Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11960/86

by Jon AXELSSON and Others

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

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

C.L. ROZAKIS

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 27 December 1986

by Jon AXELSSON and Others against Sweden and registered on 17 January

1986 under file No. 11960/86;

Having regard to

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

of the Commission;

- the observations submitted by the respondent Government on

21 December 1989 and the observations in reply submitted by the

applicants on 28 February 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case may be summarised as follows:

Particular circumstances of the case

The applicants are the following four taxi owners, all Swedish

citizens:

1. Mr. Jon Axelsson born in 1952 and resident of Malmö,

2. Mr. Roy Gasper born in 1940 and resident of Åkarp,

3. Mr. Lars-Erik Hjelm born in 1935 and resident of Malmö, and

4. Mr. Stig Nissen born in 1946 and resident of Vintrie.

Before the Commission the applicants are represented by

Mr. Göran Ravnsborg, a university lecturer at Lund.

The applicants have taxi permits for the Malmö (-Burlöv) taxi

zone. Since 1981 they have operated their own taxi company,

'Roystaxi'. Mr. Axelsson is also a member of MTEA, the Malmö Taxi

Economic Association (Malmö Taxi Ekonomisk förening).

The applicants obtained their taxi permits in the 1970s and

joined MTEA when it was the only taxi company in the Malmö (-Burlöv)

taxi zone. It ran the only taxi dispatch exchange in the area and

since a dispatch exchange provides about 70 % of a taxi business, it

was economically essential to join MTEA.

It was a term of the membership agreement with MTEA, as set

out at Section 32, that:

"Disputes between the association and the board, or a

member thereof, or a member of the association shall

be submitted to settlement according to the current

Swedish law on arbitration."

In due course, all the applicants, with the exception of

Mr. Axelsson, left MTEA, after they had been excluded from use of the

dispatch exchange for lengthy periods by MTEA. Mr. Axelsson was also

stopped by MTEA from using the dispatch exchange.

In 1982, the applicants instituted proceedings against MTEA

in the Malmö District Court (tingsrätt) for damages relating to the

period for which, while still members, they were prevented from using

the taxi dispatch exchange. The proceedings were instituted by the

first applicant on 2 June 1982 and he was joined by the second

applicant on 11 November 1982 and the third and fourth applicants on

13 November 1982. MTEA raised the defence that the Court could not

deal with the actions because they were governed by the arbitration

clause. The District Court rejected this argument on 16 September

1983 after having held a hearing.

MTEA appealed to the Court of Appeal (hovrätten) of Skåne and

Blekinge which, without a public hearing, allowed MTEA's appeal and

declared the arbitration clause applicable in a decision of

16 July 1984. The applicants appealed on 8 August 1984 to the Supreme

Court (högsta domstolen).

The applicants also claimed damages from the Government on

the basis that the decision of the Court of Appeal interfered with

their rights under Article 6 of the Convention. The Government

rejected this claim on 29 November 1984.

The Supreme Court refused the applicants leave to appeal

on 18 December 1985.

Relevant domestic law and practice

Arbitration legislation

Swedish arbitration law appears in the 1929 Arbitration Act

(lagen om skiljemän) and the 1929 Act Concerning Foreign Arbitration

Agreements and Awards (lagen om utländska skiljeavtal och skiljedomar).

Section 1 of the 1929 Arbitration Act provides, inter alia:

"Any question in the nature of a civil matter which may be

settled by agreement, as well as any question of compensation

for damage resulting from a criminal offence may, when a

dispute has arisen with regard thereto, be referred by

agreement between the parties to the decision of one or more

arbitrators. An arbitration agreement relating to any such

question may also have reference to future disputes arising

from a particular legal relationship specified in the

agreement."

Act on Economic Associations

According to Section 116 of the 1951 Act on Economic

Associations (lagen om ekonomiska föreningar), a provision in the

statutes of an association, which provides that disputes between the

association and, e.g., the board, a member of the board, or a member

of the association, shall be referred for settlement by one or more

arbitrators, shall have the same effect as an arbitration agreement

under the Arbitration Act.

Act on Contracts

Section 36 of the 1915 Act on Contracts (avtalslagen) provides

that a provision of a contract may be modified or set aside if the

provision is unreasonable, having regard to the contents of the

contract, the circumstances as they were at the time of the conclusion

of the contract, subsequent events and other circumstances. Special

account shall be taken of the need to protect a consumer or a

contracting party, considered as the weaker party to the contract.

Judicial procedure

Procedural hindrances

Provisions on procedural hindrances are laid down in Chapter

34 of the Code of Judicial Procedure (rättegångsbalken).

According to Section 1 the court shall consider any hindrance

to the proceedings as soon as there are reasons to do so. In the

absence of a provision to the contrary, the court shall take notice of

the procedural hindrances on its own motion.

An agreement between the parties that the dispute in question

shall be dealt with by arbitrators constitutes a procedural hindrance

which means that the court has to decline jurisdiction and dismiss the

action. According to the case-law, this procedural hindrance is

optional, i.e. the court shall not take notice of it unless one of

the parties requests the dismissal of the case on the basis of the

arbitration agreement.

According to Section 2, any party who wishes to object to

the competence of the court, shall do so when he makes his first

appearance in the action or, if he is prevented from doing so by

circumstances which constitute a legally valid excuse, as soon as

possible after the excuse has ceased to exist. A party who fails to

object within the time prescribed, loses the right to raise the

objection. If a party has made a timely objection pursuant to Section

2, the court shall, in accordance with Section 3, make a separate

decision thereon as soon as possible.

The matter may be dealt with entirely in writing or in writing

combined with a preparatory hearing (Chapter 42 Section 13).

If the court declines jurisdiction owing to e.g. an

arbitration clause, the plaintiff may appeal against that decision.

Such an appeal shall be brought in the form of a so called limited

appeal to the Court of Appeal.

If the court has overruled an objection based upon an alleged

procedural hindrance, a party desiring to appeal must give a formal

notice of exception immediately if the order is pronounced at a

hearing and, otherwise, within a week of service of the decision upon

him. If a timely exception is given, the court shall, depending on

the circumstances, decide whether an appeal shall be lodged separately

or only in conjunction with an appeal against the judgment on the

merits of the case. Such a separate appeal shall also be brought in

the form of a limited appeal (Chapter 49 Section 3).

Limited appeal

The provisions on limited appeals are found in Chapter 52 of

the Code of Judicial Procedure.

If it is found that the adverse party should be given an

opportunity to respond to the limited appeal petition, the Court of

Appeal shall, according to Chapter 52 Section 7, serve the petition

and the documents annexed thereto upon the adverse party with a notice

directing him to file a written answer. Unless an opportunity to

respond has been given to the adverse party, the decision appealed

against may not be changed to his disadvantage.

When an answer is filed, the Court of Appeal may order a

further exchange of written submissions, if the Court finds this

necessary. The Court may issue detailed regulations as to the

exchange of submissions and specify the issues upon which the parties

shall make observations. However, a party may not be directed to file

more than one set of written submissions unless there are special

reasons therefor (Section 9).

Section 10 provides, inter alia, that:

"Where it is required for the purposes of the investigation

of a case that a party or other person be heard orally by

the Court of Appeal, the Court of Appeal shall decide on

such a hearing as it sees fit."

The provisions on limited appeals are applicable in respect of

appeals against court decisions rendered in the course of pending

proceedings, where such a separate appeal is allowed. These

provisions apply to criminal as well as to civil proceedings. They

are also applicable in respect of final decisions taken by the lower

court, e.g. when a district court decides to dismiss the case, owing

to an arbitration clause or the plaintiff's withdrawal of the action.

The limited appeal procedure is simpler than the procedure for

regular appeals, the reason being, inter alia, that procedural matters

are deemed to be less complicated than a determination on the merits

of the case.

As a rule, the limited appeal procedure is entirely in

writing. The Court of Appeal determines the matter on the basis of

the case file, which includes the case file of the lower court, the

petition from the appellant and, frequently, written observations from

the adverse party.

An oral hearing may be held but such hearings are rare. They

also differ from main hearings in regular appeal proceedings, since

the case is not comprehensively dealt with at the hearing, and what

has been said at the hearing does not form the exclusive basis of the

decision to be taken by the Court of Appeal. If, for instance, the

reason why the Court of Appeal directs a hearing is that an oral

hearing of a witness is deemed necessary, the parties will not

necessarily be given an opportunity to plead the case orally as well.

The Court of Appeal may give the parties an opportunity to question

the witness and to submit their final pleadings in writing. In this

procedure, the Court of Appeal is always called upon also to take into

consideration the information found in the case file when determining

the case.

COMPLAINTS

The applicants complain under Article 6 of the Convention.

Their complaint is two-fold. On the one hand they complain about the

contents of the courts' decisions. They submit that under Swedish

law, having regard to the terms of MTEA's regulations and in

particular the terms of the section relating to arbitration, the

arbitration clause is not applicable and that they have been deprived

of the opportunity to have a civil right determined by a court of law.

On the other hand they complain that the legal procedure before the

Court of Appeal and the Supreme Court did not comply with the

requirements of Article 6 of the Convention. They point out in

particular that no public hearing was held before the Court of Appeal

or the Supreme Court. They also complain of the length of time taken

in reaching the decisions.

The applicants also complain about the decision of the

Government of 29 November 1984, when their claim for compensation from

the State was rejected. They claim that this is a further violation

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 December 1984 and

registered on 17 January 1986. The Commission decided on 5 October

1987 to bring the application to the notice of the respondent

Government and invite them to submit observations on its admissibility

and merits.

The Government's observations were submitted on 21 December

1987 and the applicants' observations in reply were submitted on

29 February 1988.

On 8 December 1988, the Commission decided to adjourn the

examination of the application pending the outcome of the case of

Håkansson and Sturesson before the European Court. On 21 February

1990, the Court gave its judgment in that case (Eur. Court H.R.,

Håkansson and Sturesson judgment, Series A No. 171). By letter dated

14 March 1990, the applicant made further observations on the case in

the light of the Court's judgment.

THE LAW

1. The applicants complain of being denied access to court in

respect of their dispute with MTEA. They invoke Article 6 para. 1

(Art. 6-1) of the Convention, which in its first sentence provides:

"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 case-law of the Commission and the Court establishes that

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

effective access to court in the determination of their "civil rights

and obligations" (see e.g. Eur. Court H.R., Golder judgment of 21

February 1975, Series A No. 18, p. 18, para. 36 and Airey judgment of

9 October 1979, Series A No. 32, pp. 14-16, para. 26).

The Commission considers that the dispute between MTEA and the

applicants, which related to a private contractual relationship of

importance to the applicants' business activities, concerned "civil

rights and obligations" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

As stated by the Court in the Golder case (loc. cit., pp. 18-20,

paras. 37-40; see also Eur. Court H.R., Ashingdane judgment of

28 May 1985, Series A No. 93, pp. 23-26, paras. 53-59) the right of access

to the courts is not absolute. In the majority of the Contracting

States, the right of access to courts is restricted or subject to

special conditions in respect of minors, vexatious litigants, persons

of unsound mind, persons declared bankrupts and, as in this case,

persons who are bound by an arbitration agreement. Such regulations

are not in principle contrary to Article 6 (Art. 6) of the Convention,

where the aim pursued is legitimate and the means employed to achieve

the aim is proportionate.

The Commission notes that insofar as arbitration is based on

agreements between the parties to the dispute, it is a natural

consequence of their right to regulate their mutual relations as they

see fit. From a more general perspective, arbitration procedures can

also be said to pursue the legitimate aim of encouraging non-judicial

settlements and of relieving the courts of an excessive burden of

cases. The Commission finds no indication that the dispute between

the applicants and MTEA involved any issues of public interest

which would have made an arbitration inappropriate or unreasonable.

The Commission recalls that in the present case the Swedish

courts found that the applicants were bound by the arbitration clause,

which was part of the agreement which they had entered into with MTEA.

In these circumstances, the Commission finds that the applicants must

be regarded as having themselves renounced a court procedure.

The Commission consequently finds that in this respect there

has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this complaint is manifestly ill-founded

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

2. The applicants have complained of being deprived of a public

hearing before the Court of Appeal contrary to Article 6 para. 1

(Art. 6-1) of the Convention in the proceedings regarding the

applicability of the arbitration clause. The Commission does not find

it necessary to determine whether these proceedings concerned the

determination of a civil right, since in any case the complaint is

inadmissible on another ground.

The Court has emphasised that the public character of court

hearings constitutes a fundamental principle enshrined in Article 6

para. 1 (Art. 6-1). It has also stated that neither the letter nor

spirit of the provision prevents a person from waiving of his own free

will, either tacitly or expressly, the entitlement to a public

hearing. A waiver must, however, be made in an unequivocal manner and

not run counter to any important public interest (see e.g. Eur.

Court H.R., HÃ¥kansson and Sturesson judgment of 21 February 1990,

Series A No. 171, para. 66).

The Commission notes that in the present case the Swedish law

expressly provided for the possibility of holding public hearings.

The Code of Judicial Procedure gave the Court of Appeal the power to

hold public hearings where this was required for the purpose of the

investigation. Having regard to the facts of the present case and the

possibility for a court to hold a hearing under Chapter 52 Section 10 of

the Code of Judicial Procedure, the Commission considers that the

applicants could have been expected to ask for a hearing if they had

found it important that one be held. The Commission refers to the

Court's judgment in the HÃ¥kansson and Sturesson case where a similar

complaint was made (above-mentioned HÃ¥kansson and Sturesson judgment,

paras. 67-68). By not requesting a hearing in the present case, the

Commission finds that the applicants must be considered to have

unequivocally waived their right under Article 6 (Art. 6) of the

Convention to a public hearing before the Court of Appeal. The

Commission furthermore finds no indication that the litigation

involved any issues of public interest which could have rendered a

public hearing necessary irrespective of the applicants' request.

Consequently the Commission concludes that in this respect

there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

It follows that this complaint is manifestly ill-founded

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

3. The applicants have further complained in the context of

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

courts themselves, of the delay in reaching the decisions and of the

decision of the Government rejecting their claim for compensation.

With regard to the judicial decisions of which the

applicants complain, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

The Commission finds no indication that the decisions of the

courts were in any way arbitrary or unreasonable or contrary to

Swedish law. The mere fact that the courts reached a decision with

which the applicants strongly disagreed is not sufficient to

substantiate a complaint of not receiving a fair hearing contrary to

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

As regards the applicants' complaint of delay, the Commission

recalls that the applicants instituted the proceedings in June 1982 at

the earliest and that the District Court gave its decision on

16 September 1983. The Court of Appeal allowed MTEA's appeal on

16 July 1984 and the Supreme Court dismissed the applicants' appeal

on 18 December 1985. The proceedings therefore lasted approximately

three and a half years. In the circumstances of the present case, the

Commission finds that the duration of the proceedings was not

unreasonable.

As regards the applicants remaining complaints, the Commission

finds, on examination of the application, that they disclose no

appearance of a violation of the Convention.

It follows the this part of 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Acting President

the Commission of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

Menu

AXELSSON AND OTHERS v. SWEDEN

AXELSSON AND OTHERS v. SWEDEN

LEXI