Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14060/88

by Claus GEBAUER

against Sweden

The European Commission of Human Rights sitting in private

on 7 January 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 May 1988

by Claus GEBAUER against Sweden and registered on 26 July 1988 under

file No. 14060/88;

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

Rules of Procedure of the Commission;

Having regard to the written observations submitted by the

Government on 24 January 1990 and by the applicant on 14 March 1990;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen born in 1937 and resident

at Ronneby. Before the Commission the applicant is represented by Mr.

Gustav Bergstedt and Mr. Nils Wahl, lawyers practising in Stockholm.

Until April 1988 the applicant owned a first-class hotel with

a restaurant and a night-club at Karlskrona. In this capacity he was,

since July 1985, the holder of a licence to serve alcoholic beverages

issued under the Act on the Sale of Beverages (lagen om handel med

drycker; hereinafter "the Act"). The licence was valid until further

notice.

In May 1987 the applicant decided to lease out the night-club

business to Fun-Fun i Karlskrona AB (hereinafter "FFAB"), a limited

liability company. Before agreeing on the terms of the lease the

applicant and representatives of FFAB on 4 June 1987 visited the

County Administrative Board (länsstyrelsen; hereinafter "the Board")

of the County of Blekinge to inquire whether a lease would cause any

problems with respect to the licence. The representative of the Board

answered in the negative.

The applicant's account of this meeting has not been confirmed

by the Government.

In June 1987 the applicant and FFAB signed a lease with

respect to the night-club business and the premises of the club.

Subsequently the Board summoned the applicant and a

representative of FFAB to a meeting on 23 October 1987, at which the

applicant was asked if the night-club was leased out to FFAB. He

answered in the affirmative and referred to his previous meeting with

the representative of the Board, who then stated that she had never

given her approval to a lease. On the contrary, she had explicitly

stated that the applicant could not under any circumstances lease the

night-club to FFAB.

At a meeting on 26 October 1987 the representative of the

Board told the applicant that the only thing he could do to retain his

licence was to terminate the agreement and reemploy all his former

personnel. At a meeting on 28 October 1987 the question of the

purchaser of the alcoholic beverages was raised by the representative

of the Board. The representative of FFAB then stated that she had

been buying the beverages in the name of this company.

Having been given the opportunity to submit his opinion, the

applicant on 9 November 1987 informed the Board that he and FFAB

immediately after the last meeting with the Board had agreed to

terminate their previous agreements, in order to comply with the orders

of the Board.

On 12 November 1987 the Board, on the basis of Section 64 of

the Act, decided to withdraw the licence to serve alcoholic beverages

in the night-club for the period from 18 November to 16 December 1987.

The Board stated inter alia that the applicant's company had, in

several respects, violated the provisions of the Act and the Ordinance

on the Sale of Beverages (förordning om handel med drycker); that it

had shown a manifest nonchalance in respect of existing regulations;

that it had not been proved that the lease had been terminated; and

that an admonition would not be a sufficient sanction.

The applicant's appeal to the National Board of Health and

Social Welfare (socialstyrelsen) was rejected on 26 November 1987.

This decision was not subject to appeal.

The night-club was closed down on 18 November 1987 and

reopened on 16 December 1987.

COMPLAINT

The applicant complains that he could not have the withdrawal

of his licence to serve alcoholic beverages reviewed by a court. He

alleges a violation of Article 6 para. 1 of the Convention.

The applicant also complained that the effects of the

withdrawal of the licence resulted in a loss of inter alia income and

goodwill amounting to 5.3 million SEK. He alleged a violation of

Article 1 of Protocol No. 1 to the Convention. Subsequently this

complaint was withdrawn.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 May 1988 and registered

on 26 July 1988.

On 7 July 1989 the European Court of Human Rights delivered

judgment in the Tre Traktörer AB case (Series A No. 159).

On 8 November 1989 the Commission decided that notice of the

application should be given to the respondent Government and that the

parties should be invited to submit written observations on the

admissibility and merits of the application, limited to the issue

under Article 6 of the Convention.

The Government's observations were submitted on 24 January

1990. The applicant's observations in reply were submitted on

14 March 1990.

THE LAW

1. The applicant complains that he could not have the withdrawal

of his licence to serve alcoholic beverages reviewed by a court. He

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

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

reads, insofar as it is relevant:

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

everyone is entitled to a ... hearing ... by [a] ... tribunal..."

The Commission considers that the issues to be decided are

whether the withdrawal of the applicant's licence to serve alcoholic

beverages was decisive for his "civil rights and obligations" and, if

so, whether a genuine dispute of a serious nature arose between the

applicant and the authorities in relation to this decision. In the

affirmative, it would have to be determined whether the applicant had

at his disposal a procedure satisfying the conditions of Article 6

para. 1 (Art. 6-1) of the Convention with regard to that dispute.

The Government waive objections as to the admissibility of this

complaint and admit a violation of Article 6 para. 1 (Art. 6-1) of

the Convention.

The Commission finds that this complaint is not manifestly

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

Convention. As no other ground for declaring it inadmissible has been

established, this complaint is admissible.

2. The applicant originally also complained that the withdrawal

of the licence violated Article 1 of Protocol No. 1 (P1-1) to the

Convention. However, in view of the Court's judgment in the Tre

Traktörer AB case he has subsequently withdrawn this complaint. The

Commission finds no reason to examine this complaint.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of

the case, the applicant's complaint that he could not have

the withdrawal of his licence to serve alcoholic beverages

reviewed by a court;

DECIDES TO STRIKE OFF ITS LIST OF CASES the remainder

of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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GEBAUER v. SWEDEN

GEBAUER v. SWEDEN

LEXI