Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12119/86

by Bengt PUDAS

against Sweden

The European Commission of Human Rights sitting in private

on 6 September 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 17 October 1985

by Bengt PUDAS against Sweden and registered on 14 April 1986 under

file No. 12119/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the observations submitted by the Government

on 6 October 1988 and the applicant's observations of 3 March and

26 August 1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as submitted by the parties, may be summarised as

follows.

The applicant is a Swedish citizen, born in 1959 and resident

at Övertorneå. He is a self-employed taxi owner. Before the

Commission the applicant is represented by Mr. Göran Ravnsborg, a

university lecturer at Lund.

The applicant has previously submitted an application (No.

10426/83) concerning the revocation of his licence to operate

inter-urban traffic on certain routes. He complained inter alia that

he had no possibility of having the revocation of the licence examined

by a court. The Commission as well as the Court found that there had

been a breach of Article 6 para. 1 of the Convention (cf. Eur. Court

H.R., Pudas judgment of 27 October 1987, Series A no. 125-A). In his

present application the applicant complains, inter alia, that he was

refused an exemption from a legally provided duty to belong to a

common taxi dispatch exchange.

The relevant provisions concerning taxi traffic, as well as

other commercial and public transportation are contained in the 1979

Act on Commercial Transportation (yrkestrafiklagen) and the 1979

Ordinance on Commercial Transportation (yrkestrafikförordningen).

Taxi traffic may only be conducted by persons who have a valid

transportation licence. A licence can be obtained upon application to

the County Administrative Board (länsstyrelsen). Licences are only to

be granted to persons (physical or legal), who are deemed suitable to

conduct the service (Chapter 2 Section 3 of the 1979 Act). In

examining applications, such factors as professional qualifications,

and personal and economic circumstances are considered. The reason for

these prerequisites is to ensure that transportation is carried out

under satisfactory circumstances. Other conditions are that the

service is deemed necessary and otherwise appropriate (Chapter 2

Sections 11 and 17 of the 1979 Act). The reason for this is the

overall aim to maintain an adequate network of transportation and to

counteract the establishment of unnecessary services. Specific

conditions are often appended to passenger transportation licences.

These include the obligation for holders of licences for

transportation on demand with lighter vehicules, such as taxis, to

offer a regular service for passengers.

A licence can be revoked, on condition that the licence has

been misused in such a way that the holder can no longer be deemed

suitable to conduct the service. In less serious cases, a warning may

be issued. If the service is not kept up, the licence should also be

revoked (Chapter 3 Sections 1 and 2 of the 1979 Act).

The County Administrative Boards decide what specific

conditions should be met under the licence.

In addition these Boards have a supervisory function. They

are also authorised to revoke licences. Appeals against the decisions

of a County Administrative Board may be made to the Board of Transport

(transportrådet). As a last instance, the Government may review

decisions of the Board of Transport.

The taxi traffic is organised in zones which comprise a

certain district of a county. A taxi licence is granted for a certain

zone. In each traffic zone there is normally one taxi association,

which, inter alia, is charged with the task of keeping a dispatch

exchange.

According to Chapter 4 Section 10 of the 1979 Ordinance a

licence holder for taxi transportation must belong to a common

dispatch exchange. The same provision authorises the County

Administrative Board to grant an exemption from this obligation if

there are special reasons. This provision was added to the Ordinance

in 1980 and entered into force on 1 October 1980.

The Övertorneå Municipality in the County of Norrbotten is

divided into two taxi zones, one for the main population centre,

Övertorneå, and one for the rest of the municipality. There is a

common dispatch exchange, situated at Övertorneå, for the two taxi

zones. The dispatch exchange is run by the licence holders of the

Övertorneå taxi zone through the Övertorneå Taxi Economic Association

(ÖTEA).

On 1 February 1980 the County Administrative Board of

Norrbotten granted the applicant a taxi traffic licence, and on

20 May 1980 - the day on which he commenced his business - he was

granted a licence to operate inter-urban traffic on certain routes.

The latter licence was revoked on 17 August 1981. The applicant's

transportation business was established at Hedenäset, a village

approximately 20 km from Övertorneå.

On 5 October 1982, the County Administrative Board,

in a decision concerning the organisation of the taxi traffic in the

Övertorneå municipality, prescribed that the applicant, and another

licence holder with his car stationed at Hedenäset, Mr. Thörmänen,

should before the end of 1982 subscribe to the common dispatch

exchange at Övertorneå.

The applicant and Mr. Thörmänen appealed to the Board of

Transport claiming exemption from the duty to belong to the common

dispatch exchange at Övertorneå. They alleged, inter alia, that the

majority of the members of ÖTEA were opposed to their affiliation to

the association's dispatch exchange and that the working committee of

the Municipal Executive Board (kommunstyrelsens arbetsutskott), in an

opinion of 29 December 1981 to the County Administrative Board, on the

division of the county into taxi traffic zones, had stated that the

County Administrative Board ought to grant an exemption for the taxi

owners of the municipality from the requirement to belong to a common

dispatch exchange. They also alleged that their business was well

established at Hedenäset and that the affiliation would affect them

negatively. The Board of Transport returned the appeal to the County

Administrative Board since the requests for exemption had not been

dealt with by that Board.

On 8 June 1983 the County Administrative Board refused to

grant the exemptions requested. The reason given for the refusal

was that the applicant and Mr. Thörmänen had not indicated any reasons

in support of their requests that could justify exemptions from the

decision of the County Administrative Board of 5 October 1982.

The applicant and Mr. Thörmänen appealed to the Board of

Transport. The applicant referred to an opinion, given by the

Municipal Executive Board on Mr. Thörmänen's appeal, in which that

Board supported Mr. Thörmänen's appeal. On 29 June 1984 the Board of

Transport rejected the applicant's appeal, for the same reasons as the

County Administrative Board. Mr. Thörmänen's appeal was also rejected.

The applicant then appealed to the Government claiming an

exemption from the duty to belong to a common taxi dispatch exchange.

Alternatively, he claimed that his compulsory affiliation to the

dispatch exchange should be executed by means of a contract drafted

with the active assistance of the Office of the Ombudsman for Free

Enterprise (Näringsfrihetsombudsmannen), that he should receive full

compensation for costs and losses in his business caused by the

affiliation and that he should receive compensation for costs

connected with the fact that he personally had to move from his

parents' home at Hedenäset to Övertorneå because of the affiliation.

The Government rejected the applicant's appeal on

25 April 1985.

The applicant became a member of ÖTEA in September 1985.

In order to do so he had to pay a subscription fee of 25,000 SEK and

he also had to install a communication radio in his vehicle at a cost

of 5,247 SEK. The applicant has moved from his parents' home at

Hedenäset to an apartment at Övertorneå.

COMPLAINTS

1. The applicant alleges a violation of Article 6 para. 1 of the

Convention, in that the decision of the Government of 25 April 1985

concerned a determination of his civil rights and obligations and

since he had no possibility of having the refusal to grant exemption

from the duty to belong to a dispatch exchange examined by a court.

2. The applicant complains that the fact that he is obliged to

belong to the dispatch exchange at Övertorneå has forced him to become

a member of ÖTEA on the conditions set up by that organisation. Such

membership is necessary in order to avoid the risk of losing his taxi

licence. The applicant submits that he has had to accept the

provisions of the affiliation contract as they were and that he could not

claim changes in the contract or have its invalidity established in

court proceedings. He invokes Articles 6 para. 1 and 14 of the

Convention.

3. The applicant complains that the refusal of an exemption from

the obligation to belong to the common dispatch exchange at Övertorneå

forced him to join ÖTEA. He alleges a violation of his right to

negative freedom of association and invokes Article 11 of the

Convention.

4. The applicant also complains that the Government's decision of

25 April 1985, which made it necessary for him to move from his

parents' home to an apartment at Övertorneå, violates Article 8 of the

Convention and Article 2 of Protocol No. 4 to the Convention.

5. The applicant further complains that the Government's decision

to refuse him the requested exemption caused him extra costs both in

his business and privately. He claims that this constitutes a

violation of Article 1 of Protocol No. 1 to the Convention and of

Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 October 1985 and

registered on 14 April 1986.

On 4 July 1988 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated

6 October 1988 and the applicant's observations in reply were dated

3 March 1989. Further observations from the applicant were received by

letter of 26 August 1989.

THE LAW

1. The applicant complains that there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention as he could not have

the refusal of an exemption from the duty to belong to a dispatch

exchange examined by a court.

Article 6 para. 1 (Art. 6-1) first sentence reads:

"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 Government submit that the applicant had no "right" under

Swedish law to be exempted from the duty to belong to a dispatch

exchange. Whether or not he should be exempted was a question in

regard to which the authorities exercised full discretion. Moreover,

although the decision had some effects on the applicant, such as the

payment of a fee to ÖTEA, it did not thereby become a determination of

the applicant's civil rights. Alternatively, the Government contend

that no serious dispute was at hand. This complaint should

consequently be rejected as being incompatible ratione materiae with

the Convention or as being manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. In case the

Commission were to find that Article 6 para. 1 (Art. 6-1) did apply,

the Government admit that the applicant could not take proceedings

before a tribunal satisfying the said provision.

The issues to be decided are whether the Government's decision

of 25 April 1985 was decisive for the applicant's "civil rights (or)

obligations" and, if so, whether a genuine and serious dispute arose

over the refusal to grant the applicant an exemption from the duty to

belong to a dispatch exchange. In the affirmative, it would then have

to be determined whether the applicant had at his disposal a procedure

satisfying the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention in regard to that dispute.

The Commission has made a preliminary examination of these

issues in the light of the parties' submissions. It considers that

these issues raise questions of fact and law which are of such a

complex nature that their determination requires an examination of the

merits. This complaint cannot therefore be declared inadmissible as

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

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established. This part of the application is

therefore admissible.

2. The applicant complains that the duty to belong to the

dispatch exchange has forced him to become a member of ÖTEA on

conditions set up by that association. The applicant alleges that he

had to accept ÖTEA's affiliation contract without having the

possibility to claim changes or its invalidity before a court. In this

respect the applicant refers to Article 6 (Art. 6) and to Article 14

(Art. 14) of the Convention, which prohibits discrimination in the

enjoyment of the Convention rights.

The Government submit that the applicant has not been forced

to become a member of ÖTEA and, as regards the terms of the contract,

they submit that the applicant could challenge any unfair terms of

contract before the Market Court (marknadsdomstolen) or before the

ordinary courts.

The Commission considers that these complaints do not disclose

any appearance of a violation of the provisions invoked by the

applicant. It follows that they are manifestly ill-founded within the

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

3. The applicant further alleges a violation of his right to

negative freedom of association and invokes Article 11 (Art. 11) of the

Convention.

The Government submit that this complaint is inadmissible as

being incompatible ratione materiae with the provisions of the

Convention or for failure to exhaust domestic remedies. They maintain

that, as the duty to belong to a dispatch exchange is provided for by

law, the ÖTEA is fulfilling a public law obligation when running such

a dispatch exchange. Article 11 (Art. 11) does not offer any

protection in regard to associations having the characteristics of a

public institution.

Article 11 (Art. 11) guarantees to everyone the "freedom of

association with others". The Commission has previously held that the

duty of a holder of a taxi licence to belong to a dispatch exchange,

and the refusal to grant exemption from such a duty cannot be regarded

as an interference with the rights guaranteed by Article 11 (Art. 11)

(cf. No. 10368/83 and 10642/83, Dec. 10.10.85, unpublished). The

Commission recalls that the Government's decision did not oblige the

applicant to become a member of ÖTEA. It is true that the dispatch

exchange was run by ÖTEA. The facts before the Commission do not show

that the duty to belong to a dispatch exchange implied an obligation

to join ÖTEA. In this context, the Commission notes the Government's

submission that the refusal of an association running a dispatch

exchange to admit affiliation to a dispatch exchange, unless the

applicant becomes a member of the association, could be the basis for

an exemption from the duty to belong to the dispatch exchange. The

facts of the present case do not disclose that the applicant's

decision to join ÖTEA was caused in a manner which violates Article 11

(Art. 11) 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.

4. The applicant also alleges violations of Article 8 (Art. 8) of

the Convention, Article 1 of Protocol No. 1 (P1-1) to the Convention,

Article 2 of Protocol No. 4 (P4-2) to the Convention and Article 14

(Art. 14+P1-1) of the Convention in conjunction with Article 1 of

Protocol No. 1 to the Convention.

However, the Commission finds no appearance of a violation of

these provisions. These complaints are therefore manifestly

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

Convention.

For these reasons, the Commission

1. DECLARES ADMISSIBLE, without prejudging the merits,

the complaint of absence of a court procedure in regard

to the decision of 25 April 1985 (Article 6 para. 1 (Art. 6-1)

of the Convention).

2. DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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PUDAS v. SWEDEN

PUDAS v. SWEDEN

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