Lexploria

Application No. 12213/86

Jon AXELSSON, Roy GASPER,

Lars-Erik HJELM and Stig NISSEN

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 11 April 1989)

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. 17-39) 3

A. The particular circumstances of the case 3

(paras. 17-29)

B. The relevant domestic law and practice 5

(paras. 30-39)

III. OPINION OF THE COMMISSION (paras. 40-60) 8

A. Point at issue (para. 40) 8

B. Article 6 of the Convention 8

(paras. 41-58)

a. Applicability of Article 6 para. 1 8

(paras. 42-54)

aa. Was there a dispute regarding a 8

"right"? (paras. 43-53)

bb. Was the right "civil" in character? 10

(paras. 54-56)

b. Compliance with Article 6 para. 1 of 10

the Convention (paras. 57-59)

Conclusion (para. 60) 11

Dissenting opinion of MM. Trechsel, Weitzel,

Schermers and Campinos 12

APPENDIX I History of the proceedings 13

before the Commission

APPENDIX II Decision on the admissibility 14

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 applicants, Jon Axelsson, Roy Gasper, Lars-Erik Hjelm and

Stig Nissen, are Swedish citizens born in 1952, 1940, 1935 and 1946

respectively. The applicants are 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 authorities to

grant to the applicants reserve taxi licences in connection with their

taxi business. The applicants complain that they have no access to

court in order to have the administrative decisions reviewed and

allege accordingly a violation of Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 15 January 1986 and

registered on 2 June 1986.

6. On 7 December 1987, 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 4 March 1988 their written observations on the admissibility

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

of the Convention.

7. The Government sent their written observations on 28 March

1988, after an extension of the time-limit, and the applicants'

observations in reply were received on 18 May 1988.

8. The Commission considered the application again on 10 October

1988 and declared admissible the applicants' 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 submitted further observations on 12 January

1989 and the applicants' supplementary observations were received on

30 January 1989.

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

accordance with Article 28 (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. J.A. FROWEIN, Acting President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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

11 April 1989 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 applicants are taxi owners and holders of taxi licences

for the area of Malmö. They are members of ROYSTAXI Economic

Association founded in 1981.

18. According to the 1979 Act on Commercial Transportation

(yrkestrafiklagen) and the 1979 Ordinance on Commercial Transportation

(yrkestrafikförordningen), taxi traffic may be conducted only by

persons who have a transportation licence. In addition to this

licence, a licence-holder can obtain a reserve licence applicable to a

reserve car. Both kinds of licences can be obtained upon application

to the County Administrative Board (länsstyrelsen).

19. In April 1980 the County Administrative Board of the County of

Malmöhus granted the Malmö Taxi Economic Association (MTEA) 35 reserve

licences. MTEA already had 55 such licences. Two months later the

Board rejected Mr. Gasper's application for a short-time reserve

licence. Mr. Gasper filed a new application for a permanent reserve

licence, which was rejected by the Board on 25 March 1981. Mr. Gasper

appealed to the Board of Transport (transportrådet) which rejected the

appeal. The Board referred in its decision to the 90 reserve licences

held by MTEA as satisfying the need in the zone, and added that the

supervision of the actual demand for taxi transportation was best

carried out through MTEA's dispatch exchange to which the members of

ROYSTAXI did not subscribe.

20. On 16 June 1981 and 28 July 1981 respectively, the County

Administrative Board rejected two further applications for reserve

licences from Mr. Gasper. On 27 November 1981 a similar application

from Mr. Hjelm was rejected by the County Administrative Board.

21. On 27 November 1981 an application for a reserve licence filed

by Mr. Nissen was rejected by the County Administrative Board which

referred to the 90 reserve licences of MTEA and the supervisory

function of the dispatch exchange as well as to the earlier rejections

of ROYSTAXI's members' applications. Mr. Nissen appealed to the Board

of Transport which rejected the appeal. Mr. Nissen submitted a

further appeal to the Government which rejected the appeal on

2 September 1982.

22. In September 1984, all the applicants filed a new application

for reserve licences. In their request, they stated that their

capacity to cope with their customers would be under strain without

further licences, that they were being discriminated against in

relation to MTEA and that reserve licences had no connection with

affiliation to a particular dispatch exchange. In a written opinion

submitted to the County Administrative Board, the municipality of

Malmö found that there was no reason why the licences should not be

granted, while MTEA submitted inter alia that there was an

over-establishment of taxi businesses in the area and that MTEA had

resources to cope with even a steep increase in the demand for

services. The Trade Union of Swedish Transport Workers (svenska

transportarbetareförbundet) held that there was no need for

supplementary licences at that time, though it considered two reserve

licences should be granted to the association ROYSTAXI.

23. On 7 November 1984, the County Administrative Board refused

the applicants' request, stating:

"According to Chapter 2 Section 11 of the Act on Commercial

Transportation a transportation licence may be granted only

when the envisaged transportation service is deemed necessary

and otherwise appropriate. The County Administrative Board

is under the obligation to consider the total offer of taxi

vehicles in a transportation zone in relation to the demand.

In view of the excessive establishment in the taxi business

in the transportation zone of Malmö-Burlöv, the County

Administrative Board holds that there is no need for further

licences at present."

24. The applicants appealed to the Board of Transport arguing

inter alia that the County Administrative Board's decision was not

based on convincing reasons and that the decision was in breach of the

applicants' right to negative freedom of association. In an opinion

submitted to the Board, the County Administrative Board stated:

"There are at present about 210 ordinary taxi licences in

the transportation zone of Malmö-Burlöv. At present, this

is a sufficient quantity. Apart from the ordinary licences

MTEA holds about 90 reserve licences on behalf of its

members. However, these licences are only used to a small

extent, since MTEA has chosen to use extra commands

instead of using the reserve licences, when demand for

transportation is high. Occasionally, however, there may

be a need for further taxi vehicles, for instance at Christmas

and at New Year etc. Of course, it is also a matter of

great interest to the appellants to be able to use their

reserve vehicles as much as possible. The County

Administrative Board, however, is not prepared to grant the

appellants reserve licences at present. One important

reason for this is the following. In the autumn of 1984

the economic association ROYSTAXI has started a dispatch

exchange of its own, in cooperation with Securitas,

Southern Sweden AB. The County Administrative Board has

requested the association to establish a command plan for

its activity, but the association has refused to do so.

Without a command plan it will be difficult to prevent

reserve licences from being used to such an extent that

they may compete with ordinary licences. The County

Administrative Board also calls attention to the fact

that MTEA is holding an extra general assembly on

29 January 1984 to take a final decision regarding an

amendment of its statutes, which will mean that the

dispatch exchange may become accessible also to independent

subscribers. If the dispatch exchange is opened,

negotiations to bring about cooperation between these two

associations should start as soon as possible. In that

context, the question of reserve licences should be reviewed.

One prerequisite for this is, however, that the County

Administrative Board be given the possibility to control

the activity by means of a command plan. The County

Administrative Board advises against upholding the appeal."

25. The applicants' appeal was dismissed on 8 March 1985, the

Board of Transport holding that when assessing the necessity of a

licence, consideration must be given to the number of such licences

within the entire area and against this background, it could not be

said that there was any need for further licences.

26. The applicants appealed against this decision to the

Government arguing again that they were discriminated against and that

their right to negative freedom of association had been violated and

in addition they claimed damages and costs. The County Administrative

Board in an opinion to the Government reported that MTEA had changed

its statutes and that a meeting had been held between MTEA and

ROYSTAXI:

"In this context, MTEA assured that if ROYSTAXI was to join

the common dispatch exchange of MTEA, ROYSTAXI would also

be permitted to have the 90 reserve licences at its disposal.

From what has now been said it appears, however, in the

opinion of the County Administrative Board, that ROYSTAXI

does not wish to join the common dispatch exchange. It may

be added that the County Administrative Board has asked

ROYSTAXI to hand in a project for a command plan to the

Board. In spite of reminders, no such plan has been

submitted. Considering the circumstances now mentioned, and

in view of what has been stated in (the Board's) decision,

the County Administrative Board requests that the appeal

be rejected."

27. The Government dismissed the applicants' appeal on 5 September

1985.

28. On 17 April 1986 the County Administrative Board granted 13

reserve licences to a new transportation organisation, the TS Taxi

Transport Service with a special permit of non-connection with the

local taxi dispatch exchange. The Board of Transport reversed this

decision, but the decision of the Board of Transport was in its turn

quashed by the Government on 4 December 1986 and the grant of the

licences was then confirmed.

29. In or about 1988, MM. Axelsson, Hjelm and Nissen lodged new

applications for personal taxi reserve licences. On 19 October 1988,

the County Administrative Board granted a number of reserve licences

to ROYSTAXI with a special permit of non-connection with a local taxi

dispatch exchange.

B. The relevant domestic law and practice

30. Commercial and public transportation is governed by the 1979

Act on Commercial Transportation and the 1979 Ordinance on Commercial

Transportation. Such transportation is defined as transportation

service - by car, truck or bus - offered to the public for a fee

(Chapter 1 Section 4 of the Act). Such transportation may only be

conducted by persons in possession of a valid transportation licence

(Chapter 2 Section 1 of the Act). Licences are issued for either

goods or passenger transportation.

31. 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 Act). In examining applications, such factors as

professional qualifications and personal and economic circumstances

are considered.

32. Other conditions for passenger transportation are that the

service is deemed necessary and otherwise appropriate (Chapter 2

Sections 11 and 17 of the Act).

33. Specific conditions are often appended to passenger

transportation licences. One such condition may be for instance that

the licence concerns reserve transportation and that it may be used

only when there is a need for it, and when ordinary transportation

licences are already being used.

34. Holders of licences for transportation on demand with lighter

vehicles (taxis) are under the obligation to transport passengers and

baggage on such conditions as are applicable to that kind of

transportation. Availability is regulated by so called command plans.

A maximum fare rate is established by the authorities.

35. The licence holder for taxi transportation must be connected

to a dispatch exchange which is common to one or several

transportation zones. The County Administrative Board may grant an

exemption from this obligation on special grounds (Chapter 4 Section

10 of the Ordinance). Generally, there is no more than one dispatch

exchange in each transportation zone. The establishment of several

smaller units is not economically feasible because of the high cost of

modern computerised exchanges. The possibility of a dispensation from

the obligation to subscribe to a dispatch exchange is mainly available

to cater for the needs of taxi services in the vast sparsely populated

areas of the country.

36. A passenger transportation licence can be revoked, if 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 Act).

37. Licences are usually issued by the County Administrative

Board. The Board also decides what specific conditions should be met

under the licence. Before it is decided whether to grant a licence

for transportation on demand, the competent Police Authority should be

asked to state its opinion. Municipalities, organs responsible for

communications, associations of those who carry out commercial

transportation and such trade unions as may be concerned by the

envisaged transportation activity shall also be given an opportunity

to submit their opinion. The County Administrative Board also has a

supervisory function and is authorised to revoke licences. Appeals

against the decisions taken by a Board may be lodged with the Board of

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

made by the Board (Chapter 2 Section 1 and Chapter 12 Section 2 of the

Ordinance).

38. Reserve licences are granted to enable taxi enterprises to

provide their customers with acceptable services when demand is high.

Reserve licences are transportation licences that are subject to the

condition that they may be used only to a limited extent, for instance

when other licences are already being used. Such licences are,

according to widespread practice, usually granted to the economic

associations of taxiowners or to other entities that manage dispatch

exchanges. The reason for this is that those who manage a dispatch

exchange are best placed to decide when supplementary vehicles are

required. The licences are generally used in turn by those connected

to the dispatch exchange. Individual licence holders may also be

granted a reserve licence.

39. In January 1988, the Government submitted to Parliament two

Bills on the deregulation of commercial transportation (Government

Bills 1987/88:50 and 1987/88:78). The new Act on Commercial

Transportation, which modifies the conditions for granting taxi

licences and for running a taxi business, came into force on 1 January

1989. The new Act also grants a right of appeal to the Administrative

Court of Appeal (kammarrätten) against most decisions regarding

transportation licences.

III. OPINION OF THE COMMISSION

A. Point at issue

40. 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

41. The applicants allege 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 them reserve taxi licences. The

Government submit that this complaint falls outside the scope of Article 6

(Art. 6).

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)

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

depends on whether the applicants were 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"?

43. 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 or right, a claim for such a benefit

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

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

44. 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).

45. The Government have argued that the discretion of the County

Administrative Board in granting taxi licences is so wide that the

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

the Convention.

46. Pursuant to the 1979 Act on Commercial Transportation and the

1979 Ordinance on Commercial Transportation, notably Chapter 2

Sections 2, 11 and 17 of the Act, reserve taxi licences may be

granted, provided that the applicant is suitable and that the service

in question is deemed necessary and otherwise appropriate. The

legislation does not indicate any more precise criteria for

determining in which cases licences shall be granted. 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 reserve taxi licences.

47. 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).

48. 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.

49. 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.

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

the County Administrative Board was obliged, when examining the

applicants' 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 a licence. 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.

51. The Commission also notes that, in comparison with the case of

H. v. Belgium and the case of the Estates of Mr. and Mrs. Skärby and

Others, the criteria for granting the licences indicated in the Act on

Commercial Transportation are more precise than the criteria in the

corresponding provisions in the above-mentioned cases. A further

difference between the cases is that, in the present case, the dispute

concerned a normal administrative decision as to whether a licence

should be granted, whereas in the other cases the question was whether

an exemption should be granted from an existing prohibition or

exclusion.

52. In the present case, the applicants are of the opinion that if

the Board had made a fair assessment of the different interests

involved, it should have granted the reserve licences in their case.

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

circumstances, they had a right to obtain such licences and that they

were denied this right by the Board. The applicants allege that they

were discriminated against as compared to other taxi firms such as

MTEA and that reserve licences should have no connection with

affiliation to a particular dispatch exchange. The applicants further

submit that the Board's decision was not based on convincing reasons

and breached the applicants' right to negative freedom of association.

53. In these circumstances, the applicants' allegation is not only

that the County Administrative Board exercised its discretion to their

disadvantage but that the Board took a decision which was influenced

by irrelevant considerations and therefore contrary to Swedish law.

For these reasons the Commission finds that there existed a "serious"

and "genuine" dispute over the applicants' "rights" within the meaning

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

bb. Was the right "civil" in character?

54. 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-driver and that the dispute accordingly concerned

a "civil right".

55. In the present case, the dispute concerns the grant of a

reserve taxi licence and not an ordinary taxi licence as in the Pudas

case. The Commission finds however that it is similarly connected

with the applicants' 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.

56. Consequently, the Commission finds that the dispute concerns

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

applicable.

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

57. The Commission has next examined whether the applicants had

the possibility of submitting the dispute as to the reserve taxi

licences to a "tribunal" satisfying the conditions of Article 6 para.

1 (Art. 6-1) of the Convention.

58. 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 applicants were not entitled to take their

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

applicants.

59. It follows that the applicants did not have at their disposal

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

respect of the dispute which arose over the refusal of the reserve

taxi licences.

Conclusion

60. The Commission concludes, by 12 to 4 votes, that there has

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

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

Dissenting opinion of MM. Trechsel,

Weitzel, Schermers and Campinos

We regret that we are unable to share the Commission's opinion

that Article 6 para. 1 is violated in the present case.

We agree that under certain circumstances a claim for a

benefit may be considered to fall within the ambit of Article 6 para.

1 of the Convention. It depends however on the specific facts of each

case whether this is so.

In the present case the applicants claimed reserve licences

for the operation of their taxi service. Such reserve licences are

granted by the competent authority insofar as it deems them to be

"necessary and otherwise appropriate" (para. 32).

It is, in our view, obvious that the authorities dispose of a

large discretion in determining these issues and we find that the

applicants are in reality not complaining about the legality of the

decision but simply about the way in which the County Administrative

Board of the County of Malmöhus has exercised its discretion. A

complaint that an administrative authority has exercised its

discretion wrongly by not granting a benefit, in our opinion, falls

outside the ambit of Article 6 para. 1. In essence, we find no

difference in the present case as compared to the case of the Estate

of Mr. and Mrs. Skärby and Others v. Sweden, No. 12258/86, and, as in

the dissenting opinion by Mr. Nørgaard and others in that case, we do

not find a violation of Article 6 para. 1 in the present case.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

15.01.86 Introduction of the application

02.06.86 Registration of the application

Examination of admissibility

07.12.87 Commission's deliberations and

decision to invite the Government

to submit observations in writing

28.03.88 Government's observations

18.05.88 Applicants' reply

10.10.88 Commission's deliberations and

decision to declare the application

partially admissible and partially

inadmissible

Examination of the merits

12.01.89 Government's supplementary observations

30.01.89 Applicants' supplementary observations

11.03.89 Commission's consideration of state

of proceedings

11.04.89 Commission's deliberations on the

merits, final votes and adoption of

the Report

Menu

AXELSSON, GASPER, HJELM and NISSEN v. SWEDEN

AXELSSON, GASPER, HJELM and NISSEN v. SWEDEN

LEXI