Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18436/91

by M. and M.D.

against Sweden

The European Commission of Human Rights sitting in private on

31 March 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

M. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 30 April 1991 by

M. and M.D. against Sweden and registered on 2 July 1991 under file No.

18436/91;

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 first applicant is a Swedish citizen, born in 1955. The

second applicant, her husband, is a Swedish and Bulgarian citizen, born

in 1938. They reside at Semmering, Austria.

The facts as presented by the applicants may be summarised as

follows.

The applicants have two children, Johanna, born in 1975, and

Alexander, born in 1977, who were pupils in the Swedish schools in

Geneva and subsequently in Vienna. The applicants applied to the

Swedish National School Board (Skolöverstyrelsen) for a state subsidy

to their children's school education on the basis of Section 29 of the

1978 Ordinance on State Subsidies to Swedish School Education Abroad.

(förordningen om statsbidrag till svensk undervisning i utlandet).

According to this provision, a pupil in a Swedish school abroad or a

pupil benefiting abroad from teaching by correspondence is eligible for

a subsidy if, inter alia, at least one of the parents is a Swedish

citizen and at least one of the parents resides abroad as employed by

or as director of a Swedish enterprise, i.e. an enterprise which is a

Swedish legal person. The applicants claimed that they resided abroad

because of their enterprise. In this respect they have referred to a

certificate of registration of 6 February 1975, showing that "Martin

Denev's Research Institute" has been entered into the register of the

County Administrative Board of Stockholm County (Länsstyrelsen i

Stockholms län).

By decision of 2 February 1990, the National School Board decided

not to grant the request, which in its decision was indicated as

relating to "cost-free correspondence materials for Alexander and

Johanna", the reason being that the eligibility criteria in Section 29

of the 1978 Ordinance were considered not to be satisfied.

The applicants appealed to the Supreme Administrative Court

(Regeringsrätten). In its decision of 31 October 1990 the Supreme

Administrative Court stated that, according to Section 1 of the Act on

Judicial Review of Certain Administrative Decisions (lagen om

rättsprövning av vissa förvaltningsbeslut), it could only review the

decision of the National School Board if it concerned a matter dealt

with in Chapter 8 Section 2 or 3 of the Instrument of Government

(regeringsformen).

The Court noted that the right to cost-free correspondence

materials was not a matter covered by Chapter 8 Section 2 (which deals

with provisions regarding an individual's personal status and about the

personal and economic relations between individuals). As to Chapter 8

Section 3, the Supreme Administrative Court noted the following. The

Section concerns provisions about the relations between individuals and

the authorities in regard to obligations imposed on individuals or

otherwise regarding interferences with the personal or economic

conditions of individuals. It does not include such provisions about

the relations between individuals and the authorities as merely give

benefits to individuals or are of a neutral character. As provisions

which give benefits to individuals are to be considered those which

concern state subsidies to various activities. The Supreme

Administrative Court considered that the provisions regulating the

right to cost-free correspondence materials give benefits to

individuals and therefore fall outside Chapter 8 Section 3 of the

Instrument of Government.

The Supreme Administrative Court, accordingly, declared the

applicants' appeal inadmissible.

COMPLAINT

The applicants complain of violations of Article 6 para. 1 of the

Convention in that

(a) they were denied the right to an impartial tribunal to test their

right to state subsidies for their children;

(b) they were denied a fair examination of their right, as there was

no dialogue with them on why they did not satisfy the legal

requirements for state subsidies and as the decision of the

National School Board did not contain reasons or arguments.

THE LAW

The applicants complain of violations of Article 6 para. 1

(Art. 6-1) of the Convention in that they did not have access to an

impartial tribunal in regard to their request for state subsidies to

their children's school education and in that their request was not

examined in a fair manner by the National School Board, which rejected

their request without giving reasons or arguments.

Article 6 para. 1 (Art. 6-1) of the Convention provides, in its

relevant parts, as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The first question which arises is therefore whether the

rejection of the applicants' request for state subsidies determined

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

of the Convention.

In this regard, the Commission recalls that in the cases of

Feldbrugge and Deumeland the European Court of Human Rights was called

upon to examine whether the right to certain social benefits was to be

regarded as a civil right within the meaning of Article 6 para. 1

(Art. 6-1) (Eur. Court H.R., Feldbrugge judgment of 29 May 1986, Series

A no. 99, and Deumeland judgment of the same date, Series A no. 100).

In these judgments, the Court examined the features of public law and

those of private law which were inherent in the social security system

involved, and it reached its conclusion on the basis of a consideration

of whether the features of public law or of private law were

predominant.

In the present case, the Commission notes that the system of

state subsidies to school education abroad is predominantly, if not

exclusively, of a public law character. The system is in no way based

on specific contributions paid by the individuals concerned and bears

no resemblance to a system of private insurance. Consequently, the

Commission is of the opinion that the applicants' complaint does not

relate to a civil right within the meaning of Article 6 para. 1

(Art. 6-1) and that the application must therefore be rejected as being

incompatible ratione materiae with the provisions of the Convention

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

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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M. AND M.D. v. SWEDEN

M. AND M.D. v. SWEDEN

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