AS TO THE ADMISSIBILITY OF

Application No. 12213/86

by Jon AXELSSON and Others

against Sweden

        The European Commission of Human Rights sitting in private on

10 October 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                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 15 January 1986

by Jon AXELSSON and Others against Sweden and registered on 2 June

1986 under file No. 12213/86;

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

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts may be summarised as follows.

        The applicants are the following:

1.      Mr.  Jon Axelsson, a Swedish citizen born in 1952.

2.      Mr.  Roy Gasper, a Swedish citizen born in 1940.

3.      Mr.  Lars-Erik Hjelm, a Swedish citizen born in 1935.

4.      Mr.  Stig Nissen, a Swedish citizen born in 1946.

        The applicants are taxi owners and holders of taxi licences

for the area of Malmö.  They are members of ROYSTAXI Economic

Association founded in 1981.

        According to the 1979 Act on Commercial Transportation

(yrkestrafiklagen) and the 1979 Ordinance on Commercial Transportation

(yrkestrafikförordningen), taxi traffic may be conducted only by

persons who have a transportation licence.  In addition to this

licence, a licence-holder can obtain a reserve permit applicable to a

reserve car.  Both kinds of licences can be obtained upon application

to the County Administrative Board (länsstyrelsen).

        In April 1980 the County Administrative Board of the County of

Malmöhus granted the Malmö Taxi Economic Association (MTEA) 35 reserve

permits.  MTEA already had 55 such licences.  Two months later the

Board rejected Mr.  Gasper's application for a short-time reserve

permit.  Mr.  Gasper filed a new application for a permanent reserve

permit, which was rejected by the Board on 25 March 1981.  Mr.  Gasper

appealed to the Board of Transport (transportrådet) which rejected the

appeal.  The Board referred in its decision to the 90 reserve permits

held by MTEA as satisfying the need in the zone, and added that the

supervision of the actual demand for taxi transportation was best

carried out through MTEA's dispatch exchange to which the members of

ROYSTAXI do not subscribe.

        On 16 June 1981 and 28 July 1981 respectively, the County

Administrative Board rejected two further applications for reserve

permits from Mr.  Gasper.  On 27 November 1981 a similar application

from Mr.  Hjelm was rejected by the County Administrative Board.

        On 27 November 1981 an application for a reserve permit filed

by Mr.  Nissen was rejected by the County Administrative Board which

referred to the 90 reserve permits of MTEA and the supervisory

function of the dispatch exchange as well as to the earlier rejections

of ROYSTAXI's members' applications.  Mr.  Nissen appealed to the Board

of Transport which rejected the appeal.  Mr.  Nissen submitted a

further appeal to the Government which rejected the appeal on

2 September 1982.

        In September 1984, all the applicants filed a new application

for reserve permits.  In a written opinion submitted to the County

Administrative Board, the municipality of Malmö found that there was

no reason why the licences should not be granted, while MTEA submitted

inter alia that there was an over-establishment of taxi businesses in

the area and that MTEA had resources to cope with even a steep increase

in the demand for services.  The Trade Union of Swedish Transport

Workers held that there was no need for supplementary licences at that

time, though it considered two reserves licences should be granted to

the association ROYSTAXI.

        On 7 November 1984, the County Administrative Board refused

the applicants' request, stating:

        "According to Chapter 2 Section 11 of the Act on Commercial

        Transportation a transportation licence may be granted only

        when the enisaged transportation service is deemed necessary

        and otherwise appropriate.  The County Administrative Board

        is under the obligation to consider the total offer of taxi

        vehicles in a transportation zone in relation to the demand.

        In view of the excessive establishment in the taxi business

        in the transportation zone of Malmö-Burlöv, the County

        Administrative Board holds that there is no need for further

        licences at present."

        The applicants appealed to the Board of Transport.  In its

opinion submitted to the Board, the County Administrative Board

stated:

        "There are at present about 210 ordinary taxi licences in

        the transportation zone of Malmö-Burlöv.  At present, this

        is a sufficient quantity.  Apart from the ordinary licences

        MTEA holds about 90 reserve licences on account of its

        members.  These licences are however made use of only to

        a small extent, since MTEA has chosen to use extra commands

        instead of using the reserve licences, when demand for

        transportation is high.  Occasionally, however, there may

        be need for further taxi vehicles, for instance at Christmas

        and at New Year etc.  Of course, it is also a matter of

        great interest to the appellants to be able to use their

        reserve vehicles maximally.  The County Administrative Board

        is, however, not prepared to grant the appellants reserve

        permits at present.  One important reason for this is the

        following.  In the autumn of 1984 the economic association

        ROYSTAXI has started a dispatch exchange of its own, in

        cooperation with Securitas, Southern Sweden AB.  The County

        Administrative Board has requested the association to

        establish a command plan for its activity, but the

        association has refused to do so.  Without a command plan

        it will be difficult to prevent reserve licences from being

        used to such an extent that they may compete with ordinary

        licences.  The County Administrative Board also calls

        attention to the fact that MTEA is holding an extra general

        assembly on 29 January 1984 to take a final decision

        regarding an amendment of its statutes, which will mean

        that the dispatch exchange may become accessible also to

        independent subscribers.  If the dispatch exchange is opened,

        negotiations to bring about cooperation between these two

        associations should start as soon as possible.  In that

        context, the question of reserve licences should be reviewed.

        One prerequisite for this is, however, that the County

        Administrative Board be given the possibility to control

        the activity by means of a command plan.  The County

        Administrative Board advises against upholding the appeal."

        The applicants' appeal was dismissed on 8 March 1985, the

Board of Transport holding that when assessing the necessity of a

licence, consideration must be given to the quantities of such

licences within the entire area and against this background, it could

not be said that there was any need for further licences.

        The applicants appealed against this decision to the

Government and in addition claimed damages and costs.  The County

Administrative Board in its opinion to the Government reported that

MTEA had changed its statutes and that a meeting had been held between

MTEA and ROYSTAXI:

        "In this context, MTEA assured that if ROYSTAXI was to join

        the common dispatch exchange of MTEA, ROYSTAXI would also

        be permitted to have the 90 reserve licences at its disposal.

        From what has now been said it appears, however, in the

        opinion of the County Administrative Board, that ROYSTAXI

        does not wish to join the common dispatch exchange.  It may

        be added that the County Administrative Board has asked

        ROYSTAXI to hand in a project for a command plan to the

        Board.  In spite of remonstrations, no such plan has been

        submitted.  Considering the circumstances now mentioned, and

        in view of what is said in the attached decision, the County

        Administrative Board requests that the appeal be declined."

        The Government dismissed the applicants' appeal on 5 September

1985.        On 17 April 1986 the County Administrative Board granted 13

reserve permits to a new transportation organisation, the TS Taxi

Transport Service.  The Board of Transport reversed this decision, but

this decision was in turn quashed by the Government on 4 December 1986

and the grant of the permits confirmed.

        Swedish legislation on taxi transport

        Commercial and public transportation in Sweden is governed by

the 1979 Act on Commercial Transportation and the 1979 Decree on

Commercial Transportation.  Such transportation is defined as the

transportation service - by car, truck or bus - offered to the public

for a fee (Chapter 1, Section 4 of the Act).  Such transportation may

only be conducted by persons in possession of a valid transportation

licence (Chapter 2, Section 1 of the Act).  Licences are issued for

either goods or passenger transportation.

        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 Act).  In examining applications, such factors as

professional qualifications, and personal and economic circumstances

are considered.

        Other conditions for passenger transportation are that the

service is deemed necessary and otherwise appropriate (Chapter 2,

Sections 11 and 17 of the Act).

        Specific conditions are often appended to passenger

transportation licences.  One such condition may be for instance that

the licence regards reserve transportation and that it may be used

only when there is a need for it, and when ordinary transportation

licences are already being used.

        Those who hold licences for transportation on demand with

lighter vehicles (taxis) are under the obligation to transport

passengers and baggage on such conditions as are applicable to that

kind of transportation.  Availability is regulated by so called

command plans.  A maximum fare rate is established by the authorities.

        The licence holder for taxi transportation must be connected

to a dispatch exchange which is common to one or several

transportation zones.  The County Administrative Board may grant an

exemption from this obligation on special grounds (Chapter 4, Section

10 of the Decree).  Generally there is no more than one dispatch

exchange in each transportation zone.  The establishment of several

smaller units is not economically feasible because of the high cost of

modern computerised exchanges.  The possibility of a dispensation from

the obligation to subscribe to a dispatch exchange is mainly available

to cater for the needs of taxi services in the vast sparsely populated

areas of the country.

        A passenger transportation licence can be revoked, if 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 Act).

        Licences are usually issued by the County Administrative

Board.  The Board also decides what specific conditions should be met

under the licence.  Before deciding whether to grant a licence for

transportation on demand, an opinion from the competent Police

Authority should be asked for.  Municipalities, organs responsible for

communications, associations of those who carry out commercial

transportation and such trade unions as may be concerned by the

envisaged transportation activity are to be given an opportunity to

submit opinions.  The County Administrative Board also has a

supervisory function and is authorised to revoke licences.  Appeals

against the decisions taken by a Board lie to the Board of Transport.

As a last instance, the Government may review decisions made by the

Board (Chapter 2, Section 1 and Chapter 12, Section 2 of the Decree).

        Reserve licences are granted to enable taxi enterprises to

provide their customers with acceptable services also when demand is

high.  Reserve licences are transportation licences that have been

submitted to the condition that they may be used only to a limited

extent, for instance when other licences are already being used.  Such

licences are, according to widespread practice, usually granted to the

economic associations of taxiowners or to other entities that manage

dispatch exchanges.  The reason for this is that those who manage a

dispatch exchange are best placed to decide when supplementary

vehicles are required.  The licences are generally used in turn by

those connected to the dispatch exchange.  Individual licence holders

may also be granted a reserve licence.

        In January 1988, the Government submitted to Parliament two

Bills on the deregulation of commercial transportation (Government

Bills 1987/88:50 and 1987/88:78).  Government Bill 1987/88:78 contains

a proposal for a new act on commercial transportation which is to come

into force on 1 January 1989.  As regards taxi transport the proposed

legislation means that the test of the necessity and appropriateness

of an envisaged service will disappear as a prerequisite for granting

a licence, as of 1 July 1990.  Furthermore, the duty to keep up the

service and the rules on transportation zones will disappear, rates

will be free and the obligation to be connected to a dispatch exchange

will be dispensed with.  This means that there will in principle be

freedom of establishment for taxi enterprises and that competition

will be free in that line of business.  On the other hand there will

be a sharpening of requirements as to the suitability of those

applying for a licence and the subsequent monitoring of their

suitability will be reinforced.

COMPLAINTS

        The applicants complain that the repeated administrative

refusals to grant the members of ROYSTAXI reserve taxi permits

were based on irrelevant arguments concerning the number of permits

and their rival taxi association's supervisory function, and violated

the applicants' right to freedom of association in itself as well as

together with their right to non-discrimination, bearing in mind the

local authorities' earlier and subsequent granting of such permits to

rival taxi societies in the same zone.

        The applicants also complain that they have had no access to

court in order to have the administrative decisions reviewed.

        The applicants invoke Articles 6, 11 and 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 15 January 1986 and

registered on 2 June 1986.  On 7 December 1986, the Commission decided

to communicate the application to the Government pursuant to Rule

42 para. 2 (b) of its Rules of Procedure and to invite them to submit

written observations on the admissibility and merits.

        The Government's observations were received on 28 March 1988,

after an extension of two weeks of the time-limit, and the applicants'

observations in reply were received on 18 May 1988.

SUBMISSIONS OF THE PARTIES

A.      The respondent Government

        Article 26

        As regards the complaints relating to the various decisions

refusing reserve permits to the applicants, the Government submit

that only the last two sets of proceedings satisfy the requirement of

.PA:12213/86

exhaustion of domestic remedies and that of those only the last one

(i.e. culminating on 5 September 1985) meets the requirement of the

six months rule.

        Article 6

        As appears from the legal provisions governing the possibility

to obtain a taxi licence, such a licence is granted on the basis of an

assessment of the need for that licence.  An assessment is made of the

suitability of the requested licence in view of the aim to obtain a

good structure of transportation and counteract over-establishment.  A

reserve licence is an ordinary taxi licence with special restrictions

as to the conditions under which it may be used.  It also appears that

there is a certain amount of supervision of licence holders and that a

licence may be revoked.  These provisions, as the ones regarding

granting of taxi licences, are laid down in the public interest to

obtain and maintain a good and well-functioning transport structure.

Consequently, while the criteria for obtaining an authorisation are

sufficiently precise to fulfil the criterion of the "rule of law", the

Government submit that the margin of appreciation afforded is such

that it cannot be said that an applicant is granted a right to obtain

a taxi licence of any kind (Eur.  Court H.R., van Marle and others

judgment of 26 June 1986, Series A no. 101, p. 12, paras. 30, 37).

        Nevertheless, in a number of cases pertaining to the exercise

of various activities requiring a licence or an authorisation, the

Court has considered that a contestation pertaining to a civil right

was at issue, and, consequently, that Article 6 para. 1 was applicable

(e.g.  Eur.  Court H.R., Le Compte, Van Leuven and De Meyere judgment of

23 June 1981, Series A no. 43).  In those instances, however, there

was a question of withdrawing or encroaching on a commercial activity

already being exercised.

        In this context, the Government make special reference to the

Benthem case (Eur.  Court H.R., Benthem judgment of 23 October 1985,

Series A no. 97, pp. 14-16, paras. 32, 36, with references).  The

Government point out that in the Benthem case the Court must be

understood as having attached importance to the fact that the licence

concerned in that case had in fact already been made use of.  It was

in the last analysis on the basis of this fact that had appeared a

right in the sense of the earlier jurisprudence of the Court, and that

there could be said to exist a dispute pertaining not only to the

"actual existence of a right", but also to the scope and the manner in

which it was exercised.

        Since in this instance the applicants were never granted a

reserve licence that they could make use of, the Government submit

that no civil right in the sense of the Convention may be said to have

existed.  Consequently the administrative procedure concerning the

granting of reserve licences did not concern a dispute concerning a

civil right, or indeed, a right of any kind.  For this reason, the

application falls outside the scope of the Convention and should be

rejected ratione materiae.

        However, in case the Commission were to find that the

decisions did amount to a determination of the applicants' "civil

rights" within the meaning of Article 6 para. 1, the Government admit

that the applicant was not entitled to take proceedings before an

independent and impartial tribunal, established by law as provided by

the said provision.

        Article 11

        Swedish legislation distinguishes between economic

associations and non-profitmaking (or "friendly") associations.  This

distinction also exists in other legal systems.  It should be noted

that according to Article 1 of the Act on Economic Associations (lagen

om ekonomiska föreningar) the aim of an "economic" association is to

promote the economic interests of its members through economic

activity in which they take part.  There is no corresponding

legislation in the field of civil law concerning non-profitmaking

associations.  These are in principle governed by practice, but

various rules on such associations appear in different acts,

especially in the field of taxation.

        The principle of the freedom of association is laid down in

Chapter 2, Section 1 paragraph 5 of the Swedish Instrument of

Government (regeringsformen) - one of the three fundamental laws which

form the Swedish Constitution.  Freedom of association is guaranteed

for both economic and non-profitmaking associations.

        The corresponding principle of the negative freedom of

association - the freedom to abstain from joining an association - is

however of a more limited scope.  Chapter 2, Section 2 of the

Instrument of Government stipulates i.a. that citizens shall be

protected from the compulsion to belong to a political association, a

religious community or any other associations of a certain political,

religious, cultural or other such opinion.  It follows from this that

economic associations are in principle exempted from this guarantee.

        It has been mentioned above that, in the field of commercial

transportation, certain personal and economic restrictions exist with

the aim of providing the public with an efficient transport service.

One of these restrictions is the obligation for taxi licence holders

to belong to a dispatch exchange.

        It should also be noted that taxi associations are entrusted

by the Decree to administer the dispatch exchanges and are thus

complying with a public law obligation.  The Commission and the Court

have in previous cases found that Article 11 of the Convention offers

no protection in regard to associations having the characteristics of

a public institution (Le Compte, Van Leuven and De Meyere judgment,

loc. cit.; No. 6094/73, Dec. 6.7.77, D.R. 9, p. 5).

        It should be noted that professional associations are to be

found in the taxi branch in Sweden and that the applicants' rights in

this connection have not been restricted in any way.  Taxi owners

usually belong, through a branch organisation, to the Swedish Taxi

Association (Svenska Taxiförbundet), which deals with general

questions concerning the branch.  They usually also belong to the

Swedish Employers' Federation.  The corresponding association for taxi

drivers is the Transport Workers' Union.

        In answer to the Commission's question concerning the possible

interference regarding the applicants' rights under Article 11, the

Government thus maintain that no such interference has taken place,

as the right they refer to does not fall within the scope of the

Convention.  Their complaints should consequently be rejected ratione

materiae.

        The Government also point out that the obstacle complained of

by the applicants regarding their possibilities to affiliate to the

dispatch exchange in question has recently been removed by the change

in the statutes of the Association.  It follows that the grounds for

their complaints in this respect no longer exist.

        It should also be noted that despite the fact that the

applicants have not fulfilled the legal obligation to subscribe to the

dispatch exchange since 1980, they have never been deprived of the

possibility to carry out their profession as licensed taxi owners.

        None of the decisions invoked by the applicants has a direct

bearing on their freedom of association or on their negative freedom

of association.  A global assessment of the decisions concerned,

including the statements made by the County Administrative Board in

the opinions which it has submitted to the Board of Transport and to

the Government leads to the following conclusions.

        The reason why the reserve licences were accorded to MTEA was

that MTEA was charged with operating the common dispatch exchange and

had a command plan, which made it easier to assure that the reserve

licences were used in accordance with the conditions to which they

were subject.

        Article 14

        The Government submit that there has been no discrimination

under Article 14 in conjunction with Article 11.  Any difference in

the way the members of the associations concerned were treated was

objectively and reasonably justified by the aims of the legislation

involved.  The Government also contend that there was a reasonable

proportionality between the means employed and the aims sought

(e.g.  Eur.  Court H.R., Belgium Linguistic judgment of 23 July 1968,

Series A no. 6 p. 34, para. 10).

        For the above reasons the Government contend that the

applicants' complaint should be dismissed as manifestly ill-founded.

B.      The applicants

        Background

        One of the conditions for taxi licences is that the service

intended is deemed necessary and otherwise appropriate.  However it is

not easy, considering the treatment of the applicants' requests for

reserve licences, to give the concept "unnecessary service" a common

sense meaning.

        When the applicants founded ROYSTAXI and resigned from MTEA,

they did so as the strongest possible reaction against a long

monopolised and completely numbed taxi transportation service in

Malmö, a shortcoming for which MTEA and the County Administrative

Board were equally responsible, MTEA carrying on in too steep

traditional tracks and the County Administrative Board relying too

much on MTEA.

        One major feature of the taxi service policy of MTEA was the

idea that the taxis on duty according to the command plan should be

guaranteed - as far as possible - continuous and remunerative

transportation work during their shifts.  This was brought into effect

in a way which caused almost permanent inconveniences to the public.

The number of taxis commanded on each shift was often under what could

be considered appropriate.  In that way MTEA intentionally created a

queue of taxi transportation customers who for the sake of securing

continuous work for the taxi cars on duty had to wait for

transportation after order agreement for half an hour or more without

any information whatsoever.  This system created a lot of discontent

among the public and a great number of reminder calls to the dispatch

exchange.  These reminder calls together with new order calls caused

collapses in the communication activities of the dispatch exchange

where the dispatch exchange of MTEA lost all control over and contact

with the taxi cars and the taxi customers in the streets and in their

places.  These collapses created a queue of taxi cabs without any

contact with the queue of the taxi customers, through the dispatch

exchange of MTEA. Such policy made "taxi jam sessions" could last for

hours in particular during autumns and winters when the Swedish

weather often creates sudden increases in the number of incoming taxi

transportation orders at the dispatch exchange.

        The applicants contend that the major reason for the duration

through the years of this bizarre picture of inefficiency was the taxi

monopoly position of MTEA; no trade competition forced MTEA to change

its odd taxi service policy as mentioned above.  Furthermore, this

acute monopoly position of MTEA in the Malmö taxi zone deprived the

County Administrative Board of all possibilities of inducing MTEA to

make improvements - had there been any such real intent of the County

Administrative Board.

        With 35 new reserve licences, the dispatch exchange of MTEA

had about 200 ordinary taxi licences and 90 taxi reserve licences at

its command.  It was commonplace among all affected that the dispatch

exchange hardly ever used any of the reserve licences.

        The decisive difference between the ordinary taxi licences and

the taxi reserve licences is that the licensee with an ordinary taxi

licence has both the right and the duty to operate taxi transports,

the duty usually defined in a command plan or scheme and the right

referring to the licence as such.  A taxi reserve licence gives the

licensee exclusively the right to operate taxi transports when he

himself deems it necessary to offer extra facilities for travelling

with reference to a sudden increase in the demands for transportation.

        The main backbone of the taxi service consists of the total of

the ordinary taxi licences within a taxi zone.  It is when an

application for an ordinary taxi licence is under consideration that

the Act and the Decree on Commercial Transportation provide - among

other things - that the service must be deemed necessary and otherwise

appropriate.  Sudden and short-time increases in the public demand for

taxi transportation are supposed to be dealt with by means of

mobilising taxi cabs running on taxi reserve licences.

        After their establishing of ROYSTAXI Economic Association in

the summer of 1981 as an independent and competing new taxi

organisation with a new taxi service policy in the Malmö taxi zone,

the applicants found themselves rapidly in demand, the waves of sudden

and short-time increases in the taxi transportation demands reaching

them with shorter intervals.  With their limited resources of

exclusively four ordinary taxi licences and thus never more than four

cabs in traffic, the four applicants had completely to give up the

difference between duty and right to operate taxi transportations; in

principle they all operated all 24 hours every day.

        The applicants would draw attention to four factors of great

economic importance in the taxi service, two factors with a negative

impact and two factors with a positive economic impact:

        a) Economically negative factors:  Those are firstly the

duty with reference to the taxi local command plan to operate taxi

transports even during the nights etc. when the demand for taxi

transports is rather low; within such periods the income seldom covers

the current expenditure.  Secondly the proportion between "empty"

driving on the one hand and driving with paying passengers on the

other could constitute a negative economic factor and must be

carefully balanced.  Even during peak hours of taxi traffic the earning

capacity of a taxi enterprise can turn out to be devastatingly low due

to an imbalance between "empty" and "lucrative" driving.  It is

impossible for a taxi-owner to compensate a periodical loss with a

periodical extra fare, since the maximum fare rate - which is

established by the authorities - may not be exceeded.

        b) Economically positive factors:  The factor of primary

importance here must be the right without duty through a taxi reserve

licence to make the investment laid down in a taxi reserve cab working

during the peak hours of taxi traffic.  The second positive factor may

be the possibility to make advertisement agreements where the

taxi-owner sells space for ads on and in his cab.  This may be

considered the only source of income for a taxi-owner which is not

publicly regulated and restricted.

        The applicants therefore submit that a taxi reserve licence is

an almost indispensable economic asset for a licensee and taxi-owner

with an ordinary taxi licence.

        The taxi reserve licences are not specifically mentioned in

either the 1979 Act on Commercial Transportation or the 1979 Decree on

Commercial Transportation, all bureaucratic investigations having

expressly concentrated upon the issuing of ordinary taxi licences, the

number of which is supposed to form the skeleton of the taxi branch

trade.  With reference to what has been said above it seems also

completely inappropriate to make any special bureaucratic assessments

as to the "necessity" or "lack of necessity" of the extra taxi service

offered on taxi reserve licences.  The expenses for organising and

operating a taxi service and in particular an extra taxi service are

so high that the private taxi-owner will in his own interest certainly

abstain from organising such service on a taxi reserve licence unless

there is a genuine need for such service for at least some continuous

hours; for that reason the problematic situations might be considered

highly and effectively self-regulating.

        It is impossible to reconcile the series of decisions against

ROYSTAXI and its members - in particular when compared with the

favourable decisions concerning MTEA and the TS Transportservice AB -

with even the faintest idea of independence, impartiality and

non-discrimination.  On the contrary, those decisions are

characterised by and reveal a far-reaching partial and consciously

discriminating abuse of bureaucratic power in order to penalise

ROYSTAXI to the advantage of MTEA and to support its monopoly position

in the taxi service.

        The main reason for the refusal is a purely specious argument

given by the County Administrative Board, namely, that the applicants

refuse to establish a command plan.  The command plan is meant to

divide between the right to operate taxi traffic in accordance with

the licence, and which right covers 24 hours a day, and the duty to

operate taxi traffic in the public interest and which duty covers not

more than 12-16 hours a day.  The ROYSTAXI members never refused to

construct a draft of a command plan but found such a plan meaningless

with reference to their taxi service policy in general and to their

obligations in relation to their personal clientèle: they operated

with reference to their licenced right.  While the command plan of

MTEA may have been necessary, a command plan for ROYSTAXI's four taxi

cabs would under the present conditions give only a ridiculous

impression.

        Article 26

        The applicants agree with the respondent Government that only

the last set of proceedings culminating on 5 September 1985 meets the

requirement of Article 26 of the Convention.

        Article 6

        As to the nature of the right to taxi reserve licences and the

right through those licences to operate an independent taxi service

the applicants submit that this right must be of the nature of a civil

right and free trade right in the (autonomous) meaning of the

Convention (see e.g.  Eur.  Court H.R., Benthem judgment, loc. cit.,

Pudas judgment of 27 October 1987, Series A no. 125 and H. v.  Belgium

judgment of 30 November 1987, Series A no. 127).  In all three cases

the Court has found a right of a civil nature under determination and

for that reason Article 6 of the Convention applicable.

        The applicants allege that their right to a taxi reserve

licence in the present case must be considered a civil right on the

scale somewhere between the right of Mr.  Benthem and the right of Mr.

H. in the case of H. v.  Belgium, though closer to Mr.  Benthem's right,

since the taxi reserve licence is a crucial economic asset in a taxi

transportation enterprise in Sweden as noted above.  The applicants

submit - with reference to Swedish legal provisions - that the

assessment of the suitability and necessity of the requested licence

concerns only ordinary taxi licences which are the only ones expressly

mentioned in the 1979 Act and Decree on Commercial Transportation.

The necessity for an ordinary taxi licence must be found present

because of the fact that there is both a right and a duty to organise

taxi traffic concomitant with the ordinary taxi licence.  In

exercising his duty to organise taxi traffic in accordance with the

command plan the taxi-owner and ordinary taxi licensee must as much

as possible be spared expensive "empty" driving.

        As observed before, the taxi reserve licences simply give the

licensee a right to organise extra taxi traffic during peak hours if

he deems this extra traffic appropriate.

        The fact that the applicants were never allowed a tribunal

review concerning their applications for taxi reserve licences

constitutes a violation of the applicants' rights as set forth in

Article 6 para. 1 of the Convention.

        Also from another poiont of view the applicants' right as set

forth in Article 6 para. 1 has been violated.  When the applicants

appealed against the bureaucratic decisions denying them each a

personal taxi reserve licence the applicants alleged that if they were

denied those licences this should be considered a discrimination and a

violation of their freedom of association.

        Articles 11 and 14

        It seems incontrovertible that when the administration grants

MTEA and the TS Transportservice AB taxi reserve licences to be used

independently in their respective taxi transport enterprise on a

market of their own in the Malmö-Burlöv taxi zone when appropriate,

the administration in rejecting the applications for taxi reserve

licences of the members of ROYSTAXI discriminates against the

applicants as members of an independent taxi association and denies

them and their independent organisation a taxi market and an

independent marketing of their own.

        The applicants find that those decisions imply violations of

their freedom of association through discrimination and for that

reason violations of Articles 11 and 14 of the Convention.

THE LAW

1.      Article 26 (Art. 26) of the Convention

        The applicants complain of the proceedings and administrative

decisions in which they have been refused reserve taxi permits.

        The Commission recalls that the respondent Government submit

that Article 26 (Art. 26) of the Convention is satisfied only in

respect of the last set of proceedings, i.e. the proceedings involving

all four of the applicants which ended on 5 September 1985.  The

Commission notes that the applicants accept the respondent

Government's submissions on this point.

        The Commission also considers that it can only examine the

applicants' complaints in relation to the last set of proceedings

which ended on 5 September 1985 with the dismissal of the appeal of

the four applicants by the Government.

2.      Article 6 (Art. 6) of the Convention

        The applicants complain that they have had no access to court

in order to have the administrative decisions, refusing them reserve

licences, reviewed.  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."

        In their observations the respondent Government concede that

if the decisions in question concerned a determination of the

applicants' "civil rights" within the meaning of Article 6 para. 1,

(Art. 6-1) the applicants were not able to bring proceedings before an

independent and impartial tribunal established by law as required by

that provision.  The Government submit however that the proceedings

did not involve the determination of the applicants' "civil rights",

contending that the applicants did not have a right to obtain a

reserve licence.  The Government further argue that in similar

previous cases where a "contestation" pertaining to a "civil right"

has been found, the applicant had already been granted or enjoyed the

benefit of the licence prior to it being revoked.

        The Commission has made a preliminary examination of these

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

these issues raise important and complex questions of fact and law

which require an examination on the merits.  This complaint must

therefore be declared admissible, no other ground for declaring it

inadmissible having been established.

3.      Article 11 (Art. 11) of the Convention

        The applicants complain that they have been refused reserve

permits since they are not members of MTEA.  They invoke Article 11

(Art. 11) of the Convention, which provides:

        "1.  Everyone has the right to freedom of peaceful assembly

        and to freedom of association with others, including the

        right to form and join trade unions for the protection of

        his interests.

        2.  No restrictions shall be placed on the exercise of these

        rights other than such as are prescribed by law and are

        necessary in a democratic society in the interests of

        national security or public safety, for the prevention of

        disorder or crime, for the protection of health or morals or

        for the protection of the rights and freedoms of others.

        This Article shall not prevent the imposition of lawful

        restrictions on the exercise of these rights by members of

        the armed forces, of the police or of the administration

        of the State."

        The Commission recalls that indeed MTEA hold 90 reserve

permits, of which 35 were granted in April 1980.  It appears however

from the decisions of the County Administrative Board and the Board of

Transport that the reason for the refusal of such licences to the

applicants was the finding that there was no need for further licences

in the area at that time.  While members of MTEA therefore have the

possibility of using reserve permits, whereas the applicants do not,

the Commission does not find that the applicants have thereby been

placed under any obligation to join MTEA.  The Commission notes that

they have been able to continue throughout to carry out their business

of providing a taxi service.  In these circumstances, the Commission

finds no appearance of a violation of the applicants' right to

freedom of association under 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.      Article 14 (Art. 14) of the Convention

        The applicants complain that they have been discriminated

against since MTEA and the TS Transportservice have been granted

reserve licences whereas they have been refused such licences.

        Article 14 (Art. 14) of the Convention provides:

        "The enjoyment of the rights and freedoms set forth in

        this Convention shall be secured without discrimination

        on any ground such as sex, race, colour, language,

        religion, political or other opinion, national or social

        origin, association with a national minority, property,

        birth or other status."

        The Commission recalls that Article 14 (Art. 14) prohibits

discrimination in respect of enjoyment of the rights and freedoms set

out in the Convention.  There is no right as such to be granted a taxi

licence or a reserve licence contained in the Convention. Further, the

Commission recalls that it has found no appearance of a violation of

the applicants' right to freedom of association as guaranteed by

Article 11 (Art. 11) of the Convention.  The Commission also finds

that there is no indication that the applicants have been

discriminated against in the enjoyment of their rights under Article

11 (Art. 11) of the Convention.  Consequently, there is no appearance

of a violation of Article 14 (Art. 14) of the Convention.

        It follows that this complaint is also manifestly ill-founded

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

        For these reasons, the Commission

        DECLARES ADMISSIBLE, without prejudging the merits,

        the applicants' complaint under Article 6 para. 1 of

        the Convention;

        DECLARES INADMISSIBLE the remainder of the application.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)