Lexploria

Application No. 12119/86

P.

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 6 March 1990)

- i -

12119/86

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-16) 1

A. The application (paras. 2-4) 1

B. The proceedings (paras. 5-11) 1

C. The present Report (paras. 12-16) 2

II. ESTABLISHMENT OF THE FACTS (paras. 17-34) 3

A. The particular circumstances of the case 3

(paras. 17-27)

B. The relevant domestic law and practice 4

(paras. 28-34)

III. OPINION OF THE COMMISSION (paras. 35-54) 6

A. Point at issue (para. 35) 6

B. Article 6 of the Convention 6

(paras. 36-53)

a. Applicability of Article 6 para. 1 6

(paras. 37-50)

aa. Was there a dispute regarding a 6

"right"? (paras. 38-47)

bb. Was the right "civil" in character? 8

(paras. 48-50)

b. Compliance with Article 6 para. 1 of 8

the Convention (paras. 51-53)

Conclusion (para. 54) 9

APPENDIX I History of the proceedings 10

before the Commission

APPENDIX II Decision on the admissibility 11

of the application

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

A. The application

2. The applicant is a Swedish citizen born in 1959 and resident

in Övertorneå. The applicant is represented before the Commission by

Mr. Göran Ravnsborg, a university lecturer at the University of Lund.

3. The application is directed against Sweden. The respondent

Government are represented by their Agent, Mr. Hans Corell,

Ambassador, Under-Secretary at the Ministry of Foreign Affairs,

Stockholm.

4. The case concerns the refusal of the Swedish administrative

authorities to grant to the applicant, a taxi-owner, an exemption from

the duty to belong to a dispatch exchange. The applicant complains

that he has no access to court in order to have the administrative

decisions reviewed and alleges accordingly a violation of Article 6

para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 17 October 1985 and

registered on 14 April 1986.

6. On 4 July 1988, the Commission decided, pursuant to Rule

42 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite them to submit

before 7 October 1988 their written observations on the admissibility

and merits of the applicant's complaints under Articles 6, 11 and 14

of the Convention.

7. The Government sent their written observations on 6 October

1988 and the applicant's observations in reply were received on

3 March 1989 after two extensions of the time-limit. The applicant

submitted supplementary observations on 26 August 1989.

8. The Commission considered the application again on 6 September

1989 and declared admissible the applicant's complaints under Article

6 para. 1 of the Convention. It declared the remainder of the

application inadmissible.

9. The parties were then invited to submit any additional

observations or further evidence which they wished to put before the

Commission.

10. The Government informed the Commission on 8 December 1989

that they wished to submit no further observations. No further

observations were received from the applicant.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. In the light of the parties'

reactions, the Commission now finds that there is no basis on which a

friendly settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. C.A. NØRGAARD, Président

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mme G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mme J. LIDDY

M. L. LOUCAIDES

13. The text of the Report was adopted by the Commission on

6 March 1990 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

15. A schedule setting out the history of the proceedings before

the Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant is a self-employed taxi-owner.

18. The applicant has previously submitted an application (No.

10426/83) concerning the revocation of his licence to operate

inter-urban traffic on certain routes. He complained inter alia that

he had no possibility of having the revocation of the licence examined

by a court. The Commission as well as the Court found that there had

been a breach of Article 6 para. 1 of the Convention (cf. Eur. Court

H.R., Pudas judgment of 27 October 1987, Series A no. 125-A). In his

present application the applicant complains that he was refused an

exemption from a legally imposed duty to belong to a common taxi

dispatch exchange.

19. On 1 February 1980 the County Administrative Board

(länsstyrelsen) of Norrbotten granted the applicant a taxi traffic

licence, and on 20 May 1980 - the day on which he commenced his

business - he was granted a licence to operate inter-urban traffic on

certain routes. The latter licence was revoked on 17 August 1981. The

applicant's transportation business was established at Hedenäset, a

village approximately 20 km from Övertorneå.

20. On 5 October 1982, the County Administrative Board,

in a decision concerning the organisation of the taxi traffic in the

Övertorneå municipality, required that the applicant, and another

licence holder with his car stationed at Hedenäset, Mr. Thörmänen,

should before the end of 1982 subscribe to the common dispatch

exchange at Övertorneå.

21. The Övertorneå Municipality in the County of Norrbotten is

divided into two taxi zones, one for the main population centre,

Övertorneå, and one for the rest of the municipality. There is a

common dispatch exchange, situated at Övertorneå, for the two taxi

zones. The dispatch exchange is run by the licence holders of the

Övertorneå taxi zone through the Övertorneå Taxi Economic Association

(ÖTEA).

22. The applicant and Mr. Thörmänen appealed to the Board of

Transport (transportrådet) claiming exemption from the duty to belong

to the common dispatch exchange at Övertorneå. They alleged, inter

alia, that the majority of the members of ÖTEA were opposed to their

affiliation to the association's dispatch exchange and that the

working committee of the Municipal Executive Board (kommunstyrelsens

arbetsutskott), in an opinion of 29 December 1981 to the County

Administrative Board, on the division of the county into taxi traffic

zones, had stated that the County Administrative Board ought to grant

an exemption for the taxi-owners of the municipality from the

requirement to belong to a common dispatch exchange. They also

alleged that their business was well established at Hedenäset and that

the affiliation would affect them negatively. The Board of Transport

returned the appeal to the County Administrative Board since the

requests for exemption had not been dealt with by that Board.

23. On 8 June 1983 the County Administrative Board refused to

grant the exemptions requested. The reason given for the refusal

was that the applicant and Mr. Thörmänen had not indicated any reasons

in support of their requests that could justify exemptions from the

decision of the County Administrative Board of 5 October 1982.

24. The applicant and Mr. Thörmänen appealed to the Board of

Transport. The applicant referred to an opinion, given by the

Municipal Executive Board on Mr. Thörmänen's appeal, in which that

Board supported Mr. Thörmänen's appeal. On 29 June 1984 the Board of

Transport rejected the applicant's appeal, for the same reasons as the

County Administrative Board. Mr. Thörmänen's appeal was also rejected.

25. The applicant then appealed to the Government claiming an

exemption from the duty to belong to a common taxi dispatch exchange.

Alternatively, he claimed that his compulsory affiliation to the

dispatch exchange should be executed by means of a contract drafted

with the active assistance of the Office of the Ombudsman for Free

Enterprise (Näringsfrihetsombudsmannen) and providing that he should

receive full compensation for costs and losses in his business caused

by the affiliation and that he should receive compensation for costs

connected with the fact that he personally had to move from his

parents' home at Hedenäset to Övertorneå because of the affiliation.

26. The Government rejected the applicant's appeal on

25 April 1985.

27. The applicant became a member of ÖTEA in September 1985.

In order to do so he had to pay a subscription fee of 25,000 SEK and

he also had to install a communication radio in his vehicle at a cost

of 5,247 SEK. The applicant has moved from his parents' home at

Hedenäset to an apartment at Övertorneå.

B. The relevant domestic law and practice

28. The relevant provisions concerning taxi traffic, as well as

other commercial and public transportation, are contained in the 1979

Act on Commercial Transportation (yrkestrafiklagen) and the 1979

Ordinance on Commercial Transportation (yrkestrafikförordningen).

29. Taxi traffic may only be conducted by persons who have a valid

transportation licence. A licence can be obtained upon application to

the County Administrative Board. Licences are only to be granted to

persons (physical or legal), who are deemed suitable to conduct the

service (Chapter 2 Section 3 of the 1979 Act). In examining

applications, such factors as professional qualifications, and

personal and economic circumstances are considered. The purpose of

these prerequisites is to ensure that transportation is carried out

under satisfactory circumstances. Other conditions are that the

service is deemed necessary and otherwise appropriate (Chapter 2

Sections 11 and 17 of the 1979 Act). The reason for this is the

overall aim to maintain an adequate network of transportation and to

counteract the establishment of unnecessary services. Specific

conditions are often appended to passenger transportation licences.

These include the obligation for holders of licences for

transportation on demand with lighter vehicules, such as taxis, to

offer a regular service for passengers.

30. A licence can be revoked, on condition that the licence has

been misused in such a way that the holder can no longer be deemed

suitable to conduct the service. In less serious cases, a warning may

be issued. If the service is not kept up, the licence should also be

revoked (Chapter 3 Sections 1 and 2 of the 1979 Act).

31. The County Administrative Boards decide what specific

conditions should be met under the licence.

32. In addition these Boards have a supervisory function. They

are also authorised to revoke licences. Appeals against the decisions

of a County Administrative Board may be made to the Board of

Transport. As a last instance, the Government may review decisions of

the Board of Transport.

33. The taxi traffic is organised in zones which comprise a

certain district of a county. A taxi licence is granted for a certain

zone. In each traffic zone there is normally one taxi association,

which, inter alia, is charged with the task of keeping a dispatch

exchange.

34. According to Chapter 4 Section 10 of the 1979 Ordinance a

licence holder for taxi transportation must belong to a common

dispatch exchange. The same provision authorises the County

Administrative Board to grant an exemption from this obligation if

there are special reasons. This provision was added to the Ordinance

in 1980 and entered into force on 1 October 1980. Chapter 4 Section

10 reads:

(Swedish)

"Den som har tillstånd till beställningstrafik för

persontransporter med lättare fordon skall vara

ansluten till en beställningscentral, som är

gemensam för ett eller flera trafikområden.

Föreligger särskilda skäl får den tillståndsgivande

länsstyrelsen medge undantag från denna skyldighet."

(English translation)

"A person who has a licence for transportation of

passengers with lighter vehicles shall be affiliated

to a dispatch exchange, which is common for one or

more traffic zones. Where there are special reasons

the County Administrative Board may grant an exemption

from this duty."

III. OPINION OF THE COMMISSION

A. Point at issue

35. The only issue to be decided is whether or not Article 6 para.

1 (Art. 6-1) of the Convention is applicable in the present case and,

if so, whether or not there has been a violation of that provision.

B. Article 6 (Art. 6) of the Convention

36. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that no court remedy was available in

respect of the refusal of the administrative authorities to grant him

an exemption from the requirement to join a dispatch exchange. The

Government submit that this complaint falls outside the scope of

Article 6. (Art. 6) In case the Commission were to find that Article

6 para. 1 (Art. 6-1) applies in the case, they admit that the

applicant could not take proceedings before a tribunal satisfying that

provision.

Article 6 para. 1 (Art. 6-1) first sentence reads:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law."

a. Applicability of Article 6 para. 1 (Art. 6-1)

37. The applicability of Article 6 para. 1 (Art. 6-1) of the

Convention depends on whether the applicant was seeking the

determination of a dispute (French: contestation) regarding a "right"

and, if so, whether that "right" was "civil" in character.

aa. Was there a dispute regarding a "right"?

38. Article 6 para. 1 (Art. 6-1) applies only to disputes

("contestations") over "rights and obligations" which can be said, at

least on arguable grounds, to be recognised under domestic law. It

does not in itself guarantee any particular content for "rights and

obligations" in the substantive law of the Contracting States (cf.

Eur. Court H.R., Lithgow and Others judgment of 8 July 1986, Series A

no. 102, p. 70, para. 192). On the other hand, it is not decisive

whether a certain benefit, or possible claim, is characterised as a

"right" under the domestic legal system. This is so since the term

"right" must be given an autonomous interpretation in the context of

Article 6 para. 1 (Art. 6-1). In its Report in the case of W v. the

United Kingdom (Comm. Report 15.10.85, para. 115, Eur. Court H.R.,

Series A no. 121-A, pp. 48-49) the Commission held that:

"Even where a benefit can be granted as a matter of discretion

rather than as a matter of right, a claim for such a benefit

may well be considered to fall within the ambit of (Article 6

para. 1 (Art. 6-1) )."

39. It is established case-law that Article 6 para. 1 (Art. 6-1)

guarantees to everyone who claims that an interference by a public

authority with his "civil rights" is unlawful the right to submit that

claim to a tribunal satisfying the requirements of that provision (see

Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23

June 1981, Series A no. 43, p. 20, para. 44). The claim or dispute

must be "genuine and of a serious nature" (see e.g. Eur. Court H.R.,

Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para.

32). The dispute may relate not only to the actual existence of a

right but also to its scope or the manner in which it may be

exercised. The dispute may concern both questions of fact and

questions of law (see e.g. Eur. Court H.R., Van Marle and Others

judgment of 26 June 1984, Series A no. 101, p. 11, para. 32).

40. The Government argue that the discretion of the County

Administrative Board in granting exemptions is so wide that the

applicant could not be said to have any "right" within the meaning of

Article 6 (Art. 6).

41. Pursuant to Chapter 4 Section 10 of the 1979 Ordinance a

licence holder must belong to a common dispatch exchange. The same

provision authorises exemptions from this obligation where there are

special reasons. The public authorities therefore enjoy a wide

discretion, and the question arises whether the applicants could, on

arguable grounds, claim a right under Swedish law to obtain an

exemption.

42. In this connection, the Commission recalls the case of H. v.

Belgium (Eur. Court H.R., judgment of 30 November 1987, Series A

no. 127, pp. 31-32, paras. 41-43), in which the European Court held

that there was a dispute over a "right" under Belgian law when the

Council of the Ordre des Avocats was called upon to decide whether

there were "exceptional circumstances" which warranted the applicant's

readmission as an avocat. The Court noted that the term

"exceptional circumstances" was capable of being interpreted and

applied in a wide variety of ways (para. 42) and that the Council had

some discretion in deciding whether the requirement of "exceptional

circumstances" had been met (para. 43). Nevertheless, the Court found

that the applicant could arguably maintain that he satisfied that

condition and that there was, therefore, a dispute over a "right" in

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 43).

43. Similarly, in the case of the Estates of Mr. and Mrs. Skärby

and Others v. Sweden (Comm. Rep. 16.3.89) the Commission found that

there was a dispute over a "right" under Swedish law with regard to a

decision by a local Building Committee not to grant the applicants an

exemption from the regulations in a building plan.

44. The Commission finds that as in the case of H. v. Belgium and

the case of the Estates of Mr. and Mrs. Skärby and Others, the

discretion at issue in the present case was wide but not unlimited and

had to be exercised in the framework of the applicable law. In its

judgment in the Pudas case (Eur. Court H.R., Pudas judgment of

27 October 1987, Series A no. 125, pp. 40-41, paras. 32-34), the

European Court stated that it followed from "generally recognised

legal and administrative principles that the authorities did not have

an unfettered discretion" when deciding whether or not to revoke a

traffic licence.

45. According to the said "legal and administrative principles",

the County Administrative Board was obliged, when examining the

applicant's request, to take all the different public and private

interests involved into account as well as the general purposes of the

applicable transportation legislation. It also had the task to

determine on this basis whether there were sufficient reasons for

granting the request for an exemption. It is also clear that the

Board was under an obligation not to let its decision be influenced by

any irrelevant considerations and to decide on the issue under a fair

procedure and in accordance with general legal rules such as the

obligation to give equal treatment to all citizens.

46. In the present case, the applicant is of the opinion that if

the Board had made a proper assessment of the different issues and

interests involved, it should have granted the exemption requested.

Consequently, he must be understood to claim that, in the

circumstances, he had a right to obtain such exemption and that he was

denied this right by the Board. The applicant alleges that the

Board's decision was not based on convincing reasons and breached the

applicant's right to negative freedom of association.

47. In these circumstances, the applicant's allegation is not only

that the County Administrative Board exercised its discretion to his

disadvantage but also that the Board took a decision which was

contrary to Swedish law. For these reasons the Commission finds that

there existed a "serious" and "genuine" dispute over the applicant's

"rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

bb. Was the right "civil" in character?

48. The Commission recalls that the character of the right to

obtain a taxi licence has already been considered in the Pudas case

(Eur. Court H.R., Pudas judgment, loc. cit., pp. 15-16, paras. 35-38,

Comm. Report 4.12.85 in the same case annexed to the Pudas judgment,

paras. 43-45, p. 25). Both the Commission and the Court found that

the licence was related to the applicant's exercise of his business

activities as a taxi-owner and that the dispute accordingly concerned

a "civil right".

49. In the present case, the dispute concerns the requirement of

the applicant to be affiliated to a taxi dispatch exchange. The

Commission, noting the costs involved for the affiliation (para. 27),

finds that this issue is connected with the applicant's exercise of a

commercial activity, carried out with the object of earning profits

and based on a contractual relationship between the licence holder and

his customers.

50. Consequently, the Commission finds that the dispute concerns

"civil" rights of the applicant and that Article 6 para. 1 (Art. 6-1) is

applicable.

b. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

51. The Commission has next examined whether the applicant had

the possibility of submitting the dispute as to the exemption from the

obligation to be affiliated to the dispatch exchange to a "tribunal"

satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention.

52. The Commission recalls that an appeal lay from the County

Administrative Board to the Board of Transport and from there to the

Government. The Commission finds, and the Government do not dispute,

that these proceedings did not satisfy the requirements of Article 6

para. 1 (Art. 6-1) of the Convention. The Commission further recalls

that the Government admit that the applicant was not entitled to take

his complaints before a tribunal as required by Article 6 para. 1

(Art. 6-1). The Commission finds that indeed no such remedy was

available to the applicant.

53. It follows that the applicant did not have at his disposal a

procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1)

in respect of the dispute which arose over the refusal to grant him an

exemption from the duty to belong to a dispatch exchange.

Conclusion

54. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

17.10.85 Introduction of the application

14.04.86 Registration of the application

Examination of admissibility

04.07.88 Commission's deliberations and

decision to invite the Government

to submit observations in writing

06.10.88 Government's observations

03.03.89 Applicant's reply

06.09.89 Commission's deliberations and

decision to declare the application

partially admissible and partially

inadmissible

Examination of the merits

06.09.89 Deliberations on the merits

09.12.89 Commission's consideration of state

of proceedings

06.03.90 Commission's deliberations on the

merits, final votes and adoption of

the Report

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P. v. SWEDEN

P. v. SWEDEN

LEXI