SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32535/02 by SVENSKA FLYGFÖRETAGENS RIKSFÖRBUND and

SKYWAYS EXPRESS AB against Sweden

The European Court of Human Rights (Second Section), sitting on 12 December 2006 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mrs A. Mularoni , Mrs E. Fura-Sandström , Ms D. Jočienė , Mr D. Popović , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 27 August 2002 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Svenska Flygföretagens Riksförbund (the National Association of Swedish Airlines), is a nationwide non-profit association open for membership to all serious, commercial airline companies. The second applicant, Skyways Express AB, is a private limited airline company based in Sweden and is a member of the applicant association. The applicants are rep resented before the Court by Mr J. Thörnhammar , a lawyer practising in Stockholm . The Swedish Government (“the Government”) are represented by their Agent, Mr C.H. Ehrenkrona , Ministry for Foreign Affairs .

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

The Swedish Civil Aviation Administration ( Luftfartsverket , hereinafter “the CAA”) is a public utility , wholly-o wned by the Swedish State . The activities of the CAA are directed by the Government and subject to their d ecisions. The CAA operates 19 airports in Sweden and is responsible for , inter alia , air traffic services and air safety in the country. The aviation infrastructure is financed through charges levied by the CAA on the airline companies wanting to use State airports. About two-thirds of the CAA ’ s budget is financed by these traffic charges.

The Government specify the economic goals an d restrictions applicable to State authorities, such as the CAA, through so-called letters of regulation ( r egleringsbrev ), which are binding. The letter of regulation relevant to the instant case was issued by a Government decision dated 18 December 1997 . It stipulated guidelines for, inter alia , the overall targets and the financial conditions of the CAA and specifically fixed the financial targets of the CAA for the period between 1999 and 2001. The letter also stipulated the following limitation on permissible increases in traffic charges:

“As a restriction on price increase s , the traffic charges, excluding land routing charges, security charges and noise charges, must not increase on average over the years more than the net price index, calculated as o f 1993.”

Following consultations with Swedish and foreign airline companies, the CAA, on 10 December 1998, decided to adopt a regulation which established new norms for air traffic charges at State airports (the Code of Statutes of the CAA – Luftfartsverkets författningssamling – LFS 1998:83). The regulation was published on 22 December 1998 and entered into force on 1 January 1999 .

By a letter of 10 January 1999 , the first applicant, on behalf of its members, filed an appeal with the Government against the decision of the CAA. It argued that the increase in air traffic charges amounted to 5%, which was too high having regard to the situation in the country with hardly any inflation and low interest rates. It also pointed out that the new charges heavily disadvantaged smaller aircraft, imposing on them relatively high price increases compared to heavier aircraft. The first applicant also stated that the airline companies had not had sufficient time to alter their customer prices in line with the increase since the decision had been made by the CAA on 10 December 1998 and had come into force already on 1 January 1999.

The CAA submitted its comments to the Government in a letter dated 15 January 1999 . The CAA initially stated that the appeal had been received on 12 December 1998 and had thus been made in time. (The stated date is obviously incorrect; the correct date appears to have been 12 January 1999.)

However, the CAA opposed the appeal since the increase in the charges was necessary to fulfil the financial demands imposed on the CAA. It stated that the total increase in charges amounted to 4.2%, which corresponded to an annual increase in its income of approximately 115,000,000 Swedish kronor (SEK). The main increases had been made in relation to passenger charges, charges for local air flight services and the minimum charges for landing. The increase of the two latter charges in relation to smaller aircraft had been compensated by introducing a new annual landing card and by increasing the weight-limit for aircraft having to pay the local air flight charge. Furthermore, the lighter aircraft had experienced very little price increases between 1993 and 1998 compared to the heavier aircraft.

The CAA further reiterated that the Government had imposed a limit on the charge increase corresponding to the net price index calculated from 1993. The increase in charges previously made between 1993 and 1998 had, however, been below this limit; the CAA had in fact lowered prices by 5% during this period. The current increase was therefore well within the scope of possible increases accumulated over the years.

In a letter dated 29 April 1999 , the first applicant submitted to the Government its comments on the CAA ’ s position. It stated that the introduction of the annual landing card for the lighter aircraft, whilst commendable, was of minor importance since only three or four aircraft in the country could benefit from it. It conceded that, in previous years, the CAA had charged less than the authorised price increases. However, it found it remarkable that the CAA relied on the cumulative effect of the price ceiling ’ s shortfall over the years to justify a steep increase in the charges now.

On 11 May 2000 the first applicant further submitted that the net price index had fallen heavily since 1995 and had, during certain periods, almost reached the 1993 level. The scope for increasing the charges had thus gradually been reduced. Furthermore, a large part of the increase concerned charges restricted by the Government ’ s letter of regulation, and the increase in those charges clearly exceeded the development of the net price index. The first applicant also stated that the real increase in charges was in fact greater than that mentioned by the CAA, since infrastructure costs should also be considered a traffic charge.

The CAA submitted to the Government on 26 June 2000 that it had not overstepped the price ceiling set by the Government and that the infrastructure charges were to be excluded from the calculation of the increases complying with the price ceiling.

The first applicant responded, in submissions to the Government on 21 August 2000, that the Government ’ s letter of regulation did not provide for the possibility of accumulating the annual increases, as the CAA had done, and that the increase in air traffic charges clearly exceeded the development of the net price index during the given period.

On 28 February 2002 the Government dismissed the first applicant ’ s appeal for the following reasons:

“Under section 35 of the Ordinance (1988:78) with Instructions for the CAA, the decisions of the CAA in matters other than personnel issues are subject to appeal only if expressly stated. The instant appeal concerns a decision on the issue of regulations, as provided for in chapter 8 of the Instrument of Government [ Regeringsformen ]. There is no provision stating that an appeal lies against such a decision of the CAA. The appeal will not therefore be examined.”

B. Relevant domestic law and practice

The CAA is a public utility and part of the State administration. It does not own its assets but merely administers them for the State. As opposed to other public authorities, a utility is a self-financing unit conducting business, and is run on principles of corporate finance. Under section 1 of the Ordinance with Instructions for the CAA ( Förordning en med instru k tion för Luftfartsverket , 1988:78, hereinafter “the CAA Ordinance”), applicable at the material time, the CAA is defined as a central public authority with the overall responsibility for civil aviation.

The Government decide upon the conditions for the individual State authorities through ordinances and annual letters of regulation. The letters of regulation set out, inter alia , the goals to be achieved by the authority, the funding at the authority ’ s disposal and the way that funding should be distributed among its different activities.

Chapter 6, section 13 of the Aviation Act ( Luftfartslagen , 1957:297) provides that the Government, or an authority designated by the Government, may issue regulations concerning charges for the use of public airports or other public facilities or services for air traffic. While the air traffic charges originally were set by the Government, the competence to do so was, of 1 January 1993, delegated to the CAA through an amendment (section 75) to the Aviation Ordinance ( Luftfartsförordningen , 1986:171). These two provisions constituted the legal basis for the CAA ’ s decision of 10 December 1998 to adopt its regulation on new air traffic charges.

As regards the right to appeal, section 35 of the CAA Ordinance provided the following:

“The decisions of the CAA in personnel matters are subject to appeal to the Government, [unless otherwise stated] ...

The decisions of the CAA concerning the enrolment for education in the air traffic control service are not subject to appeal. The decisions of the CAA in other matters are subject to appeal only if

1. this follows from a provision other than section 22(a) of the Public Administration Act [ Förvaltningslagen , 1986:223], or

2. a provision specifically refers to section 22 (a) of the Public Administration Act.

If the matter concerns the exercise of public authority in respect of an individual and there are no specific provisions on appeal, the decision is nevertheless subject to appeal to the Government.”

The Public Administration Act applies to the handling of matters by the administrative public authorities and to the courts ’ handling of administrative matters (section 1).

Under section 22 of the Act, a decision may be appealed by the person whom the decision concerns, provided that it has affected him or her adversely and is subject to an appeal.

Under section 22 (a), appeals lie to the administrative courts. However, this does not apply to decisions in administrative matters or in matters concerning the adoption of regulations ( normgivningsärenden ) , as provided for in chapter 8 of the Instrument of Government ( Regeringsformen ). If there is a specific provision in another Act providing for an appeal, that provision will have precedence.

Section 23 provides that an appeal shall be made, within three weeks, to the authority which issued the impugned decision. According to section 24, that authority shall examine whether the appeal has been submitted in time. If it has been submitted in time, the appeal and the case-file are forwarded to the authority empowered to examine the appeal.

Chapter 8 of the Instrument of Government contains provisions on laws and other regulations, stating the areas which may be regulated only by law and the areas which may also be regulated by other provisions, as well as the competence of Parliament or the Government to delegate the power to issue regulations to the authorities or the municipalities.

The term “exercise of public authority” ( myndighetsutövning ) is used in many laws and regulations, including the Instrument of Government, the Public Administration Act, the Criminal Code ( Brottsbalken ) and the Tort Liability Act ( Skadeståndslagen , 1972:207). According to the preparatory works of the Instrument of Government (prop. 1973:90, p. 397) and the Public Administration Act (prop. 1985/86:80, p. 55), the term has the same meaning as section 3 of the repealed 1971 Public Administration Act (1971:290). That section gave the following definition: “the exercise of authority to decide on a benefit, right, obligation, disciplinary sanction, dismissal or other comparable issue in respect of an individual” ( “ utövning av befogenhet att för enskild bestämma om förmån , rättighet , skyldighet , disciplinpåföljd , avskedande eller annat jämförbart förhållande ” ).

COMPLAINT S

1. The applicants complained, under Article 6 § 1 of the Convention, that they did not have access to a court. They also claimed that the length of the proceedings before the Government had been unreasonable, especially in view of the fact that the merits of the case had not been examined.

2. The applicants also asserted, under Article 13 of the Convention, that they had not had an effective domestic remedy for their complaints.

3. Moreover, they complained, under Article 1 of Protocol No. 1 to the Convention, that the new air traffic charges adopted by the CAA involved an unjustified infringement of the possessions of the members of the first applicant association, including the possessions of the second applicant. Allegedly, the increase in charges lacked a legal basis and was not foreseeable.

4. Finally, the applicants claimed, under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, that airline companies operating with smaller aircraft, such as many members of the first applicant association, including the second applicant, were treated in a disadvantageous manner compared to those companies operating with heavier aircraft.

THE LAW

A. Preliminary objections

1. The submissions of the Government

The respondent Government claimed that the first applicant ’ s complaints under Article 1 of Protocol No. 1 to the Convention, taken alone or in conjunction with Article 14 of the Convention, as well as its complaint under Article 6 § 1 of the Convention regarding access to court, should be declared inadmissible for being incompatible ratione personae . They argued that there had been no allegation of an interference with the property of the first applicant itself and that, while the new air traffic charges adopted by the CAA were alleged to have determined the civil rights and obligations of the members of the first applicant, and thus to have created for them a right of access to court, this did not mean that the first applicant could be regarded as a victim in this respect. Furthermore, bearing in mind that the first applicant in the domestic proceedings was acting as the representative of its members, the Government questioned whether it could be considered a victim of the alleged violation under Article 6 § 1 regarding the length of the proceedings. In the above respects, the Government observed that, while the first applicant could be claiming to represent its members before the Court, it had not shown that it had instructions from those members to lodge an application on their behalf.

The Government further submitted that the domestic proceedings were aimed at obtaining a review in abstracto of the CAA regulation of 10 December 1998, and that the applicants had made no reference to any specific implementation measure by the CAA through which the regulation was applied in a specific case. Consequently, should the applicants ’ complaints under Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, be understood to be directed against the adoption and existence of the contested regulation, they should be declared inadmissible as being incompatible ratione personae .

The Government recognised, nevertheless, that the applicants ’ complaints relating to the imposition of the new air traffic charges conceivably could be construed as being directed against the individual implementing measures taken by the CAA on the basis of the regulation. A multitude of decisions to levy charges are issued each day by the CAA in respect of all flights in Swedish airspace and the members of the first applicant had clearly been affected by such measures. However, while there had been no possibility to appeal against the decision of the CAA to adopt the regulation at issue, its decisions to levy air traffic charges in specific cases were subject to appeal to the Government under section 35, subsection 3 of the CAA Ordinance. Within the framework of such an appeal, the Government would be able to take into account any objections raised by the relevant airline company regarding the lawfulness and validity of the CAA regulation and to determine whether it provided a legal basis for the charges levied in a specific case. The members of the first applicant (including the second applicant) accordingly had at their disposal a remedy for indirectly challenging the regulation. As the applicants had not shown that this remedy had been exhausted, the Government submitted that the complaints under Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, were inadmissible for failure to exhaust domestic remedies.

The Government also claimed that, in respect of the last-mentioned complaints as well as the complaint under Article 6 of the Convention regarding access to court, the applicants had failed to comply with the six-month time-limit. The Government argued that it was clear that the decision of the CAA to adopt the regulation on air traffic charges was not subject to appeal. The appeal lodged by the first applicant as a representative of its members accordingly constituted an ineffective remedy, which could not bring the application within that time-limit. The applicants had not presented any argument to support the conclusion that they should not have been aware of the circu ms tances preventing that appeal from being considered on the merits by the Government.

2. The submissions of the applicants

The first applicant did not claim to be a direct victim of the alleged violation of Article 1 of Protocol No. 1 to the Convention. However, as its activities were financed by its member companies, it had been indirectly affected by the increased charges. Furthermore, in the domestic proceedings the first applicant had acted on behalf of its members, including the second applicant. It had had the authority to do so, as the objects of the association included representing its members and safeguarding their interests in relation to the Government, Parliament, public authorities and other organisations, as well as actively promoting negotiations regarding fees and other charges. Thus, the first applicant did not need a separate power of attorney for each measure it took within that scope of authority. Moreover, neither the CAA nor the Government had raised any objection on this point.

The applicants further submitted that they were not arguing that the CAA regulation in abstracto was in conflict with the Convention. Rather, they claimed that the CAA had gone beyond the limits of its powers as set out in the Government ’ s letter of regulation and, accordingly, challenged the legality of the regulation. The applicants had been immediately affected by the contested regulation once it had come into force.

Moreover, the applicants maintained that the adequate and only remedy in the case had been the appeal against the decision of the CAA of 10 December 1998 to adopt the regulation which established nor ms for air traffic charges . They argued that a so-called “norm decision” could involve the exercise of public authority, and consequently be subject to appeal under section 35, subsection 3 of the CAA Ordinance, even if it had only indirect effects on individuals. Claiming that the CAA decision involved such exercise of public authority, the applicants stated that they had had reasonable and legitimate grounds for believing that the decision was subject to appeal. Furthermore, the remedy suggested by the Government – appeals against the individual day-to-day decisions taken by the CAA in respect of charges for each flight – could not be considered effective. The day-to-day decisions were made in the form of commercial invoices, which were not phrased as decisions and did not contain any directions on how to appeal. By appealing against these decisions, it would not be possible to challenge the legality of the norm, i.e. the CAA regulation, and the suggested remedy was not therefore capable of providing the applicants with redress or a reasonable prospect of success.

Finally, the applicants asserted that, in the circu ms tances, it could not be held against the applicants that they had appealed against the CAA decision of 10 December 1998 . Section 35 of the CAA Ordinance, the only provision giving directions in respect of appeals against CAA decisions, was not sufficiently clear. Allegedly, it indicated prima facie that the chosen remedy was effective. The applicants had therefore been entitled to await the outcome of proceedings before the Government before lodging an application with the Court. Maintaining that their appeal had been the sole effective and appropriate remedy, they submitted that the Government ’ s decision of 28 February 2002 to dismiss the appeal must be considered as the final decision in the case. In any event, the fact that it took the Government more than three years to issue that decision constituted sufficient “exceptional circu ms tances”. Accordingly, the six-month time-limit had been complied with.

3. The Court ’ s assessment

The Court notes that the Government, on 28 February 2002, dismissed the applicant ’ s appeal against the decision of the CAA of 10 December 1998 to adopt a regulation concerning air traffic charges. The appeal was dismissed without an examination of the merits as there was no provision stating that an appeal lay against such a decision of the CAA. Reference was made to section 35 of the CAA Ordinance. The submissions of the parties to the present case have, in this respect, centred on subsection 3 of that section which stipulates that, in the absence of a specific provision on appeal, decisions in matters concerning “the exercise of public authority in respect of an individual” may nevertheless be appealed to the Government. It follows from the applicants ’ submissions to the Court and the fact that they lodged an appeal against the CAA ’ s decision with the Government that, in their view, subsection 3 was applicable and that, accordingly the impugned decision was subject to appeal.

The Court reiterates that the six-month time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the final decision after the exhaustion of domestic remedies. However, only remedies which are normal and effective may be taken into account as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention. Thus, w here no effective remedy is available in respect of an act or a decision alleged to be in violation of the Convention, the time-limit in principle starts to run from the date on which the impugned act or decision took place or was issued . Nevertheless , special considerations may apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, that the remedy wa s ineffective. In that situation, the six - month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see , among other authorities, Aydın v. Turkey ( dec .), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000-III (extracts) , p. 373, and Fernie v. the United Kingdom ( dec .), no. 14881/04, 5 January 2006, unreported) .

The Court notes that it is, in the first place, the task of the national authorities to determine and apply domestic law and that, in stating that no appeal lay against the impugned decision of the CAA, the Government found section 35, subsection 3 of the CAA Ordinance to be inapplicable to the instant case. In principle, therefore, the six-month time-limit started to run on 10 December 1998 , the date of the CAA ’ s decision. Nevertheless, the Court must determine whether there are special considerations in the instant case which could give reason to calculate the six-month period from 28 February 2002 , the date of the Government ’ s decision.

In this respect, the Court reiterates that the regulation adopted by the CAA had a general character, establishing norms for air traffic charges to be imposed on flights in Swedish airspace and on landing and take off at State airports. Furthermore, while the regulation thus affected all airline companies utilising the designated airspace and airports, its application required implementation measures through the daily decisions taken by the CAA, levying charges in respect of each individual flight. The effect of the regulation on the airlines was thus only of an indirect nature.

In these circumstances, the Court finds that the impugned decision of 10 December 1998 cannot reasonably be considered to have involved “the exercise of public authority in respect of an individual”. Moreover, it should have been sufficiently clear to the applicants already at the time of their lodging the appeal with the Government that, consequently, section 35, subsection 3 of the CAA Ordinance was not applicable in the instant case and that the said appeal was an ineffective remedy.

In view of the above, the Court cannot find that there are any grounds for calculating the six-month period from the date of the Government ’ s decision to dismiss the applicants ’ appeal. Accordingly, the decision of the CAA of 10 December 1998 must be considered as the final decision in respect of the applicants ’ complaints under Article 13 of the Convention and Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, as well as their complaint under Article 6 of the Convention concerning access to court.

Consequently, even assuming that the impugned decision involved a determination of the applicants ’ civil rights or obligations, the present application, having been lodged on 27 August 2002, was submitted out of time in so far as it concerned the above complaints. The Government ’ s preliminary objection as to the six-month time-limit must therefore be accepted and this aspect of the case rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

In these circumstances and having regard to the conclusion below with regard to the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings, there is no reason for the Court to rule on the other preliminary objections raised by the Government.

B. The complaint concerning the length of the proceedings

The applicants complained that the length of the proceedings before the Government had been unreasonable. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government questioned whether the proceedings in question related to an obligation which was “civil” in nature, stating that the imposition of air traffic charges contained significant features of public law. They also claimed that Article 6 § 1 was inapplicable since only the norm, i.e. the regulation itself, had been challenged by the applicants and not its effects on an individual case. Thus, in the Government ’ s view, the present complaint was incompatible ratione materiae with the provisions of the Convention.

The applicants maintained that Article 6 § 1 was applicable. They stated, inter alia , that the dispute was pecuniary and thus “civil” in nature. Furthermore, the decision of the CAA had affected them directly and the dispute had thus been genuine and serious. The only reason for the appeal to the Government being “ineffective” was the State ’ s own failure to provide the applicants with an effective remedy to challenge the legality of the increase of the air traffic charges.

The Court reiterates that for Article 6 § 1, in its “civil” limb, to be applicable there must be a dispute over a “right” or an “obligation” that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious . It may relate not only to the actual existence of a right or an obligation but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for the civil right or obligation in question (see, among other authorities, Frydlender v. France [GC], no. 30979/96, § 27, ECHR 2000-VII).

The Court reiterates that no appeal lay against the decision of the CAA of 10 December 1998. Thus, whether or not that decision determined the applicants ’ civil rights or obligations, the appeal to the Government, as has been noted above, did not constitute a remedy capable of addressing their complaints against the decision. In these circumstances, the proceedings before the Government could not result in a determination of the applicants ’ civil rights or obligations and it cannot be said that the outcome of those proceedings was directly decisive for such rights or obligations. Accordingly, Article 6 § 1 was not applicable to the proceedings brought by the applicants.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President