25 May The right of trade unions to control their membership vis-à-vis the right to freedom of association of would-be members

In the case of Vlahov v. Croatia (application no. 31163/13, 05.05.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 11 (freedom of association) of the European Convention on Human Rights. 

The case concerned the right of trade unions to control their membership vis-à-vis the right to freedom of association of would-be members. At the beginning of 2007 the applicant was representative for the Šibenik branch of the Croatian Customs Officers’ Trade Union (“the CSH”). The CSH was one of two trade unions operating within the Šibenik Customs Office and was a relatively small organisation of some 30 members at the time, with membership being purely on a voluntary basis. The applicant refused  the  applications  of  15  employees  of  the Šibenik  Customs  Office. He explained  the  decision  in  a  letter  addressed  to  those  concerned  within the  customs  office,  saying  that  he  was  acting  in  agreement  with  other  members  of  the  trade  union not  to  extend  membership  of  the  CSH. At the same time,  however,  the  president  of  the  CSH,  who  had  had  disagreements  with  Mr  Vlahov  as to  the  governance  of  the  trade  union,  enrolled  the  15  would-be  members.  At  an  extraordinary general  meeting  in  March  Mr  Vlahov’s  refusal  to  accept  the  15  members  was  discussed  and  it  was decided  to  remove  him  as  trade-union  representative. The  Municipal  Court  found  him  guilty  and stated that he  in  particular  had  acted  contrary  to the  Constitution,  the  relevant  domestic  law  and  the  statutes  of  the  CSH.  It also dismissed  as irrelevant  his  request  for  three  witnesses  to  be  questioned. This reasoning  was  endorsed  by  the  County  Court  in  December  2010  and  by  the  Constitutional  Court in  October  2012.

Firstly, the Court considered that Mr Vlahov’s conviction had amounted to an interference with the right of trade unions – as associations formed by people – to control their membership, as guaranteed under Article 11 of the Convention.

It was, furthermore, prepared to accept that that interference had been prescribed by law, namely Article 109 of the Criminal Code, and that it had aimed to protect the would-be trade-union members’ right to exercise freedom of association. It found, however, that the domestic courts’ decisions had lacked proper reasoning. The decisions had lacked detail and had failed to elaborate, in the light of the relevant principles under Article 11 of the Convention, on the applicant’s compliance with the trade union’s internal regulations and statutes, on the fact that the applicant had had the right at the time as trade-union representative to take actions to protect the interests of its members and on the internal dispute in the CSH and ist possible effects. Moreover, the courts had refused the applicant’s request to take further evidence, without a properly reasoned decision.

In any case, the Court found that the would-be members had not apparently suffered any identifiable hardship as there had been no closed-shop agreement. Furthermore, they had been free to join the other trade union or to bring legal proceedings concerning their conditions of employment. 

Nor could the Court find any discriminatory motive behind the applicant’s actions. Indeed, he had not intended to deny the would-be members’ admission as such but to delay the decision on extending the union’s membership until an upcoming annual general meeting. The Court found that the interference complained of had not been necessary in a democratic society and therefore held that there had been a violation of Article 11 of the Convention.

Reference from the official website of the European Court of Human Rights