Lexploria

PARTIAL

AS TOT THE ADMISSIBILITY

Application No. 11899/85

by Wasagrillen Knut NYLUND AB

against Sweden

The European Commission of Human Rights sitting in private

on 4 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 Aktiebolag against Sweden and registered

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

Having regard to

- the Commission's decision of 13 October 1986 to bring the

application to the notice of the respondent Government but

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;

- the judgment of the European Court of Human Rights delivered

in the Tre Traktörer Aktiebolag case on 7 July 1989;

- the report provided for in Rule of 40 of the Commission's

Rules of Procedure;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the applicant's

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 12 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.

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).

THE LAW

1. The applicant company complains that the withdrawal of its

licence to serve alcoholic beverages violated Article 1 of Protocol

No. 1 (P1-1) to the Convention which provides:

"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 considers that the withdrawal of the licence

was an interference with the company's right to the peaceful enjoyment

of possessions guaranteed by Article 1 of Protocol No. 1 (P1-1). It

constituted a measure of control of the use of property, which falls

to be examined under the second paragraph of Article 1 of Protocol

No. 1 (P1-1) (cf. Eur. Court H.R., Tre Traktörer Aktiebolag judgment

of 7 July 1989, Series A no. 159, para. 55).

The Commission is satisfied that the decisions complained of

were in conformity with Swedish law and that they were taken in order

"to control the use of property in accordance with the general

interest" (cf. the Tre Traktörer Aktiebolag judgment, loc. cit.,

paras. 56-58). It is furthermore required under Article 1 of Protocol

No. 1 (P1-1) that there was a reasonable relationship between the means

employed and the aim sought to be realised or, in other words, that

there was a fair balance between the demands of the general interest

and the interest of the individual. In determining this issue the

State enjoys a wide margin of appreciation with regard both to

choosing the means of enforcement and to ascertaining whether the

consequences of enforcement are justified in the general interest for

the purpose of achieving the object of the measures in question (see,

inter alia, Eur. Court H.R., Agosi judgment of 24 October 1986, Series

A no. 108, p. 18, para. 52).

Having regard to the State's wide margin of appreciation in

this respect and to the fact that the measure was maintained for only

a limited period of time, the Commission finds that the decisions

complained of cannot be said to have been disproportionate to the

legitimate aim pursued (cf. the Tre Traktörer Aktiebolag judgment,

loc. cit., para. 62).

Consequently, the interference with the applicant company's

right to the peaceful enjoyment of its possessions was justified under

the terms of the second paragraph of Article 1 of Protocol No. 1

(P1-1). It follows that this part of the application is manifestly

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

Convention.

2. The applicant company further 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 the licence. The company also

invokes Article 13 (Art. 13) of the Convention.

Article 6 (Art. 6) of the Convention provides as follows in

the first sentence of its first paragraph:

"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 considers that these issues cannot be

determined without first having obtained written observations from the

parties. The examination of this part of the application must

therefore be adjourned.

For these reasons, the Commission

DECIDES TO ADJOURN THE EXAMINATION of the procedural

complaint regarding the National Board of Health and Social Welfare's

decision of 28 June 1984 (Articles 6 and 13 of the Convention);

DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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WASAGRILLEN KNUT NYLUND AKTIEBOLAG v. SWEDEN

WASAGRILLEN KNUT NYLUND AKTIEBOLAG v. SWEDEN

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