Part I. Freedom of association and protection of the right to organize

Chapter VI. Dissolution and suspension of organizations by administrative authority

Introduction

180. Article 4 of the Convention provides that workers and employers' organizations shall not be liable to be dissolved or suspended by administrative authority; Article 6 extends this guarantee to federations and confederations. Administrative measures of this kind being one of the most extreme forms of interference by the public authorities in the activities of organizations, since they put an end to the exercise of trade union activities, the Committee pays close attention to the conditions under which it may be concluded that dissolution or suspension - or any measure having the same results in practice - does not impair the guarantees provided for in the Convention.

181. While Article 4 of the Convention completes the guarantees relating to the establishment and functioning of organizations by affording them guarantees against arbitrary dissolution or suspension by administrative authority, it does not grant them any immunity with regard to the ordinary law; organizations and their members, under Article 8(1) of the Convention, are bound to respect the law of the land. Thus, for example, an organization seeking to undermine the internal and external security of the State cannot invoke the principles of freedom of organization in order to evade the application of the rules laid down in the ordinary law which are applicable to all unlawful associations. (Endnote 1) The corollary of this obligation imposed on organizations and their members is that, under Article 8(2), 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.

Dissolution and suspension of organizations

182. In many countries the legislation provides that only the judicial authorities may order the dissolution or suspension of an organization alleged to have infringed the law; (Endnote 2) in some cases a request must be submitted by the registrar. (Endnote 3) Some laws, however, provide for dissolution or suspension by administrative authority, (Endnote 4) the situation varying according to a number of factors: the possibility of a judicial appeal against the administrative decision, the extent to which the court can examine the substance of the case, and whether or not the appeal has the effect of staying the execution of the administrative decision.

183. In addition to situations in which organizations may be dissolved or suspended under the legislation on labour relations, such measures may also be taken following a decision of the executive power pursuant to a law conferring full powers, (Endnote 5) a special decree (Endnote 6) or a state of emergency. (Endnote 7) As the Commission of Inquiry on Poland emphasized, "... although it is true that Article 4 of the Convention refers only to measures taken by administrative authority, the fact remains that dissolution by legislative authority entails consequences that are just as irremediable as a definitive dissolution by administrative authority since neither admits of appeal to independent bodies". (Endnote 8) It is therefore essential to determine whether a given dissolution by legislative authority prevents workers from maintaining their membership and pursuing their activities in trade unions of their own choosing; if this is the case, such legislation would not be in conformity with the Convention.

184. Certain measures, which cannot be described as dissolution or suspension by administrative authority in the strict sense of the term, none the less give rise to difficulties because they have a similar effect on the organizations concerned. For example, such measures may consist in the loss of advantages which are essential to carrying out their activities, or a condition upon which their existence depends: arbitrary cancellation of registration by an administrative authority (Endnote 9) or annulment or suspension of legal personality. (Endnote 10) This category can also include provisions resulting in dissolution or de facto paralysis of an organization's activities, for example, by depriving it of its financial resources (stopping or suspending for a long period the payment of dues) under the terms of legislation which itself runs counter to the principles of freedom of association.

185. All of the measures described above involve a serious risk of interference by the authorities in the very existence of organizations and should therefore be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. It is preferable for legislation not to allow dissolution or suspension of workers' and employers' organizations by administrative authority, but if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure; (Endnote 11) moreover, the administrative decision should not take effect until a final decision is handed down. Measures of dissolution or suspension taken during an emergency situation should also be accompanied by normal judicial safeguards, including the right of appeal to the courts against such dissolution or suspension.

Trade union assets

186. The dissolution of an organization raises the problem of distribution or transfer of its assets. The legislation in some countries contains provisions on this subject which vary according to whether the dissolution was voluntary or not. (Endnote 12) As regards the distribution of trade union assets, the Committee shares the view of the Committee on Freedom of Association that the assets should be used for the purposes for which they were acquired. (Endnote 13)

187. A special problem has arisen and continues to occur, in particular in several Central and Eastern European countries where, following the process of political, economic and social transformation, special laws have recently been adopted in order to distribute the assets of former single trade union organizations. (Endnote 14) Such legislative measures should take into account the fact that these trade unions often performed functions normally carried out by the State in a system of trade union pluralism, and possessed the corresponding amount of resources and staff. In the view of the Committee, legislative intervention to regulate the devolution of trade union assets is not in itself incompatible with the Convention; however, it is for the government and all of the trade union organizations concerned to cooperate in seeking a definitive formula so that the government, on the one hand, may recover the assets it needs to perform its new functions and all the trade unions, on the other, are able to carry out their activities effectively, in full independence, and on an equal footing. To this end the authorities should duly consult the country's representative organizations before adopting legislative measures. (Endnote 15)

188. The dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations, and should therefore be accompanied by all the necessary guarantees. This can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution. As regards the distribution of trade union assets in the event of dissolution, these should be used for the purposes for which they were acquired. The authorities and all of the organizations concerned should cooperate so that all of the trade unions are able to carry out their activities in full independence and on an equal footing.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Case reference:0319922841508 Report=284 Case=1508 * Sudan
Case reference:0319922841633 Report=284 Case=1633 * Sudan
Case reference:0319932861623 Report=286 Case=1623 * Bulgaria
Case reference:0319932871637 Report=287 Case=1637 * Togo
Not in ILOLEX: Report No. 194 Case(s) No(s). 900 * Spain
Digest reference:1985_09_04
Digest reference:1985_09_05