies had a working environment that enabled them to be competitive on domestic and foreign markets, without hindrance and in a profitable manner.

While the FII worked specifically in the interests of its members, care was taken in its operations to maintain separate records of how revenues from the Industry Charge were used for the service of their particular interests, on the one hand, and for the common and overall interests of the entire industrial sector, on the other hand. There were also guarantees for a certain transparency in the disposal of public funds. The fact that the FII granted those of its members who also paid the Industry Charge a discount on membership fees had no effect on the applicant’s position. As a non-governmental organisation, the FII had been completely within its rights in deciding what arrangement should apply regarding its membership fees and in doing so in fact enjoyed protection under Article 11 against State interference.

In the Government’s opinion, there was a fundamental difference between the situation at issue in the present case and that in previous judgments by the Court concerning the negative aspects of the freedom of association, notably Young, James and Webster v. the United Kingdom (13 August 1981, Series A no. 44), Sigurður A. Sigurjónsson v. Iceland (30 June 1993, Series A no. 264) and Sørensen and Rasmussen v. Denmark ([GC], nos. 52562/99 and 52620/99 ECHR 2006 ). Unlike in those cases, in the case at hand, the applicant’s refusal to pay the Industry Charge had no bearing whatsoever on his employment or means of livelihood since what was involved was a tax and not a membership fee.

The Government further disputed the applicant’s submissions with reference to Articles 9 and 10 of the Convention. The FII had no political objectives related to the functioning or the policies of any political parties. It had never declared support for any specific political party, or established political affiliations, for example through funding, directly or indirectly. The Government therefore firmly rejected the applicant’s unsubstantiated claims that the FII took part in political activities. On the other hand, the FII inevitably took part, at times, in public discussions in which the focus was on the interests of industry and how best to ensure a suitable operating environment for the sector. But this was irrespective of the political party or parties that happened to be in power at any given time. In this respect too, the applicants’ situation differed from that of the applicants in the cases of Young, James and Webster and Sörensen and Rasmussen, where there had been clear and openly declared affiliations between the trade unions to which they were obliged to belong and specific political parties.

Nor were the circumstances in the applicant’s case comparable to those in Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999 III). As the largest forum for the entire industrial sector in Iceland, the FII had evaluated and expressed an opinion on how the European Union served the broad interests of industry, and how industry in European Union Member States was ensured certain operating conditions, in comparison with the situation in Iceland. However, this did not involve the adoption of a particular political view or convictions to which the applicant considered he had been associated against his will. The FII was the representative of an extremely broad and disparate group of enterprises and employers across a wide range of categories of industry, in which the only policy was to work in the interests of industry as such, not to support the policy of any particular political party or parties or to take part in political activity.

Unlike the above-mentioned cases, the applicant’s case did not involve a form of compulsion which struck at the very substance of the rights guaranteed by Article 11. Nor did it follow from the Court’s case-law that the negative aspect of the right to freedom of association should be considered on an equal footing with the positive aspect.

As to whether the obligation to pay the charge had any effect on the applicant’s positive freedom of association, it was to be noted that it had no effect on his right to join a union or association of his choice. The MBA, of which he was a member, had not been bound by the collective agreements negotiated by the Confederation of Icelandic Employers, to which the FII was affiliated. Thus, the applicant’s freedom to negotiate had not been threatened.

His assertion that he was compelled to take sides with a large-scale employers’ federation in matters concerning wages and terms of employment was entirely unfounded. Without any interference, the MBA was able to act for the special interest of its members and to direct membership fees paid by them towards these purposes. The applicant’s allegation that the FII activities were contrary to his own interest or convictions was unsubstantiated. Both the MBA and the FII were employers’ associations and the applicant had not pointed to any interests of his that clashed with those of the FII in this respect. On the contrary, the interests of construction companies, like those of other industrial companies, coincided fully with those promoted by the FII. The applicant himself benefitted from the FII’s activities promoting Icelandic industry.

While the FII participated in public discussions on the operating conditions of Icelandic industry, including whether Icelandic membership of the European Union would be advantageous, the applicant remained free not to identify himself with FII opinions and to adopt his own position, as did the MBA.

Had the applicant not paid the Industry Charges, he would have suffered no personal consequences either from the point of view of labour law or criminal law and been forced to close down his business under the special rules that applied to the collection of value-added taxes. Any arrears would have been the subject of ordinary collection measures employed by the tax authorities, namely recovery by way of attachment in the applicant’s assets (Enforcement Measures Act, No. 90/1989) and compulsory sale of those assets at an auction (Act No. 90/1991). Thus, the only consequences, if the applicant were to refuse to pay the Industry Charge, would have been financial pressure of the same type as that applied to taxes ordinarily. In any event, the charge levied on the applicant’s operations was very tiny (0.08%), amounting to the equivalent of only 66 euros for the entire year 2004. Such a small sum could not constitute a financial burden for him and distinguished the present case from that of Evaldsson and Others v. Sweden, no. 75252/01, 13 February 2007).

The Government further emphasised that FII’s use of funds derived from the Industrial Charge had been subject to statutory conditions and effective public control. In this area, supervision was exercised in a manner fully complying with the requirements of transparency vis-à-vis persons who, like the applicant, paid the charge to the FII without being a member of it, or otherwise affiliated. In this regard too, the present instance differed from that of Evaldsson and Others (cited above).

In the event that the Court, notwithstanding the arguments above should find that there had been an interference with the applicant’s right to freedom of association as protected by paragraph 1 of Article 11, the Government argued that the interference fulfilled the conditions set out in the second paragraph. The Industry Charge was clearly prescribed by law and pursued the legitimate aim of “protection of the rights and freedoms of others”. At the same time, it should be noted, by serving the purpose of promoting one of the most vital sectors of the Icelandic economy, the Industry Charge also served important public interests.

As to the necessity of the interference, the Government stressed that the legislature had considered that the objective of promoting Icelandic industry could best be achieved by entrusting this role to the FII, subject to public supervision in accordance with the law, and by allocating the funds derived from the Industry Charges to this single organisation rather than dispersing them between many smaller ones. Having regard to all the various arguments above to the effect that there had not been an interference with the applicant’s right to freedom of association, the Government considered that in any event it could not be said that the Industry Charge entailed a disproportionate interference with his right. The restrictions imposed were necessary in the sense of Article 11 § 2.

Should the Court find that the impugned Industry Charge arrangement was incompatible with Article 11, it would constitute a major departure in the interpretation of the effect and scope of this provision. It would also have far-reaching consequences undermining the freedom of action necessary for the Contracting States to enjoy in matters of tax collection and also their freedom to choose methods for achieving political goals in such important areas as supporting and encouraging development in their occupational sectors.

In light of the above the Government requested the Court to declare the complaint inadmissible as being manifestly ill-founded.

2. The applicant’s arguments

The applicant argued that there was no pressing and proportionate need to interfere with his (negative) right to freedom of association, his freedom of thought and freedom of expression, by requiring him to be a member of the FII and/or to associate with others within the FII through the payment of dues to the FII. These dues were used in part by the FII to incur expenditure in promoting and promulgating political views which were contrary to the views of the applicant and others like him, who were compelled to play a significant part in the FII activities through the payment of those compulsory dues to the FII, which he (and others) considered to be contrary to their interests and the national interests. The Icelandic authorities could not show that there was no way to promote the interests of Icelandic industry, as represented by the FII, other than requiring him (and others) to pay the charge and thereby contribute to expenditure incurred by the FII in promoting and promulgating views to which the applicant (and others) were opposed.

In the applicant’s view, the negative aspect of the right to freedom of association should be considered on an equal footing with the positive aspect of that right. Any other conclusion would be illogical and would undermine the principle of freedom of association. Thus the Court had correctly held that compulsion to join a particular trade union and to fund its activities contrary to the negative aspect of the right to freedom of association, “str[uck] at the very substance of the freedom of association guaranteed by Article 11” (see Young, James and Webster , cited above, § 55, Sörensen and Rasmussen v, cited above, § 54).

The applicant disputed the Government’s contention that the present case involved a tax and not a membership fee and that therefore the negative aspect of the right to freedom of association had not been violated. Whilst the Government recognised that a tax was a compulsory payment to the State to be used by the State in accordance with decisions taken in the public interest by the State, they failed to appreciate that the Industry Charge did not have these characteristics but was a payment to the FII collected on its behalf by the State. It was the FII which decided how to spend the funds accrued to it in this way, guided by its policies and views and without regard to the views of the applicant and others who were compelled by law to contribute to its financing. For the reasons set out in particular in the opinion of the dissenting member of the Supreme Court, the applicant had been compelled through the compulsory payment of charges to be a member of the FII and/or to associate himself with others within the FII. Notwithstanding the compulsory character of the Industry Charge and that FII members could have their charges deducted from their membership fees, the FII had reserved itself the right to deny the applicant and others like him membership.

The applicant disputed the Government’s submission that the interference with his right to freedom of association pursued a legitimate aim. Their suggestion that the Industry Charge which was transferred to a private association protected “the rights and freedoms of others” was unsustainable.

Nor could the imposition of the Industry Charge on non-members like the applicant be considered necessary for the purposes of the second paragraph of Article 11 of the Convention, which Article ought to be interpreted in light of Articles 9 and 10. In the applicant’s submission, under these Articles he had a right not to be compelled to contribute towards the expenditure incurred by the FII in promoting and promulgating (political) views that were contrary to those held by him and others who, like him, considered those views to be contrary to their own interests and those of the nation. The Government had failed to answer this point when responding that the FII had no political objectives connected with the function of policies of any political parties. In this connection the applicant invoked the Court’s judgment in Evaldsson and Others (cited above).

3. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It should therefore be declared admissible.

B. Complaint under Article 14 in conjunction with Article 11 of the Convention

The applicant, relying essentially on the same arguments as above in relation to Article 11 objecting to the discriminatory treatment of businesses in Iceland with regard to the payment of the Industry Charge, alleged also a violation of Article 14 of the Convention taken in conjunction with the former provision. Article 14 provides:

“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, origin, association with a national minority, property, birth or other status.”

The Government disputed this contention, invoking basically the same arguments as under Article 11 to the effect that the imposition of the Industry Charge had involved no inequality of treatment. They requested the Court to declare the complaint inadmissible as being manifestly ill-founded.

C. Complaint under Article 1 of Protocol No. 1

The applicant further complained that the obligation imposed on him in violation of Article 11 (viewed in light of Articles 9 and 10) to join and/or associate himself contrary to his own wishes with the FII through the payment of compulsory dues to the latter, also gave rise to a violation of Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government disputed this contention and invited the Court to declare the complaint inadmissible as being manifestly ill-founded.

1. The Government’s arguments

The Government emphasised that the Industry Charge was not a fee for membership of the FII, but a tax imposed in accordance with the unilateral decision by the State and without any particular consideration needing to be granted in return. Whether the executive branch of power was free to determine its use was not material; here, like in a number of other areas of taxation, the legislator had settled this issue by statute. This applied particularly in the case of the principal occupational sectors underpinning the national economy, where for decades it had been a customary feature of government strategy that the legislature imposed special taxes and levies that were aimed at supporting these sectors. Other examples were the Agricultural Charge (Agricultural Charge Act No. 84/1997) intended to give support to Icelandic agriculture, and various taxes imposed in the fisheries sector.

Moreover, the Industry Charge complied in all respects with the rules applying to the imposition and collection of taxes; the revenues were channelled from the State to the FII without any itemisation. Thus, the FII had no information of who had paid the Industry Charge, how much they had paid, what their payment status was or whether they were in arrears and was not expected to take any measures against parties who had defaulted payment. The imposition of the Industry Charge bore all the features of taxation as interpreted in Icelandic law and should be considered as falling within the term “taxes” as used in the second paragraph of Article 1 of Protocol No. 1 to the Convention.

Therefore the Government disputed that the imposition of the Industry Charge constituted deprivation of property, though they accepted that it involved a control of the use of his property and maintained that this was permitted under the second paragraph of Article 1 of Protocol No. 1. The impugned interference fell within the wide margin of appreciation accorded to States in this area.

In any event, there could be no doubt as to the existence of a clear authority in law for the imposition of the tax in the applicant’s case, namely, the Industry Charge Act, No. 134/1993.

Furthermore, the Industry Charge served the interests not only of those who worked in the industrial sector but also the general interest of the community as a whole, the aim being to promote and support one of the occupational sectors underpinning the national economy. Having thoroughly considered the matter, the legislature found that this objective would be best served by entrusting an industrial federation, the aims of which were to stimulate industrial development and formulate overall industrial policy, with the disposal of funds for this purpose, to be carried out under government supervision prescribed in law. The FII had been chosen since it was an umbrella federation embracing enterprises in a wide range of industrial categories enabling an optimal use of funds rather than being distributed between many smaller organisations. The charge was levied on those eligible to pay it on the basis of general and relevant considerations and was used lawfully and for legitimate purposes.

In its pursuit of the legitimate purpose highlighted above, the FII - only to mention a few examples - worked to publicise industry and to cultivate its image, allocated large amounts of the funds financed though the Industry Charge to training, gave opinions on behalf of the business community on draft legislation and regulations in the sphere of environmental affairs, instilled in public authorities the need to observe restraint in public procurement and to observe clear and transparent tender rules. The Industry Charge by no means constituted a heavy burden on the applicant but only a tiny proportion (0.08%) of his turnover. On this score, as already mentioned, the case differed from Evaldsson and Others (cited above).

Pursuant to section 3 of the Industry Charge Act, the legislature had entrusted the executive with monitoring in order to ensure that the funds were used in the public interest as provided for by the Act and for the benefit of the industrial sector as a whole. This was done in an entirely transparent manner and, as stated above, also in this respect the case was to be distinguished from Evaldsson and Others (cited above).

In this connection, the Government disputed the applicant’s allegations of discrimination contrary to Article 14 in conjunction with Article 1 of Protocol No. 1, on account of difference in treatment between industries which are obliged to pay the Industry Charge, on the one hand, and the meat processing, milk- and fish-processing industries on the other. There were perfectly relevant and objective reasons for why the various examples of taxes and levies could be found in the agricultural and fisheries sectors; these were imposed by legislation and the revenues generated were devoted to the collective needs of those sectors.

The Government also disagreed with the applicant’s suggestion that the practice of exempting enterprises partly or entirely owned by the State from the obligation to pay the Industry Charge amounted to discrimination. Public and private companies differed in a number of ways, including with regard to their tax obligations, and for this reason it was natural not to include them among those who were obliged to pay the Industry Charge.

In the Government’s submission it ought to be clear that the rules on the levying of the Industry Charge applied equally to all entities that were in the same position as the applicant and that equality considerations, which had been a condition for the imposition of taxes or the control of the use of property, had been fully respected.

Against this background the Government invited the Court to declare the Article 1 of Protocol No. 1 complaint inadmissible as being manifestly ill-founded.

2. The applicant’s arguments

The applicant submitted that the imposition of the Industry Charge amounted to a deprivation of his possessions in breach of Article 1 of Protocol No. 1.

The applicant maintained that having regard to the unjustified interference with his rights under Article 11, as interpreted in light of Articles 9 and 10, it was excluded that the impugned obligation to pay the Industry Charge to the FII under the guise of taxation could be viewed as justified in the general interest. Those who, like him, paid the charge were taxed separately, in excess of such other taxes as imposed on tax payers generally, without any relevant reasons being given, for instance a requirement that the tax be used for their benefit. This taxation of a restricted group made for the benefit of another restricted group or in the interest of others could not be justified.

The applicant further stressed that the FII’s decisions on how to spend the funds generated by the Industry Charge were taken without the involvement of any public authority. As the Government stated themselves, the FII enjoyed unrestricted power in deciding how the Industry Charge was to be allocated and the Ministry of Industry could not intervene.

Moreover, it was indisputable that the FII took part in political actives, such as campaigning in favour of Icelandic membership of the European Union.

The Government’s argument that the position with regard to the Agricultural Charge was in all respects the same as that applying to Industry Charge was beside the point and only suggested that the former raised similar problems of incompatibility with the Convention as the Industry Charge.

Nor could it assist the Government’s position that enforcement action to compel payment of the Industry Charge was taken by the State, not by the FII. Quite the contrary, it supported the applicant’s case that whilst the Industry Charge was enforced and collected by the State, the compulsory dues were then transferred to the FII which spent the funds as it saw fit without public supervision.

Contrary to what the Government suggested the Industry Charge was not levied in the public or general interest but in the interests of a private association, the FII. In these circumstances it was impossible to sustain the Government’s contention that the enforcement and collection of the Industry Charge struck a fair balance and did not involve a breach of Article 1 of Protocol No. 1.

Whilst the Government prayed in aid the Court’s judgment in Evaldsson and Others (cited above), this ruling rather supported the applicant’s position. Like in Evaldsson and Others, where the imposition of a monitoring fee was held to constitute deprivation of possessions within the meaning of Article 1 of Protocol No. 1, the Industry Charge in this case had deprived the applicant of his possessions within the meaning of that provision. Whereas the impugned duty of payment in the Evaldsson and Others case had been imposed under a collective labour agreement, the disputed obligation in the present case was imposed by statute, which meant that the position adopted in the former applied with even greater force in the latter. Furthermore, in a similar way as in the Evaldsson and Others case, there was a lack of information and transparency as to the monitoring activities and the way in which the funds had been spent by the FII, which circumstances were found to have given rise to a violation of Article 1 of Protocol No. 1 in the former case.

Moreover, like in the former case, in the case under consideration the applicant had to pay fees against his wishes to an organisation with a political agenda which he did not support. However, unlike the applicants in the former case, the applicant had not received any return for the fees paid in his case.

In light of the above, it could not be said that the Icelandic authorities had struck a “fair balance” between the demands of the general interest of the community and the property rights of the applicant.

Furthermore, bearing in mind the interference with the applicant’s rights under Articles 9 to 11, the differential treatment between him and those private sector enterprises partly or fully owned by the State that were exempted from the duty to pay the Industry Charge could not be deemed justified by any objective and reasonable considerations. For example some businesses within the food and drink industry were required to pay the charge, whilst others, namely businesses processing meat, milk and fish, were not. The giving of favourable treatment to the FII compared with other organisations was yet further evidence of the discriminatory nature of the Industry Charge. The Government were unable to rebut and/or justify the discriminatory nature of the Industry Charge.

3. The Court’s assessment

D. Complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1

The applicant, relying essentially on the same arguments as above objecting to the discriminatory treatment of businesses in Iceland with regard to the payment of the Industry Charge in relation to Article 1 of Protocol No. 1, alleged also a violation of Article 14 of the Convention taken in conjunction with the former provision.

The Government disputed this contention, invoking basically the same arguments as under Article 1 of Protocol No. 1 to the effect that the imposition of the Industry Charge had involved no inequality of treatment. They requested the Court to declare the complaint inadmissible as being manifestly ill-founded.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President

1 Report of the FII to the Ministry of Industry regarding the disbursement of the Industry Charge 2003, 9 July 2004.