Domestic (national or foreign) law legal persons that pursue their activities at international level
International freedom of association
Establishment of non-governmental organisations
RULING Nº 589/04
6 of October of 2004
The term "international associations" does not denote the international legal persons to which the Civil Code relates, for the purpose of determining the applicable law. The term can only cover legal persons under domestic law (national or foreign). The word "association" must be understood in the sense given to it by the Portuguese legal system, i.e. legal persons whose purpose is not to make profits for distribution to the members. With regard to the word "international", the term "international associations" is used to denote associations formed under a state legal system with international aims of a scientific, religious or other nature, which, in all probability, will pursue their activities in more than one state.
The term "international associations" therefore denotes legal persons under domestic law (national or foreign) which carry on their activities at international level. They are legal persons similar to those defined in public international law as "non-governmental organisations" (NGOs), although the term may sometimes not altogether correspond to this reality. International associations are non-profit-making bodies (unlike transnational companies). They are set up outside of any intergovernmental agreement by a group of persons (private or public, natural or legal), pursue very different aims and seek to influence or correct the action of states and "international organisations".
Article 46.1 of the Constitution is narrow in scope, stipulating that "citizens have the right to form associations freely and without prior authorisation, provided that the associations are not intended to promote violence and that their objectives are not contrary to the criminal law". In other words, the setting up of associations is not subject to any authorisation, except in the case of associations intended to promote violence and whose aims are contrary to the criminal law. The constitutional provision governs the positive freedom to form an association without any constraint and, further still, clearly rules out any administrative interference consisting in making the setting up of associations dependent on the approval of a public body. The text of the Constitution thus places an absolute ban on making the promotion and setting up of associations, whatever their nature and framework, subject to a system of authorisation (in the sense of an "administrative decision by virtue of which a person is able to exercise a right or legal powers" or a "decision whereby an administrative body allows a person to exercise a right or a pre-existing power").
The Provedor de Justiça (ombudsman) applied to the court for a finding of unconstitutionality having general binding force in respect of the legislative provision making the promotion and setting up of "international associations" subject to authorisation by the government, given that this governmental authorisation restricted freedom of association viewed as a positive right of association. Article 46.1 of the Constitution stipulates clearly that citizens may form associations without requiring any authorisation, provided such associations do not encourage violence and their aims are not contrary to the criminal law. These two conditions are the only limits which the Constitution sets on freedom of association.
First of all, the provision was unconstitutional because it was generally accepted that only the lack of any constraint at the time of forming associations made it possible to preserve that "progressive" or "negotiable" element which was the basis for the self-determination of associations. This self-determination of associations, viewed as the lack of any external limits to the formation of groups, was itself a requirement of the pluralist dynamics of contemporary liberal societies.
Even those who accepted the possibility of public-authority involvement at the setting-up stage of associations would acknowledge that such involvement could never take the form of a system of prior administrative authorisation that was not linked to a set of legally defined premises. In the case in point, such involvement could perhaps be based on the idea that international associations must not serve as a pretext for para-diplomatic activities which could affect the conduct of the Portuguese state's foreign policy. But the requirement of prior authorisation in order to be able to achieve that aim was a manifestly disproportionate restriction. This did not mean that there was total freedom of association and, accordingly, that all conditions introduced by the ordinary legislature were necessarily unconstitutional, as the setting of constitutive conditions could not be confused with a system of prior authorisation. Notwithstanding the fact that these conditions were legitimate in view of the specific nature of certain associations - the possibility of having different constitutive conditions depending on the type of association must not be ruled out -, the constitutional ban on prior authorisation applied to all forms of association.
Even if international associations, to which the provision in question related, were recognised as being of a "special nature", one failed to see how this "special nature" could justify a system of prior authorisation by the government, which, moreover, did not serve any objective purpose and had no basis that could be readily perceived in the interpretation of that provision, and for which a sufficient constitutional basis was lacking. In fact, this idea made it impossible to interpret the impugned provision in a manner consistent with the Constitution.
Three judges voted against the finding of unconstitutionality.
The Court affirmed the large body of Portuguese constitutional case-law on freedom of association. It also based its decision on international texts providing for freedom of association ( Articles 20 and 23.4 of the Universal Declaration of Human Rights, Article 11.1 of the European Convention on Human Rights, , Article 22.1 of the International Covenant on Civil and Political Rights, Articles 10 and 11 of the African Charter of Human and Peoples' Rights and the Charter of Fundamental Rights of the European Union) and on the case-law of the European Court of Human Rights (concerned mainly with defining the negative aspect of freedom of association).