Freedom of Association

by Martin Henssler

1. Subject and function, historical review

Freedom of association describes the right of all individuals to come together with other individuals at any time. When used in the context of labour rights and collective bargaining, the term assumes a narrower and more specific meaning, as here it encompasses a certain purpose of the underlying association. The law of the Member States guarantees at a minimum the freedom of employees and employers to form and belong to associations, whether trade unions or employers’ associations, in order to further and defend their interests. Apart from that positive individual right, the legal protection sometimes also covers the freedom not to join any, or a particular, union (negative aspect). As in certain legal systems the existence of the association and its specific activities are assured, freedom of association also features a collective aspect. The right to conclude collective labour agreements can be considered as the essential element of this collective facet.

In almost every Member State, freedom of association is enshrined in the constitution or is at least established in non-constitutional law (UK). In the first case, freedom of association in terms of labour law is either guaranteed as an autonomous basic right or conveyed as a particular manifestation of a larger conception of this term. In addition to these guarantees in the national constitutions, the freedom to form and belong to associations can be found stated as a right in various international treaties.

The original aim pursued by the legal guarantee of freedom of association was a social one: the employees’ right to form and belong to trade unions was meant to act as a counterbalance to the employers’ bargaining power. Nevertheless, freedom of association is usually also recognized for employers. This conceptualization aims to configure and legally embody the competing interests that determine the regulation of working conditions. Negotiations between equally situated parties are anticipated as a better vehicle for achieving mutually satisfactory results contributing to the common welfare than are legislative acts or arbitral resolution. For this reason, collective bargaining agreements have legal priority over statutory regulations. Given the power of both self- and co-determination afforded to unions and employers’ associations, freedom of association can be considered as the realization of social democracy.

The origins of collective labour law, in general, and freedom of association, in particular, date back to the 19th century. Up to that time, trade unions were regarded by the law as illegal and criminal organizations. As a result of the end of feudalism (France: 1789, Austria: 1848, abolition of serfdom in Prussia: 1807) and in consequence of the onset of industrialization, cities witnessed a mass accumulation of people seeking work. The dominant liberal concept of private autonomy fashioned as broad as possible was not able to prevent mass misery and poverty. The medium of individual contracts turned out to be insufficient to defend the interests of the majority of the employees. The number of strikes and uprisings rose continuously (eg the Silesian Weavers’ Revolt of 1844). While the states tried to find a remedy by enacting laws, the employees began to form organizations in order to enhance their bargaining power. The legal prohibition of trade unions had to be circumvented by the creation of societies having the sole purpose of collecting and administering funds for alleviating misfortune and by the foundation of other ‘friendly’ societies. In the second half of the 19th century, several laws removed trade unions from the ambit of the law of criminal conspiracy in continental Europe; in the UK they were recognized as lawful organizations in 1824 (Combination Acts 1824–1825). Some states even granted statutory protection to unions (UK: 1871, Austria: 1867, North German Federation: 1869). In the light of these developments, the prohibition of strikes was also repealed (German Empire: 1906, Austria: 1870, France: 1864). In the course of the 20th century, freedom of association was at last guaranteed in all European countries. This development was interrupted by the period of dictatorial governments in Germany, Italy and Spain (similarly in France during its World War II occupation), when the free trade unions were dissolved. After the collapse of these regimes, the legal status quo ante was re-established.

As a reaction to these historical experiences, modern legal systems do not only guarantee the right to form and belong to associations, but, in addition, protect the existence and specific activities of trade unions and employers’ associations from private or public intervention. Thus the protection granted within the scope of freedom of association usually exceeds the minimums described above.

2. Implementation in the Member States

As freedom of association is guaranteed as a basic constitutional right in most of the European states, its legal base—corresponding to the character of a basic right—does not change significantly. To the extent that revisions are undertaken, they tend to occur at the non-constitutional level and relate to the implementation of individual aspects of the general right. As can be demonstrated through a number of examples, the scope of the guarantee of freedom of association granted by the different European systems shows a number of parallels.

In Germany, freedom of association is established in Art 9(3) of the Basic Law. It is the only basic right having an immediate impact on private law (Art 9(3)(3) Basic Law). The protection covers associations that are voluntarily formed on the basis of private law, have a democratic and corporative structure, are not restricted to only one firm and have the purpose of furthering and defending the collective rights of either employees or employers. They must also be independent from other associations (trade unions and employers’ organizations) and third parties. In contrast, the attribute of social power and the willingness to participate in collective bargaining and labour disputes are not constitutive elements of the freedom of association. These features are only prerequisites for taking an active part in collective bargaining. Article 9(3) of the Basic Law guarantees two aspects of the freedom of association: an individual one and a collective one. The individual aspect contains the positive right to form, to belong to and to participate in the activities of an association as well as the negative right not to join an association. The protection against being subject to detriment on grounds of the employees’ or employers’ refusal to be a member of a union is incorporated by this negative right. At the collective level, the rule guarantees the existence and the specific activities of associations.

In France, the preamble to the 1958 Constitution refers to the preamble of the Constitution of 1946, which guarantees the right to join and belong to an association, the right to strike and the right of collective bargaining (nos 6, 7). Only the individual freedom to join or not to join an association and the freedom to participate in the collective protection of interests are expressly mentioned in the Constitution itself. Nevertheless, collective rights are derived from the individual guarantees. The constitutional regulations are supplemented by a number of non-constitutional rules elaborating the content of the guarantee. Thus Art L 412-1 f Code du travail gives protection to the employees against any detriment on grounds of union membership or activities. Article L 411-2 Code du travail defines associations as an alliance of employees or employers, whose members perform the same, similar or interrelated work. Their tasks include the research and the defence of their members’ individual rights and interests (Art L 411-1 Code du travail). Article L 132-2 Code du travail provides that only those associations that are representative can take an active part in the collective bargaining process. The number of members, their independence (from employers’ associations), the amount of membership fees and the length of time the association has been established are the decisive factors in this context.

The preamble to the Spanish Constitution guarantees the freedom to create and carry on activities in trade unions and employers’ associations within the limits set by constitutional and non-constitutional law (Art 7, ss 2, 3). Prerequisite to this guarantee is that the unions have and operate under a democratic internal structure (Art 7, s 3). The freedom to form and to join a trade union and the freedom to strike are protected as fundamental rights in Art 28 of the Constitution, whereas the corresponding rights of the employers are guaranteed by Art 22, which concerns freedom of association under a more general conception of the term. Article 37 of the Constitution contains an explicit guarantee of the right of collective bargaining and the right to take collective industrial action. The rights protected by the Constitution are complemented by non-constitutional law, in particular by the Organic Law on Freedom of Association (Ley Orgánica de Libertad Sindical (LOLS)) and the Workers’ Statute Act (Ley Estatuto de los Trabajadores (ET)). Article 87(2) ET prescribes that a trade union must attain a representative character to be able to take an active part in collective bargaining.

The protection of freedom of association in most of the other countries of continental Europe is comparable to the exemplified systems.

In contrast to these parallel structures, UK law possesses unique characteristics in the context of collective labour agreements. It differs from the legal systems of continental Europe inasmuch as neither freedom of association nor autonomy in collective bargaining is protected by constitutional law. Nevertheless, the guarantee of these rights results from non-constitutional rules. The Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) can be considered as the most important among them. It contains regulations concerning the individual as well as the collective aspects of the freedom of association. According to TULR(C)A 1992, s 1 lit a, trade unions are defined as organizations (whether temporary or permanent) that consist ‘wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers’ associations’. TULR (C)A 1992, s 122 lit a offers a mirror-image definition of an employers’ association. TULR(C)A 1992, ss 146 and 152 provide protection against dismissal and other detriment on the grounds of union membership and activities. The wide comprehension of the term of ‘freedom of association’ covers the creation of trade unions and employers’ organizations. The ability to take part in collective bargaining does not include any further prerequisites. However, the circumstance that, in practice, a trade union has to be recognized by the employer as the permanent negotiating partner for the purpose of collective bargaining (TULR(C)A 1992, s 178(3)) leads to the factual result that only those trade unions that feature a certain degree of social power are suitable as a party to a collective bargaining agreement.

As far as the guarantee and particular aspects of freedom of association are concerned, a comparative analysis of the national legal systems in Europe reveals significant congruence. In almost every Member State the right to form and to join an organization is guaranteed for employees as well as for employers as a fundamental right in the constitution—either in the form of an independent right or as a notion generally understood by the term ‘freedom of association’. In the UK, freedom of association (in terms of labour law) is protected by non-constitutional law. This general congruence is further reflected by several particular parallels. For example, the term ‘freedom of association’ as used in the different countries features several minimum requirements. It only covers those voluntary and independent associations of employees or employers that protect and promote the interests of their members and have a democratic internal structure. As an exception, the formation of a trade union or an employers’ organization in Poland—as one of the younger members of the EU—requires a minimum of 10 members.

At the individual level, the different legal systems guarantee at least the positive component of freedom of association, though the negative facet is usually also protected. The protection given by the law includes the prohibition of any detriment based on an employee being a member of a trade union or having taken part in the activities of such an organization. The collective aspect of freedom of association, in particular autonomy in collective bargaining, is at a minimum the object of guarantees in non-constitutional law. In several Member States, the ability to take an active part in collective bargaining does not automatically result from an organization’s character as a trade union or an employers’ association. Instead, additional criteria ensuring a certain degree of bargaining power or an organizational consolidation of the association have to be satisfied. These criteria are, for example, the representativeness of an organization (France, Spain), its registration or legal capacity (Portugal, Netherlands, Greece) or the attribute of social power (Germany).

3. International guarantees

The national regulations are accompanied by a large number of international guarantees on the freedom of association. As these rules of public international law—regardless of their direct effect—create a certain minimum standard and have an impact on the interpretation of national law, they embody a harmonization of the national principles on the freedom of association.

In the field of universal international law, the conventions of the International Labour Organization (ILO) are of great importance. Convention no 87 contains a detailed guarantee of the freedom of association; amongst other assurances, the right to form an organization and its continued existence are protected. In addition, Convention no 98 enacts a ban against any discrimination on the grounds of union membership and demands appropriate protection against any interference by third parties. Convention no 135 aims to protect union representatives against detriment within a company and intends to facilitate their activity. The furtherance of collective bargaining is, finally, subject to Convention no 154, though it has not been ratified by the majority of the nations.

Freedom of association is also guaranteed through the United Nations. For that purpose, Art 23, no 4 of the Universal Declaration of Human Rights (human rights and fundamental rights (ChFR and ECHR)) grants the right of all individuals to form and to join trade unions for the protection of their interests. Likewise, this right is contained in Art 22(1) of the International Covenant on Civil and Political Rights (CCPR). Article 8 of the International Covenant on Economic, Social and Cultural Rights embodies several guarantees of employees’ rights. For instance, the right to form and to join a trade union in order to protect and further one’s economic and social interests is ensured (lit a). Additionally, on the collective level, the free activity of trade unions is protected as well as the right to strike (lit c, d). Finally, trade unions are guaranteed the right to establish national federations or confederations and to form or join international trade-union organizations (lit b).

As far as regional international law is concerned, two treaties drawn up by the Council of Europe carry weight: the European Social Charter of 1961 and the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. Part II, Art 5 of the European Social Charter ensures freedom of association (the positive and the negative aspect) for both employers and employees. Article 6 guarantees the right to bargain collectively and the right to collective action, including the right to strike. The Convention for the Protection of Human Rights and Fundamental Freedoms ensures, in Art 11(1), the right of assembly as well as the right to form and to join a trade union. The protection given by this treaty covers the positive and the negative aspect of freedom of association for both employers and employees and, on the collective level, the free activity of an association. In addition to that, Art 14 makes illegal any discrimination based on membership in a trade union or an employers’ association (‘other status’).

4. The European law perspective

Primary EU law does not contain an explicit guarantee of the freedom of association. Instead, Art 153 TFEU/137(5) EC clarifies that the right of association, the right to strike and the right to impose lock-outs do not fall within the competence of the Union. However, the Union shall respect fundamental rights—guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms and also resulting from the constitutional traditions common to the Member States—as general principles of Union law (Art 6(5) TEU/6 EU). The preamble to the TEU confirms the application of the European Social Charter and, in addition, the non-obligatory Community Charter of the Fundamental Social Rights of Workers of 1989, ensuring the freedom of association (Art 11), the right to negotiate and conclude collective agreements (Art 12) and the right to resort to collective action (including the right to strike, Art 13). Finally, the non-binding Charter of Fundamental Rights of the European Union (2000) (human rights and fundamental rights (ChFR and ECHR)) guarantees the right to form and to join trade unions (Art 12) as well as the right of collective bargaining and action, including strike action (Art 28).

Even though the freedom of association is not explicitly incorporated in primary Union law, the European Court of Justice (ECJ) considers this right among the general and binding principles of Union law. The ECJ even assumes a European fundamental right of collective action. This right, which necessarily includes the protection of trade unions and employers’ associations, was developed in the decisions of Laval (ECJ Case C-341/05 – Laval [2007] ECR I-11767) and Viking Line (ECJ Case C-438/05 – Viking Line [2007] ECR I-10779) on the basis of a synopsis of the aforementioned international, contractual commitments of the Member States. This synopsis includes several European legal acts, such as the Charter of Fundamental Social Rights of Workers and Art 28 of the Charter of Fundamental Rights of the European Union, the latter being considered a standard of fundamental rights that is accepted by every Member State. In addition, the right of collective bargaining created by the ECJ corresponds to the constitutional tradition of the Member States (see 2. above) that has already been relied on by the court as a source for fundamental rights in European labour law;(see 4. above). Independent of the question of legal recognition for the freedom of association, the ‘social dialogue’ regulated in Arts 154, 155 TFEU/ 138, 139 EC (consultation and agreements between management and work-force) results in the involvement of management and labour at the Union level in legislation in the social policy field (particularly ‘BUSINESSEUROPE, The Confederation of European Business’ and the ‘European Trade Union Confederation’ (ETUC)). According to Art 153 TFEU/137(3) EC, a Member State may entrust management and labour at the national level with the implementation of directives adopted pursuant to Art 153 TFEU/137(2) EC.

Literature

Kenneth William Wedderburn of Charlton, Employment Rights in Britain and Europe: Selected Papers in Labour Law (1991); Franz Gamillscheg, Kollektives Arbeitsrecht, vol I (1997); Olaf Deinert, Der Europäische Kollektivvertrag (1999); Manfred Löwisch and Volker Rieble, ‘Entwicklung und Rechtsquellen der Koalitionsfreiheit’ in Reinhard Richardi and Otfried Wlotzke (eds), Münchener Handbuch zum Arbeitsrecht, vol 3 (3rd edn, 2009) 40; Gérard Lyon-Caen, Jean Pélissier and Alain Supiot, Droit du travail (25th edn, 2010); Roger Blanpain, European Labour Law (12th edn, 2010); Martin Henssler and Axel Braun (eds), Arbeitsrecht in Europa (3nd edn, 2011).