Last Updated on May 19, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 48950/09
ASSOCIATION TITU MAIORESCU INDEPENDENT UNIVERSITY and Others
against Romania
The European Court of Human Rights (Fourth Section), sitting on 9 October 2018 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 20 July 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, TituMaiorescu Independent University, was a Romanian association which was set up in 1991 and dissolved in 2009. The second and the third applicants, MrVirgil Ciubotaru and Ms Gabriela Burducea, are Romanian nationals who were born in 1944 and 1951 respectively. They both live in Bucharest. They are founders of the first applicant association.
2. The applicants were represented by Mr R.L. Chiriţă, a lawyer practising in Cluj-Napoca.
3. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background information
5. On 19 December 1990 several university professors, among whom were the second and third applicants, set up an association called TituMaiorescu Independent University (“the Association”), with the objective of founding of a private university. On 25 January 1991, the Bucharest District Court granted the Association legal personality and registered it in the Register of Associations and Foundations kept by that court. The District Court noted in its interlocutory decision that the Association’s aim was to carry out activities in the area of higher education.
6. The Association was among the first private universities set up in Romania afterthefall of thecommunistregime in 1989. The Education Ministry provisionally authorised the Association to operate as a private university on the basis of the Higher Education Act (Law no. 88/1993). At that time, a private higher-education institution, such as a university, could only operate as an association or foundation.
7. In 1999 the Higher Education Act was amended. Private universities could no longer operate as associations and had to obtain their legal personality from Parliament. Moreover, they were required to have independent assets.
8. In order to comply with the new legal requirements and to obtain university accreditation from the Parliament, on 10 December 2001 the board of the Association made the decision to transfer the Association’s assets to the new university so that it could be accredited. A report with an attached inventory of all the transferred assets was drafted. The report expressly stated that all the Association’s assets were to be transferred to the newly created university. The value of the assets amounted to approximately 4.5 million euros (EUR).
9. By virtue of Law no. 239/2002, having noted that the new university complied with all the legal requirements, including having its own assets, Parliament granted legal personality to TituMaiorescu University (“the University”). The Law stipulated that all the teaching and administrative staff working for the Association had been transferred to the University (see paragraph 27 below). The Law also stated that the assets of the newly‑created university consisted of the assets transferred to it from the Association, as mentioned in the protocol handover attached as an annex to the Law (see paragraph 27 below).
10. The two legal entities – the Association and the University – had coexisted until 25 February 2009 (see paragraph 25 below), when the Bucharest County Court noted that the former had been dissolved ipse jure.
2. Amendments to the Association’s Articles of Association
11. On 9 June 2007 the founders of the Association decided to amend its Articles of Association. The amendments concerned the Association’s headquarters and the setting-up of a Board of Directors composed of all its surviving founders.
12. On 28 June 2007 the Association applied to the Bucharest District Court to register the amendments brought to its Articles of Association.
13. On 22 August 2007, the court noted the amendments and ordered their registration in the Register of Associations and Foundations.
14. On 11 February 2008, the founders of the Association decided to amend again the Articles, this time as regards the aim of the Association, by adding the following paragraph:
“The objectives of the [A]ssociation are to promote European standards in the fields of education and scientific research at all levels; to foster partnerships and to collaborate with national and international institutions; to provide professional training to adults and education at all levels according to the applicable legal provisions; to set up units of extracurricular education; to edit curricula and other publications; to organise and attend congresses, conferences, seminars, scientific research activities …”
15. On 15 February 2008 the Association asked the Bucharest District Court to register the amendments. On 20 February 2008, the District Court ordered their registration.
16. The University challenged the court’s decision. It claimed that the decision to amend the Association’s Articles had been taken in breach of the legal provisions concerning education.
17. By a judgment of 8 January 2010 the Bucharest County Court allowed the application lodged by the University and dismissed the Association’s application. The County Court noted of its own motion that the Association had been dissolved ipso jure by a judgment of 25 February 2009 (see paragraph 25 below).
3. Proceedings for the dissolution of the Association
18. Meanwhile, on 2 October 2007 the University had lodged an application with the Bucharest District Court seeking the dissolution of the Association. It requested that the court note that the Association had lost its legal personality as a result of the transfer of its assets and staff to the University. It based its application on Article 55 § 1 (b) of Government Ordinance no. 26/2000 (see paragraph 26 above) and pointed out that the Association had lost its reason to exist since the University had been set up as an independent entity on the basis of Law no. 239/2002 (see paragraph 9 above and paragraph 27 below). In the alternative, the University asked the court to order the dissolution on the grounds that the goal of the Association had become unlawful and against public order, as an association was not entitled to carry out educational activities.
19. The University also maintained that the Association was no longer entitled to use the word “university” in its name as it generated confusion with its own name, TituMaiorescu University, and asked the court to note that the Association’s assets had become its assets pursuant to Law no. 239/2002.
20. The Association, represented by the second applicant, lodged a counterclaim and asked the court to dismiss the University’s application.
21. By a judgment of 28 November 2007, the Bucharest District Court dismissed the University’s application noting that neither Law no. 239/2009 nor any other documents issued by the Association had stated anything about the Association’s dissolution. As regards the Association’s aim, the court noted that although the Association could not continue to provide higher education to students it could still carry out scientific research.
22. The court also noted that the fact that the Association had continued to use the word “university” in its name could not be considered as a reason in itself to order its dissolution in so far as this name had been approved by the court which had initially registered the Association and had been used by it ever since.
23. On 12 February 2008 the University lodged an appeal on points of law, reiterating its arguments.
24. At a hearing held on 14 October 2008, the Bucharest County Court allowed several applications lodged by founders of the Association to intervene in the proceedings. Three of them, among them the second and the third applicants, intervened in favour of the Association and two others in favour of the University.
25. By a final judgment of 25 February 2009, the Bucharest County Court allowed the University’s appeal on points of law. It held that after the creation of the University the Association had lost its reason to exist as it had achieved its goal. It also noted that in the report drafted on that occasion it had been expressly mentioned that all the Association’s assets had been transferred to the University. Moreover, there was no evidence that the Association had continued its activity after its whole assets and staff had been transferred to the University. Accordingly, the court ordered the Association’s dissolution.
B. Relevant domestic law
26. The relevant provisions of Government Ordinance no. 26/2000 on associations and foundations read as follows:
Article 54
“(1) Associations… are dissolved:
a) ipso jure;
b) by a decision of a competent court of law …”
Article 55
“(1) An association is dissolved ipso jure… :
b) if the aim for which it has been set up has been attained or could no longer be attained and if within three months from reaching such conclusion the aim is not changed …;
(2) The dissolution shall be established by a decision of the court in whose territorial jurisdiction the association has its headquarters upon an application by any interested person.”
27. Law no. 239/2002 concerning the setting up of TituMaiorescu University, located in Bucharest, came in force on 30 April 2002. Article 4 of the law provides that all the staff working for the provisional authorised association will be transferred to the newly created university. Article 5 states that the assets of the newly created university consists of the assets transferred to it from the Association, as mentioned in the protocol handover attached as an annex to the law.
COMPLAINT
28. Relying on Article 11 of the Convention the applicants complained that the Bucharest County Court had infringed their right to freedom of association by its decision to dissolve the Association.
THE LAW
29. The applicants complained that their right to freedom of association had been infringed. They relied on Article 11 of the Convention, which reads as follows:
“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 in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
A. The parties’ submissions
1. The applicants
30. The applicants contended that the last-instance court had interfered with their right to freedom of association by deciding to dissolve the Association, but agreed that the interference had been prescribed by law. However, they did not agree with the way in which the domestic court had interpreted and applied the relevant legal provisions to their situation.
31. The applicants contested the allegation that the whole of the Association’s assets had been transferred to the University in 2002. They claimed that there had been only a partial disposal of their assets. Moreover, they did not agree that after the University had been set up, the Association had ceased to exist. According to their submissions, neither Law no. 239/2002 nor any other documents expressly stipulated that after the creation of the University the Association would cease to exist or should have been dissolved. The applicants further contended that after the University had been set up the Association had performed activities other than providing higher education, such as publishing, printing and dissemination of culture. It had also set up a publishing house named Titu Maiorescu.
32. The applicants concluded that the interference with their rights protected under Article 11 had had no legitimate aim and had been both unnecessary and disproportionate.
2. The Government
33. The Government submitted that the impugned measure had been taken in accordance with the law, Government Ordinance no. 26/2000, namely Article 55 § 1 (b) (see paragraph 26 above). The aim pursued by the measure had been the protection of other people’s rights as well as the security of judicial reports.
34. They maintained that the goal for setting up the Association had been the creation of a private university; therefore after new legal provisions which had imposed stricter requirements for operating a private university had been introduced, followed by the creation of the University by Law no. 239/2002 (see paragraph 27 below), the Association had lost the reason for which it had been set up.
35. The coexistence of the two legal entities, the Association and the University had been liable to mislead third parties as to their identity and field of activity. In this regard the Government pointed out that the Association had continued to use the misleading word “university” in its name.
36. The Government also maintained that the Association had not submitted any evidence to support its allegation that after the setting up of the University in 2002, it had pursued any research activity as it had claimed.
37. In the Government’s view the last-instance domestic court had thoroughly examined the application for the Association’s dissolution and had provided sufficient and relevant reasons.
B. The Court’s assessment
1. Whether there was an interference
38. The Court observes that it is not disputed between the parties that there was an interference with the applicants’ right to freedom of assembly, and it has no reason to hold otherwise.
2. Whether the interference was justified
39. The Court reiterates that such interference breaches Article 11 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims under paragraph 2 of that Article, and is “necessary in a democratic society” in order to fulfill those aims.
(a) Prescribed by law
40. The Court is satisfied that the impugned interference was prescribed by law, namely by Ordinance no. 26/2000 (see paragraph 26 above). Moreover, the applicants have not put forward any arguments capable of convincing the Court that the legal provisions regulating the dissolution of associations contained in that Ordinance were not accessible and foreseeable in their application.
(b) Legitimate aim
41. In the Court’s opinion, the impugned interference pursued a number of legitimate aims, specifically the protection of public order and the rights and freedoms of others.
(c) Necessary in a democratic society
42. As the Court has already held in its relevant case-law in matters of freedom of association, the right enshrined in Article 11 includes the right to form an association in order to act collectively in a field of mutual interest (see Gorzelik and Others v. Poland [GC], no. 44158/98, §§ 88-93, ECHR 2004‑I, and Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports of Judgments and Decisions 1998‑IV).
43. Freedom of association is not absolute, however, and it must be accepted that where an association, through its activities or the intentions it has expressly or implicitly declared in its programme, jeopardises the State’s institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. This follows both from paragraph 2 of Article 11 and from the State’s positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within its jurisdiction (see Gorzelik and Others, cited above, § 94).
44. The Court reiterates that the exceptions to freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”; thus, the notion “necessary” does not have the flexibility of such expressions as “useful” or “desirable”. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see TebietiMühafizeCemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 67, ECHR 2009).
45. In its scrutiny, the Court’s task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion; it must therefore look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Sidiropoulos and Others, cited above, § 40, and PartidulComunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005‑I).
46. Turning to the circumstances of the present case, the Court notes that Bucharest County Court held in its decision of 25 February 2009 by which it ordered the dissolution of the Association that the Association had achieved the goal for which it had been set up after the creation of the University in 2002. The domestic court also noted that there was no evidence to support the allegation that the Association had carried out any activity after the University had been established. In addition, the whole assets and staff of the Association had been transferred to the University (in the report drafted on that occasion it had been expressly mentioned that all the Association’s assets had been transferred to the University). The County Court concluded therefore that the existence of the Association without a goal could not be justified (see paragraph 25 above).
47. The Court considers that the domestic court of last resort had presented exhaustive reasoning demonstrating why the Association had basically ceased to exist after the setting up of the University.
48. Moreover, the Court notes that the domestic law applicable to associations, namely Ordinance no. 26/2000, provides for the possibility of dissolving an association should it be demonstrated that it has achieved the goal for which it has been created, or if it could not achieve its goal (see paragraph 26 above).
49. The Court also observes that the interlocutory decision of the Bucharest District Court of 25 January 1991 which ordered the registration of the Association stated that its purpose was to carry out activities in the area of higher education (see paragraph 5 above). After 1999 private universities could no longer operate as associations(see paragraph 7 above). However, the Association did not amend its Articles as regards its goal until February 2008 (see paragraph 14 above), after the University had lodged a request seeking its dissolution on 2 October 2007 (see paragraph 18 above).
50. Furthermore, although Law no. 239/2002 expressly provided that all the assets belonging to the Association were transferred to the University (see paragraph 9 above), the Association did not provide any information concerning the way in which it had reconstituted its assets.
51. The Court agrees with the applicants’ submission that neither Law no. 239/2002 nor any other documents expressly stipulated that after the creation of the University the Association would cease to exist or should have been dissolved (see paragraph 31 above). At the same time, there is no document in the file providing any information about any activities performed by the Association after the University was set up. Although the applicants contended that the Association had set up a publishing house named TituMaiorescu, they had not submitted any lists of the books published by it.
52. Furthermore, even after the creation of the University the Association maintained the word “university” in its name. The Court agrees to the Government’s argument that the coexistence of the University and the Association could be misleading for third parties (see paragraph 35 above). It is clear that the names “TituMaiorescu University” and “TituMaiorescu Independent University” could easily cause an interested party to err.
53. Taking into account all of the above the Court considers that the reasons invoked by the domestic court of last resort for dissolving the Association were determined by a “pressing social need” and were convincing and compelling. That being so, the interference with the applicant’s right of freedom of association does not disclose any appearance of violation of Article 11 of the Convention.
54. It follows therefore that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 November 2018.
Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President
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