AS TO THE ADMISSIBILITY OF

                      Application No. 26265/95

                      by Wilhelm and subsequently Gunvor GÜNTHER

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 1 December 1994

by Wilhelm and subsequently Gunvor Günther against Sweden and

registered on 23 January 1995 under file No. 26265/95;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant was a Swedish citizen, born in 1919 and resident

at Munkedal. He was the owner of "Brålands Laxfiske", an establishment

selling licences for angling of salmon and offering other services for

anglers. He had the full financial responsibility for the business

(enskild firma). The applicant died in 1996. In November 1996 the

Commission was informed that his widow, Mrs. Gunvor Günther, born in

1920, wished to take over the application.

      The facts of the case, as submitted by the applicant, may be

summarised as follows.

      The applicant was the owner of real property, Bråland 3:18, this

plot having been split from a larger plot, Bråland 3:1, on account of

its suitability for recreational and notably angling purposes. Bråland

3:18 has an almost 2 km long bank stretching along the Örekil river

(Örekilsälven). The fishing rights along that bank were initially

somewhat unclear and subject to certain disputes. After extensive

research and negotiations the applicant, in the 1960's, obtained

recognition of his exclusive fishing rights and began selling licences

for angling of salmon in the area.

      In 1986 the municipalities of Munkedal and Dals Ed requested the

County Administrative Board of Göteborg and Bohus län (länsstyrelsen

i Göteborgs och Bohus län) to create a fishery conservation area

(fiskevårdsområde) in the Örekil river, its tributaries and Lake

Kärnsjön. The area was to include, inter alia, Bråland 3:18. In 1988

the Board created two such areas and began planning a third area which

would have included the area where the applicant had fishing rights.

He then requested that it be excluded from the conservation area or,

alternatively, that the statutes of the fishery conservation

association (fiskevårdsområdesförening) - which by law was to be

established for the purposes of administering the area - should

guarantee his exclusive right to sell fishing licences for angling in

that area.

      On 31 August 1990 the County Administrative Board created the

third fishery area. It recalled that under the 1981 Act on Fishery

Conservation Areas (1981:533) and its preparatory works such an area

could not be established, if the holders of the fishing rights more

commonly objected thereto and provided they had significant reasons

therefor. Particular regard was to be had to the opinion of those

owners who made use of the fishing for their livelihood.

      The Board noted that the Örekil river was unique both for

preserving the fish stock and for angling. A conservation area was

necessary so as to further coordinate the fishing and the preservation

of the fish stock and serve the joint interests of the owners of the

fishing rights. The Board noted, inter alia, that Bråland 3:18

stretched along almost 2 kilometres of the river; that the property

boundary followed the middle of the river bed; and that it had been

questioned whether an angler on Bråland 3:18 was entitled to fish also

in the other half of the river bed. The overall circumstances warranted

the inclusion of the applicant's area in the conservation area.

      The Board found that the aims which the creation of a

conservation area sought to pursue would be seriously jeopardised if

an owner of fishing rights were to be granted an exclusive right to

sell licences for angling from his area. It was true that the applicant

had been receiving a certain income from licensing angling from his

area. He had not, however, shown how significant this income had been

for his livelihood.

      Adopting the statutes of the conservation area, the Board finally

noted that the applicant could veto any intended sale of fishing

licences for angling in his fishing waters. (According to section 8,

subsection 2 of the 1981 Act, a fishery conservation association cannot

give up a person's fishing rights without his consent, unless those

rights have no importance for his livelihood.)

      The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Gothenburg, arguing that the decision was in

violation of chapter 2, section 18 of the Instrument of Government

(Regeringsformen) and Article 1 of Protocol No. 1 to the Convention.

According to the Instrument of Government, every citizen whose property

was taken away either through expropriation or by virtue of any other

similar interference was entitled to compensation for his loss under

terms laid down by law. He submitted that the 1986 taxation value of

Bråland 3:18 had been 841.000 SEK, of which 450.000 had corresponded

to the value of the angling of salmon. In 1986 his turnover from the

sale of licences for angling had been some 60.000 SEK. Since then it

had increased to some 100.000 SEK. The taxation value of the angling

was therefore expected to rise up to 1.000.000 SEK. For 25 years he had

invested considerable sums in order to provide the possibility of

angling from his property. In the whole river his fishing water was the

most attractive one for anglers both in terms of its accessibility and

scenery. The principal part of the angling in the river had therefore

always taken place from his property.

      The applicant furthermore argued that his right to veto any sale

of licences for angling from his property was de facto meaningless, as

such a veto would not make him entitled to sell licences on his own.

Moreover, the fishing water off Bråland 3:18 could without any

difficulty be preserved and administered separately from the remaining

waters within the conservation area. Should the County Administrative

Board's decision be upheld, he would lose a significant part of his

livelihood without being entitled to any compensation.

      The applicant also adduced an opinion by Professor Gunnar

Bramstång, an expert in public law. Professor Bramstång concluded,

inter alia, that the applicant was entitled to compensation for the

interference with his property rights. This could be done, for

instance, by guaranteeing to the applicant a share of the conservation

association's total income which would correspond to his previous

income from the sale of licences and his other related activities.

Professor Bramstång also questioned whether there was a sufficient

public interest in creating a conservation area under the terms

approved by the County Administrative Board, given that the public

already had significant access to the fishing waters in question and

the measures so far taken for safeguarding the fish therein had met

with no real criticism. He recalled that the creation of a conservation

area should primarily pursue the joint interests of the owners of the

fishing waters.

      The National Board of Fisheries (Fiskeriverket) objected to the

applicant's appeal, recalling that it had designated the Örekil river

as one of the most important angling waters. The National Environment

Protection Board (Naturvårdsverket) had designated it as a "nationally

interesting" river. Out of public means some 20.000.000 SEK had been

invested in safeguarding the fish stock. The County Administrative

Board recalled that three further fishery areas affecting the Örekil

river had been created in the neighbouring Älvsborg County. A plan for

the regulation of the fishery was being envisaged for the whole river.

      In his rejoinder the applicant recalled a significant number of

measures which he had initiated as from the late 1950's in order to

improve the conditions for the fish in the river. His activities and

investment had by no means endangered the fish stock, but on the

contrary significantly contributed to the successful return of salmon

into the river.

      On 30 December 1992 the Administrative Court of Appeal rejected

the applicant's appeal after having held an oral hearing and an

inspection. The Court essentially agreed with the reasoning in the

County Administrative Board's decision. It noted, inter alia, that the

fishing rights attached to the applicant's property concerned half of

the river on a stretch of a little less than two kilometres. The

Court's inspection had revealed that along this stretch the river was

not particularly wide. It would therefore seem more or less impossible

to fish salmon and salmon-trout from the applicant's property without

violating the fishing rights attached to the properties on the opposite

side of the river. It could therefore seriously be doubted whether it

was possible for the applicant to license fishing from his property

without the consent of the holders of the last-mentioned fishing

rights. The Administrative Court of Appeal did not pronounce itself in

regard to the compensation issue, nor on the Convention issue or the

opinion submitted by Professor Bramstång.

      In his request for leave to appeal to the Supreme Administrative

Court (Regeringsrätten) the applicant stressed, inter alia, that no

balancing of interests had been carried out by the Administrative Court

of Appeal. Among the holders of fishing rights within the conservation

area he was the only one to have made significant investments so as to

safeguard the fish stock and improve the fishery; the only one to have

a solid clientele of anglers and the only one to be dependent on the

sale of licences for his livelihood

      On 9 June 1994 the Supreme Administrative Court refused him leave

to appeal.

      Under section 6 of the 1981 Act the views of those who are most

affected by the creation of a fishery conservation area shall be given

priority, unless the creation thereof is particularly important.

COMPLAINTS

      The applicant complained that the establishment of the fishery

conservation area and related association amounted to a de facto

expropriation of his possessions. His loss of the right to sell

licences for angling had deprived him of his livelihood. The fishery

conservation association's sale of fishing licences for the total

waters of the fishery area would have entitled him to a yield based on

his share of the waters, i.e. some 10 %. This was supposed to

correspond to a loss of at least 80 % of his income from his licensing

of his own fishing water. The deprivation of this licensing-right had

also considerably reduced the value of his property Bråland 3:18. He

had not been entitled to any compensation. The conservation area had

not been created in order to regulate fishery but so as to enable other

owners of fishing rights to make a larger profit at the applicant's

expense.

      The applicant invoked Article 1 of Protocol No. 1 in conjunction

with Articles 17 and 18 of the Convention.

THE LAW

1.    The Commission recalls that close relatives of a deceased

applicant are in principle entitled to take his or her place in the

proceedings before the Convention organs (see, e.g., Eur. Court HR,

Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287,

pp. 4-15, paras. 31-32 with further references; No. 25758/94,

Dec. 7.3.96). In the circumstances of the present case the Commission

therefore accepts that Mr. Günther's wife may pursue the application

on his behalf.

2.    The applicant complained that his loss of the right to sell

licences for fishing in his own waters deprived him of his livelihood

and considerably reduced the value of his property. His property had

therefore de facto been expropriated. He principally invoked Article 1

of Protocol No. 1 (P1-1) to the Convention which reads as follows:

      "Every natural or legal person is entitled to the peaceful

      enjoyment of his possessions. No one shall be deprived of

      his possessions except in the public interest and subject

      to the conditions provided for by law and by the general

      principles of international law.

      The preceding provisions shall not, however, in any way

      impair the right of a State to enforce such laws as it

      deems necessary to control the use of property in

      accordance with the general interest or to secure the

      payment of taxes or other contributions or penalties."

      The Commission recalls that Article 1 of Protocol No. 1 (P1-1)

comprises three distinct rules. The first rule, set out in the first

sentence of the first paragraph, is of a general nature and enunciates

the principle of peaceful enjoyment of property. The second rule,

contained in the second sentence of the same paragraph, covers

deprivation of possessions and makes it subject to certain conditions.

The third rule, stated in the second paragraph, recognises that

Contracting States are entitled, amongst other things, to control the

use of property in accordance with the general interest. The three

rules are not "distinct" in the sense of being unconnected: the second

and third rules are concerned with particular instances of interference

with the right to peaceful enjoyment of property and should therefore

be construed in the light of the general principle enunciated in the

first rule (see, e.g., Eur. Court HR, Fredin v. Sweden judgment of

18 February 1991, Series A no. 192, p. 14, para. 41).

      Finally, the proceedings at issue must afford the individual a

reasonable opportunity of putting his or her case to the responsible

authorities for the purpose of effectively challenging the measures

interfering with his or her rights under Article 1 of Protocol No. 1

(P1-1). In ascertaining whether this condition has been satisfied a

comprehensive view must be taken of the applicable procedures (see,

e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October

1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment

of 22 September 1994, Series A no. 296-A, p. 21, para. 49).

"Deprivation" of property within the meaning of Article 1 of Protocol

No. 1 (P1-1) is not limited to cases where property is formally

expropriated, i.e. where there is a transfer of the title to the

property. "Deprivation" may also exist where the measure complained of

affects the substance of the property to such a degree that there has

been a de facto expropriation (see, e.g., Eur. Court HR, Sporrong and

Lönnroth v. Sweden judgment of 23 September 1982, Series A No. 52,

pp. 24-25, para. 63).

      The Commission has held that the impossibility of excluding

others from fishing with a hand-held tackle in private waters did not

have such severe consequences for their owner that it amounted to a de

facto deprivation. Although the owner was not compensated for the

control of the use of his property, the Commission accepted that this

interference was proportionate, since his situation resulted from a

legislative measure and he had not previously derived any income from

hand-held tackle fishing. If he had derived such income from the

fishing, he would also have had a remedy for seeking compensation (see

No. 11763/85, Dec. 9.3.89, D.R. 60 pp. 128, 140-143).

      The Commission notes that the applicant lost his right to license

fishing in his waters, though having been recognised by the authorities

as being dependent on the income from that licensing for his

livelihood. He was not formally deprived of his property nor of his

right to fish within his own part of the river. However, his right to

licence fishing was one facet of his property rights and in his

particular case the related economic interests arguably constituted -

together with his clientele - "possessions" for the purposes of

Article 1 of the Protocol No. 1 (P1-1) (cf., Eur. Court HR, Van Marle

and Others v. the Netherlands judgment of 26 June 1986, Series A no.

101, p. 13, paras. 41-42).

      The Commission observes, however, that as a member of the fishery

conservation association the applicant became entitled to receive a

yield on the association's sale of fishing-licences which is

proportionate to his respective share of the overall conservation area.

The interference in question did not restrict any of the other rights

stemming from his ownership of the property. Thus the interference at

issue did not deprive him of all meaningful use of his property

(see Eur. Court HR, Tre Traktörer AB v. Sweden judgment of 7 July 1989,

Series A No. 159, pp. 21-22, paras. 52-53; the above-mentioned Fredin

judgment, p. 15, paras. 45-47; Pine Valley Developments Ltd and Others

v. Ireland judgment of 29 November 1991, Series A No. 222, p. 25,

para. 56; a contrario, Papamichalopoulos and Others v. Greece judgment

of 24 June 1993, Series A No. 260-B, p. 70, para. 45).

      In these circumstances the Commission cannot find that the

applicant's loss of his right to license fishing within his own part

of the river constituted a de facto deprivation of his "possessions"

within the meaning of Article 1 of Protocol No. 1 (P1-1). The

interference is rather to be regarded as a control of the use of his

property within the meaning of the second paragraph of that provision.

      The Commission recalls that its power to review compliance with

domestic law is limited (see, e.g., the above-mentioned Fredin

judgment, pp. 16-17, para. 50). It cannot find any indication that the

interference with the applicant's property rights was not in accordance

with the law.

      The notion of the "general interest" leaves a wide margin of

appreciation to the national authorities. The Convention organs will

therefore respect the authorities' judgment as to what is a "general

interest" unless that judgment is manifestly without reasonable

foundation (see Eur. Court HR, James and Others v. the United Kingdom

judgment of 21 February 1986, Series A No. 98, p. 32, para. 46). For

instance, the protection of the environment is an increasingly

important consideration (see the above-mentioned Fredin judgment,

p. 16, para. 48).

       The Commission finds no indication that the applicant's

licensing of fishing in his own section of the river had jeopardised

the fish stock in what eventually became the fishery conservation area.

On the contrary, he seems to have contributed to the improvement of the

fishery. The Commission can nevertheless accept that the creation of

the conservation area, including also the applicant's property, pursued

a legitimate aim in the general interest as it sought to coordinate the

fishery and the selling of fishing licences.

      When assessing the proportionality of the interference, a fair

balance must be struck between the demands of the general interest of

the community and the requirements of the protection of the

individual's fundamental rights (see, e.g., the above-mentioned Fredin

judgment, pp. 17 et seq., paras. 51 et seq.). The requisite balance

will not be found if the person has to bear an individual and excessive

burden (see, e.g., the above-mentioned James and Others judgment,

p. 34, para. 50). The Commission would not exclude that although a

right to compensation is not inherent in the second paragraph of

Article 1 (Art. 1-2), such compensation could nevertheless be called

for in a case where the control of use has sufficiently severe economic

consequences for the property owner.

      The Commission notes that Swedish law would not have prevented

the adoption of statutes entitling the applicant to a proportionately

higher share of the yield on the income from the association's

licensing of fishing within the whole conservation area. Nor would it

have prevented guaranteeing him his continued right to license angling

from his own property. Such a measure could effectively have amounted

to "compensation" for the interference. However, the Commission accepts

that such a solution was rejected by the national authorities on

arguable grounds, a measure which must be considered to remain within

the respondent State's margin of appreciation (cf. Eur. Court HR,

Mellacher and Others v. Austria judgment of 19 December 1989, Series

A No. 169, p. 28, para. 53).

      It is true that, although having found it inappropriate to

exclude the applicant's property from the conservation area or to

guarantee his right to continue licensing the fishing within his area,

the national authorities did not pronounce themselves on his

entitlement to compensation. Their reference to his right to veto the

association's licensing of fishing within his fishing waters would not

appear to have answered his compensation claim as such a veto would not

have entitled him to license fishing in his own waters. However, in the

circumstances of the case the Commission cannot find it established

that the measure complained of placed an excessive burden on the

applicant.

      The Commission finally considers that the proceedings viewed as

a whole afforded the applicant a reasonable opportunity of putting his

case to the responsible authorities with a view to establishing a fair

balance between the conflicting interests at stake. Having regard to

its considerations above, the Commission is further satisfied that such

a balance was struck in his case. Accordingly, the interference with

his property rights was proportionate to the aim pursued.

      In these circumstances there is no appearance of any violation

of Article 1 of Protocol No. 1 (P1-1) or of Article 17 or 18

(Art. 17, 18) of the Convention.

      It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

  M.-T. SCHOEPFER                               G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber