CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)