Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11899/85

by Wasagrillen Knut Nylund AB

against Sweden

The European Commission of Human Rights sitting in private

on 13 July 1990, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 13 August 1984

by Wasagrillen Knut Nylund AB against Sweden and registered

on 9 December 1985 under file No. 11899/85;

Having regard to

- the reports provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the observations submitted by the respondent Govenment

on 7 June 990 and the observations submitted in reply by the applicant

on 7 June 1990;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the parties'

submissions, may be summarised as follows.

The applicant, Wasagrillen Knut Nylund Aktiebolag, is a

limited liability company whose headquarters is at Mora. The company

is run by Mr. Knut Nylund. Before the Commission the applicant is

represented by Mr. Göran Ravnsborg, university lecturer at Lund.

The applicant company has run a restaurant business since

1971. In 1975 it obtained a licence to serve wine and beer in respect

of one part of its business, and in 1977 it obtained a full licence to

serve alcoholic beverages.

On 22 February 1984 the County Administrative Board

(länsstyrelsen) of the County of Kopparberg revoked the licence to

serve alcoholic beverages in accordance with Section 64 of the Act on

Trading in Beverages (lagen om handel med drycker). In the decision

reference was made to information from the tax department of the

County Administrative Board concerning the period from May 1981 to

April 1982. According to the County Administrative Board there had

been deficiencies in the book-keeping of the company with regard to

the sale of beer.

The applicant company later asked for a new licence to serve

alcoholic beverages. In a decision of 21 May 1984 the County

Administrative Board refused to grant a licence stating that it did

not consider that the company fulfilled the requirement of suitability

in Section 40 of the Act on Trading in Beverages in view of the short

time which had elapsed since its previous decision and the serious

nature of the facts which had formed the basis of the revocation.

The applicant company appealed against the above two decisions

to the National Board of Health and Social Welfare (socialstyrelsen)

which rejected the appeals in a decision of 28 June 1984. This

decision was not subject to appeal.

Mr. Nylund was subsequently prosecuted for having committed

the offence of obstruction of tax control. He was however acquitted

by the District Court (tingsrätten) of Mora on 3 September 1984, a

judgment which was confirmed by the Svea Court of Appeal (Svea

hovrätt) on 8 November 1984.

On 16 November 1984 the County Administrative Board rejected a

further request from the applicant company for a licence to serve

alcoholic beverages. The applicant company appealed against this

decision to the National Board of Health and Social Welfare, which in

a decision of 12 December 1984 granted the appeal and quashed the

decision of the County Administrative Board.

On 14 December 1984 the applicant company was granted a new

licence to serve alcoholic beverages.

COMPLAINTS

The applicant company alleges violations of Article 1 of

Protocol No. 1 and of Articles 6 and 13 of the Convention.

It is submitted that the withdrawal of the licence to serve

alcoholic beverages from 22 February to 12 December 1984 caused a loss

of about one million SEK. The applicant company alleges that the

Swedish system is purely "bureaucratic" without any possibility of

having the withdrawal of the licence examined by a court. The company

further submits that the withdrawal of the licence was unfounded,

since the deficiencies in the sale of beer were merely due to a change

in the size of tankards from 58 to 50 cl.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 August 1984 and

registered on 9 December 1985.

On 13 October 1986 the Commission decided to communicate the

application to the respondent Government without asking for

observations, and to adjourn the further examination of the case

pending the outcome of Application no. 10873/84, Tre Traktörer

Aktiebolag v. Sweden.

On 7 July 1989 the European Court of Human Rights delivered

judgment in the Tre Traktörer Aktiebolag case (Eur. Court H.R., Tre

Traktörer Aktiebolag judgment of 7 July 1989, Series A no. 159).

On 4 October 1989, the Commission declared inadmissible the

applicant's complaints under Article 1 of Protocol No. 1 to the

Convention. It adjourned consideration of the complaints under

Articles 6 and 13 of the Convention and invited the parties to submit

observations on the Article 6 complaint in the light of the Court's

judgment in the case of Tre Traktörer Aktiebolag.

On 19 December 1989 the Government's observations were

received. The applicant's observations were submitted on 7 June

1990.THE LAW

The applicant company complains of a violation of Article 6

(Art. 6) of the Convention in that it did not have access to court

with regard to the withdrawal of its licence to serve alcoholic

beverages. The company also invokes Article 13 (Art. 13) of the

Convention.

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

follows in the first sentence:

"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."

The issues which arise are whether the decision of the

National Board of Health and Social Welfare dated 28 June 1984

concerned the applicant company's "civil rights and obligations"

within the meaning of the above provision and, if so, whether the

applicant company had available to it a procedure satisfying this

provision for the determination of any dispute arising over the

withdrawal of the licence to sell alcoholic beverages.

The Commission recalls that similar issues arose in the case

of Tre Traktörer Aktiebolag (Eur. Court H.R., Tre Traktörer

Aktiebolag judgment of 7 July 1989, Series A no. 159) where the Court

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

that the applicant company had no possibility of having the revocation

of its licence to serve alcoholic beverages on its premises reviewed

by a Court. The Commission further notes that the respondent

Government have waived objections to admissibility in this case.

In these circumstances, the Commission considers that the

applicant's complaints raise questions of fact and law which require

an examination on the merits. The Commission also finds that the

applicant's complaints under Article 13 (Art. 13) arise from the same

factual basis. The complaints cannot therefore be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, but must be declared

admissible, no other ground for declaring them inadmissible having

been established.

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits,

the remainder of the application.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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NYLUND AB v. SWEDEN

NYLUND AB v. SWEDEN