CEDH · CASELAW;REPORTS;ENG — 6 mars 1990

.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 }    Application No. 12119/86     P.       against     SWEDEN                     REPORT OF THE COMMISSION   (adopted on 6 March 1990)     - i - 12119/86       TABLE OF CONTENTS                                                               page   I.       INTRODUCTION (paras. 1-16)                             1           A.   The application (paras. 2-4)                       1           B.   The proceedings (paras. 5-11)                      1           C.   The present Report (paras. 12-16)                  2     II.      ESTABLISHMENT OF THE FACTS (paras. 17-34)              3           A.   The particular circumstances of the case           3             (paras. 17-27)           B.   The relevant domestic law and practice             4             (paras. 28-34)     III.     OPINION OF THE COMMISSION (paras. 35-54)               6           A.   Point at issue (para. 35)                          6           B.   Article 6 of the Convention                        6             (paras. 36-53)               a.   Applicability of Article 6 para. 1             6                 (paras. 37-50)                   aa.   Was there a dispute regarding a           6                      "right"? (paras. 38-47)                   bb.   Was the right "civil" in character?       8                      (paras. 48-50)               b.   Compliance with Article 6 para. 1 of           8                 the Convention (paras. 51-53)            Conclusion (para. 54)                                 9             APPENDIX I       History of the proceedings                     10                 before the Commission   APPENDIX II      Decision on the admissibility                  11                 of the application   I.       INTRODUCTION     1.       The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.     A.       The application   2.       The applicant is a Swedish citizen born in 1959 and resident in Övertorneå.   The applicant is represented before the Commission by Mr.   Göran Ravnsborg, a university lecturer at the University of Lund.   3.       The application is directed against Sweden.   The respondent Government are represented by their Agent, Mr.   Hans Corell, Ambassador, Under-Secretary at the Ministry of Foreign Affairs, Stockholm.   4.       The case concerns the refusal of the Swedish administrative authorities to grant to the applicant, a taxi-owner, an exemption from the duty to belong to a dispatch exchange.   The applicant complains that he has no access to court in order to have the administrative decisions reviewed and alleges accordingly a violation of Article 6 para. 1 of the Convention.     B.       The proceedings   5.       The application was introduced on 17 October 1985 and registered on 14 April 1986.   6.       On 4 July 1988, the Commission decided, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit before 7 October 1988 their written observations on the admissibility and merits of the applicant's complaints under Articles 6, 11 and 14 of the Convention.   7.       The Government sent their written observations on 6 October 1988 and the applicant's observations in reply were received on 3 March 1989 after two extensions of the time-limit.   The applicant submitted supplementary observations on 26 August 1989.   8.       The Commission considered the application again on 6 September 1989 and declared admissible the applicant's complaints under Article 6 para. 1 of the Convention.   It declared the remainder of the application inadmissible.   9.       The parties were then invited to submit any additional observations or further evidence which they wished to put before the Commission.   10.      The Government informed the Commission on 8 December 1989 that they wished to submit no further observations.   No further observations were received from the applicant. 11.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.     C.       The present Report   12.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                MM. C.A. NØRGAARD, Président                  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                  H. VANDENBERGHE              Mme G.H. THUNE              Sir Basil HALL              MM. F. MARTINEZ                  C.L. ROZAKIS              Mme J. LIDDY              M.   L. LOUCAIDES   13.      The text of the Report was adopted by the Commission on 6 March 1990 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   14.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           1)   to establish the facts, and           2)   to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   15.      A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   16.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case   17.      The applicant is a self-employed taxi-owner.   18.      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 that he was refused an exemption from a legally imposed duty to belong to a common taxi dispatch exchange.   19.      On 1 February 1980 the County Administrative Board (länsstyrelsen) 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.   20.      On 5 October 1982, the County Administrative Board, in a decision concerning the organisation of the taxi traffic in the Övertorneå municipality, required 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.   21.      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).   22.      The applicant and Mr.   Thörmänen appealed to the Board of Transport (transportrådet) 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. 23.      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.   24.      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.   25.      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) and providing 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.   26.      The Government rejected the applicant's appeal on 25 April 1985.   27.      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.   B.       The relevant domestic law and practice   28.      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).   29.      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.   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 purpose of 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. 30.      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).   31.      The County Administrative Boards decide what specific conditions should be met under the licence.   32.      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.   As a last instance, the Government may review decisions of the Board of Transport.   33.      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.   34.      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.   Chapter 4 Section 10 reads:           (Swedish)           "Den som har tillstånd till beställningstrafik för         persontransporter med lättare fordon skall vara         ansluten till en beställningscentral, som är         gemensam för ett eller flera trafikområden.         Föreligger särskilda skäl får den tillståndsgivande         länsstyrelsen medge undantag från denna skyldighet."           (English translation)           "A person who has a licence for transportation of         passengers with lighter vehicles shall be affiliated         to a dispatch exchange, which is common for one or         more traffic zones.   Where there are special reasons         the County Administrative Board may grant an exemption         from this duty."   III.     OPINION OF THE COMMISSION     A.       Point at issue   35.      The only issue to be decided is whether or not Article 6 para. 1 (Art. 6-1) of the Convention is applicable in the present case and, if so, whether or not there has been a violation of that provision.     B.       Article 6 (Art. 6) of the Convention   36.      The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that no court remedy was available in respect of the refusal of the administrative authorities to grant him an exemption from the requirement to join a dispatch exchange.   The Government submit that this complaint falls outside the scope of Article 6. (Art. 6)    In case the Commission were to find that Article 6 para. 1 (Art. 6-1) applies in the case, they admit that the applicant could not take proceedings before a tribunal satisfying that provision.           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."   a.       Applicability of Article 6 para. 1 (Art. 6-1)   37.      The applicability of Article 6 para. 1 (Art. 6-1) of the Convention depends on whether the applicant was seeking the determination of a dispute (French: contestation) regarding a "right" and, if so, whether that "right" was "civil" in character.   aa.      Was there a dispute regarding a "right"?   38.      Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations") over "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law.   It does not in itself guarantee any particular content for "rights and obligations" in the substantive law of the Contracting States (cf. Eur.   Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).   On the other hand, it is not decisive whether a certain benefit, or possible claim, is characterised as a "right" under the domestic legal system.   This is so since the term "right" must be given an autonomous interpretation in the context of Article 6 para. 1 (Art. 6-1). In its Report in the case of W v. the United Kingdom (Comm.   Report 15.10.85, para. 115, Eur.   Court H.R., Series A no. 121-A, pp. 48-49) the Commission held that:           "Even where a benefit can be granted as a matter of discretion         rather than as a matter of right, a claim for such a benefit         may well be considered to fall within the ambit of (Article 6         para. 1 (Art. 6-1) )."   39.      It is established case-law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims that an interference by a public authority with his "civil rights" is unlawful the right to submit that claim to a tribunal satisfying the requirements of that provision (see Eur.   Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).   The claim or dispute must be "genuine and of a serious nature" (see e.g.   Eur.   Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).   The dispute may relate not only to the actual existence of a right but also to its scope or the manner in which it may be exercised.   The dispute may concern both questions of fact and questions of law (see e.g.   Eur.   Court H.R., Van Marle and Others judgment of 26 June 1984, Series A no. 101, p. 11, para. 32).   40.      The Government argue that the discretion of the County Administrative Board in granting exemptions is so wide that the applicant could not be said to have any "right" within the meaning of Article 6 (Art. 6).   41.      Pursuant to Chapter 4 Section 10 of the 1979 Ordinance a licence holder must belong to a common dispatch exchange.   The same provision authorises exemptions from this obligation where there are special reasons.   The public authorities therefore enjoy a wide discretion, and the question arises whether the applicants could, on arguable grounds, claim a right under Swedish law to obtain an exemption.   42.      In this connection, the Commission recalls the case of H. v. Belgium (Eur.   Court H.R., judgment of 30 November 1987, Series A no. 127, pp. 31-32, paras. 41-43), in which the European Court held that there was a dispute over a "right" under Belgian law when the Council of the Ordre des Avocats was called upon to decide whether there were "exceptional circumstances" which warranted the applicant's readmission as an avocat.   The Court noted that the term "exceptional circumstances" was capable of being interpreted and applied in a wide variety of ways (para. 42) and that the Council had some discretion in deciding whether the requirement of "exceptional circumstances" had been met (para. 43).   Nevertheless, the Court found that the applicant could arguably maintain that he satisfied that condition and that there was, therefore, a dispute over a "right" in the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 43).   43.      Similarly, in the case of the Estates of Mr. and Mrs.   Skärby and Others v.   Sweden (Comm.   Rep. 16.3.89) the Commission found that there was a dispute over a "right" under Swedish law with regard to a decision by a local Building Committee not to grant the applicants an exemption from the regulations in a building plan.   44.      The Commission finds that as in the case of H. v.   Belgium and the case of the Estates of Mr. and Mrs.   Skärby and Others, the discretion at issue in the present case was wide but not unlimited and had to be exercised in the framework of the applicable law.   In its judgment in the Pudas case (Eur.   Court H.R., Pudas judgment of 27 October 1987, Series A no. 125, pp. 40-41, paras. 32-34), the European Court stated that it followed from "generally recognised legal and administrative principles that the authorities did not have an unfettered discretion" when deciding whether or not to revoke a traffic licence.   45.      According to the said "legal and administrative principles", the County Administrative Board was obliged, when examining the applicant's request, to take all the different public and private interests involved into account as well as the general purposes of the applicable transportation legislation.   It also had the task to determine on this basis whether there were sufficient reasons for granting the request for an exemption.   It is also clear that the Board was under an obligation not to let its decision be influenced by any irrelevant considerations and to decide on the issue under a fair procedure and in accordance with general legal rules such as the obligation to give equal treatment to all citizens.   46.      In the present case, the applicant is of the opinion that if the Board had made a proper assessment of the different issues and interests involved, it should have granted the exemption requested. Consequently, he must be understood to claim that, in the circumstances, he had a right to obtain such exemption and that he was denied this right by the Board.   The applicant alleges that the Board's decision was not based on convincing reasons and breached the applicant's right to negative freedom of association.   47.      In these circumstances, the applicant's allegation is not only that the County Administrative Board exercised its discretion to his disadvantage but also that the Board took a decision which was contrary to Swedish law.   For these reasons the Commission finds that there existed a "serious" and "genuine" dispute over the applicant's "rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   bb.      Was the right "civil" in character?   48.      The Commission recalls that the character of the right to obtain a taxi licence has already been considered in the Pudas case (Eur.   Court H.R., Pudas judgment, loc. cit., pp. 15-16, paras. 35-38, Comm.   Report 4.12.85 in the same case annexed to the Pudas judgment, paras. 43-45, p. 25).   Both the Commission and the Court found that the licence was related to the applicant's exercise of his business activities as a taxi-owner and that the dispute accordingly concerned a "civil right".   49.      In the present case, the dispute concerns the requirement of the applicant to be affiliated to a taxi dispatch exchange.   The Commission, noting the costs involved for the affiliation (para. 27), finds that this issue is connected with the applicant's exercise of a commercial activity, carried out with the object of earning profits and based on a contractual relationship between the licence holder and his customers.   50.      Consequently, the Commission finds that the dispute concerns "civil" rights of the applicant and that Article 6 para. 1 (Art. 6-1) is applicable.   b.       Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   51.      The Commission has next examined whether the applicant had the possibility of submitting the dispute as to the exemption from the obligation to be affiliated to the dispatch exchange to a "tribunal" satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention.   52.      The Commission recalls that an appeal lay from the County Administrative Board to the Board of Transport and from there to the Government.   The Commission finds, and the Government do not dispute, that these proceedings did not satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission further recalls that the Government admit that the applicant was not entitled to take his complaints before a tribunal as required by Article 6 para. 1 (Art. 6-1).   The Commission finds that indeed no such remedy was available to the applicant.   53.      It follows that the applicant did not have at his disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) in respect of the dispute which arose over the refusal to grant him an exemption from the duty to belong to a dispatch exchange.             Conclusion   54.      The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.          Secretary to the Commission            President of the Commission                   (H.C. KRÜGER)                         (C.A. NØRGAARD)   Appendix I   HISTORY OF THE PROCEEDINGS        Date                                   Item ________________________________________________________________     17.10.85                         Introduction of the application   14.04.86                         Registration of the application     Examination of admissibility     04.07.88                         Commission's deliberations and                                 decision to invite the Government                                 to submit observations in writing   06.10.88                         Government's observations   03.03.89                         Applicant's reply   06.09.89                         Commission's deliberations and                                 decision to declare the application                                 partially admissible and partially                                 inadmissible     Examination of the merits     06.09.89                         Deliberations on the merits   09.12.89                         Commission's consideration of state                                 of proceedings   06.03.90                         Commission's deliberations on the                                 merits, final votes and adoption of                                 the Report