Freedom of association
Freedom of assembly and association is recognised under the Community Charter of the Fundamental Social Rights of Worker of 1989, which defines the context of ‘Freedom of association and collective bargaining’ as one where:
Employers and workers of the European Community shall have the right of association, in order to constitute professional organisations or trade unions of their choice for the defence of their economic and social interests.
The principle of freedom of association under EU law is contained in Article 151TFEU, which sets out the social policy objectives of the Community, ‘having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers’. Thus the Community Charter of 1989 is a reference point for both the Community and the Member States.
The issue of whether there are limits to the exercise of the right to freedom of association has been considered by the European Court of Human Rights, which has ruled on the scope of the right to freedom of association. The court had to determine whether the right to associate freely implies that there is a corresponding obligation to accept all those who wish to associate and has held this not to be the case. In the case of ASLEF v UK Case C-1002/05 the court ruled that, in the same way as individuals have the right to join or not to join trade unions, so, too, do trade unions have the right to accept or reject applicants for membership. Thus, the right to freedom of association recognises that there are constraints on the exercise of the right.
The principals of freedom of association are also recognised under Article 12 of the Charter of Fundamental Rights of the European Union which establishes that:
Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
The Charter was unanimously adopted by the EU institutions at the Nice summit of December 2000.With the entry into force of the Treaty of Lisbon on 1 December 2009 ‘the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’ (Article 6 TEU). Article 12, which must be interpreted consistently with the 1989 Community Charter, refers to ‘freedom of association at all levels’. This does not explicitly specify the EU or transnational level, and could therefore be interpreted as applying only to all levels within Member States. On the other hand, however, the reference in the Preamble to the EU Charter to the Council of Europe’s Social Charter (ECHR) would appear to indicate the opposite conclusion: that the Article protects freedom of association also at EU level. Article 5 of the European Social Charter refers to ‘the freedom of workers and employers to form local, national or international organisations’. The EU Charter’s reference in the Preamble to international treaties also supports this conclusion: ILO Convention 87 concerning freedom of association refers in Article 5 to the right ‘to affiliate with international organisations of workers’.
Article 12 is in Chapter II of the Charter, entitled ‘Freedoms’, not in Chapter IV, entitled ‘Solidarity’, where most trade union and labour rights are found. The article makes two references to trade unions – the only references to trade unions in the Charter – and raises the prospect of mutual influences regarding freedom of association in the EU. Firstly, international labour standards, national constitutions and other national legal measures could be used to interpret ambiguities in Article 12 as it applies in the EU. Secondly, the emerging interpretation of the Article in the EU could influence the right of association as it has been applied in the Member States, and also at international level.
See also: Community Charter of the Fundamental Social Rights of Workers; European Convention for the Protection of Human Rights and Fundamental Freedoms; European Social Charter; international labour standards; negative freedom of association; right to constitute and freedom to join trade unions; trade unions.