CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 11960/86                       by Jon AXELSSON and Others                       against Sweden             The European Commission of Human Rights sitting in private on 13 July 1990, the following members being present:                MM.   J.A. FROWEIN, Acting President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                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 27 December 1986 by Jon AXELSSON and Others against Sweden and registered on 17 January 1986 under file No. 11960/86;           Having regard to   -        the reports provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the observations submitted by the respondent Government on 21 December 1989 and the observations in reply submitted by the applicants on 28 February 1988;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case may be summarised as follows:   Particular circumstances of the case           The applicants are the following four taxi owners, all Swedish citizens:           1.   Mr.   Jon Axelsson born in 1952 and resident of Malmö,         2.   Mr.   Roy Gasper born in 1940 and resident of Åkarp,         3.   Mr.   Lars-Erik Hjelm born in 1935 and resident of Malmö, and         4.   Mr.   Stig Nissen born in 1946 and resident of Vintrie.           Before the Commission the applicants are represented by Mr.   Göran Ravnsborg, a university lecturer at Lund.           The applicants have taxi permits for the Malmö (-Burlöv) taxi zone.   Since 1981 they have operated their own taxi company, 'Roystaxi'.   Mr.   Axelsson is also a member of MTEA, the Malmö Taxi Economic Association (Malmö Taxi Ekonomisk förening).           The applicants obtained their taxi permits in the 1970s and joined MTEA when it was the only taxi company in the Malmö (-Burlöv) taxi zone.   It ran the only taxi dispatch exchange in the area and since a dispatch exchange provides about 70 % of a taxi business, it was economically essential to join MTEA.           It was a term of the membership agreement with MTEA, as set out at Section 32, that:           "Disputes between the association and the board, or a         member thereof, or a member of the association shall         be submitted to settlement according to the current         Swedish law on arbitration."           In due course, all the applicants, with the exception of Mr.   Axelsson, left MTEA, after they had been excluded from use of the dispatch exchange for lengthy periods by MTEA.   Mr.   Axelsson was also stopped by MTEA from using the dispatch exchange.           In 1982, the applicants instituted proceedings against MTEA in the Malmö District Court (tingsrätt) for damages relating to the period for which, while still members, they were prevented from using the taxi dispatch exchange.   The proceedings were instituted by the first applicant on 2 June 1982 and he was joined by the second applicant on 11 November 1982 and the third and fourth applicants on 13 November 1982.   MTEA raised the defence that the Court could not deal with the actions because they were governed by the arbitration clause.   The District Court rejected this argument on 16 September 1983 after having held a hearing.           MTEA appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge which, without a public hearing, allowed MTEA's appeal and declared the arbitration clause applicable in a decision of 16 July 1984.   The applicants appealed on 8 August 1984 to the Supreme Court (högsta domstolen).           The applicants also claimed damages from the Government on the basis that the decision of the Court of Appeal interfered with their rights under Article 6 of the Convention.   The Government rejected this claim on 29 November 1984.         The Supreme Court refused the applicants leave to appeal on 18 December 1985.   Relevant domestic law and practice   Arbitration legislation           Swedish arbitration law appears in the 1929 Arbitration Act (lagen om skiljemän) and the 1929 Act Concerning Foreign Arbitration Agreements and Awards (lagen om utländska skiljeavtal och skiljedomar).           Section 1 of the 1929 Arbitration Act provides, inter alia:           "Any question in the nature of a civil matter which may be         settled by agreement, as well as any question of compensation         for damage resulting from a criminal offence may, when a         dispute has arisen with regard thereto, be referred by         agreement between the parties to the decision of one or more         arbitrators.   An arbitration agreement relating to any such         question may also have reference to future disputes arising         from a particular legal relationship specified in the         agreement."   Act on Economic Associations           According to Section 116 of the 1951 Act on Economic Associations (lagen om ekonomiska föreningar), a provision in the statutes of an association, which provides that disputes between the association and, e.g., the board, a member of the board, or a member of the association, shall be referred for settlement by one or more arbitrators, shall have the same effect as an arbitration agreement under the Arbitration Act.   Act on Contracts           Section 36 of the 1915 Act on Contracts (avtalslagen) provides that a provision of a contract may be modified or set aside if the provision is unreasonable, having regard to the contents of the contract, the circumstances as they were at the time of the conclusion of the contract, subsequent events and other circumstances.   Special account shall be taken of the need to protect a consumer or a contracting party, considered as the weaker party to the contract.   Judicial procedure           Procedural hindrances           Provisions on procedural hindrances are laid down in Chapter 34 of the Code of Judicial Procedure (rättegångsbalken).           According to Section 1 the court shall consider any hindrance to the proceedings as soon as there are reasons to do so.   In the absence of a provision to the contrary, the court shall take notice of the procedural hindrances on its own motion.           An agreement between the parties that the dispute in question shall be dealt with by arbitrators constitutes a procedural hindrance which means that the court has to decline jurisdiction and dismiss the action.   According to the case-law, this procedural hindrance is optional, i.e. the court shall not take notice of it unless one of the parties requests the dismissal of the case on the basis of the arbitration agreement.           According to Section 2, any party who wishes to object to the competence of the court, shall do so when he makes his first appearance in the action or, if he is prevented from doing so by circumstances which constitute a legally valid excuse, as soon as possible after the excuse has ceased to exist.   A party who fails to object within the time prescribed, loses the right to raise the objection.   If a party has made a timely objection pursuant to Section 2, the court shall, in accordance with Section 3, make a separate decision thereon as soon as possible.           The matter may be dealt with entirely in writing or in writing combined with a preparatory hearing (Chapter 42 Section 13).           If the court declines jurisdiction owing to e.g. an arbitration clause, the plaintiff may appeal against that decision. Such an appeal shall be brought in the form of a so called limited appeal to the Court of Appeal.           If the court has overruled an objection based upon an alleged procedural hindrance, a party desiring to appeal must give a formal notice of exception immediately if the order is pronounced at a hearing and, otherwise, within a week of service of the decision upon him.   If a timely exception is given, the court shall, depending on the circumstances, decide whether an appeal shall be lodged separately or only in conjunction with an appeal against the judgment on the merits of the case.   Such a separate appeal shall also be brought in the form of a limited appeal (Chapter 49 Section 3).           Limited appeal           The provisions on limited appeals are found in Chapter 52 of the Code of Judicial Procedure.           If it is found that the adverse party should be given an opportunity to respond to the limited appeal petition, the Court of Appeal shall, according to Chapter 52 Section 7, serve the petition and the documents annexed thereto upon the adverse party with a notice directing him to file a written answer.   Unless an opportunity to respond has been given to the adverse party, the decision appealed against may not be changed to his disadvantage.           When an answer is filed, the Court of Appeal may order a further exchange of written submissions, if the Court finds this necessary.   The Court may issue detailed regulations as to the exchange of submissions and specify the issues upon which the parties shall make observations.   However, a party may not be directed to file more than one set of written submissions unless there are special reasons therefor (Section 9).           Section 10 provides, inter alia, that:           "Where it is required for the purposes of the investigation         of a case that a party or other person be heard orally by         the Court of Appeal, the Court of Appeal shall decide on         such a hearing as it sees fit."           The provisions on limited appeals are applicable in respect of appeals against court decisions rendered in the course of pending proceedings, where such a separate appeal is allowed.   These provisions apply to criminal as well as to civil proceedings.   They are also applicable in respect of final decisions taken by the lower court, e.g. when a district court decides to dismiss the case, owing to an arbitration clause or the plaintiff's withdrawal of the action.           The limited appeal procedure is simpler than the procedure for regular appeals, the reason being, inter alia, that procedural matters are deemed to be less complicated than a determination on the merits of the case.           As a rule, the limited appeal procedure is entirely in writing.   The Court of Appeal determines the matter on the basis of the case file, which includes the case file of the lower court, the petition from the appellant and, frequently, written observations from the adverse party.           An oral hearing may be held but such hearings are rare.   They also differ from main hearings in regular appeal proceedings, since the case is not comprehensively dealt with at the hearing, and what has been said at the hearing does not form the exclusive basis of the decision to be taken by the Court of Appeal.   If, for instance, the reason why the Court of Appeal directs a hearing is that an oral hearing of a witness is deemed necessary, the parties will not necessarily be given an opportunity to plead the case orally as well. The Court of Appeal may give the parties an opportunity to question the witness and to submit their final pleadings in writing.   In this procedure, the Court of Appeal is always called upon also to take into consideration the information found in the case file when determining the case.   COMPLAINTS           The applicants complain under Article 6 of the Convention. Their complaint is two-fold.   On the one hand they complain about the contents of the courts' decisions.   They submit that under Swedish law, having regard to the terms of MTEA's regulations and in particular the terms of the section relating to arbitration, the arbitration clause is not applicable and that they have been deprived of the opportunity to have a civil right determined by a court of law. On the other hand they complain that the legal procedure before the Court of Appeal and the Supreme Court did not comply with the requirements of Article 6 of the Convention.   They point out in particular that no public hearing was held before the Court of Appeal or the Supreme Court.   They also complain of the length of time taken in reaching the decisions.           The applicants also complain about the decision of the Government of 29 November 1984, when their claim for compensation from the State was rejected.   They claim that this is a further violation of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 27 December 1984 and registered on 17 January 1986.   The Commission decided on 5 October 1987 to bring the application to the notice of the respondent Government and invite them to submit observations on its admissibility and merits.           The Government's observations were submitted on 21 December 1987 and the applicants' observations in reply were submitted on 29 February 1988.           On 8 December 1988, the Commission decided to adjourn the examination of the application pending the outcome of the case of Håkansson and Sturesson before the European Court.   On 21 February 1990, the Court gave its judgment in that case (Eur.   Court H.R., Håkansson and Sturesson judgment, Series A No. 171).   By letter dated 14 March 1990, the applicant made further observations on the case in the light of the Court's judgment.   THE LAW   1.       The applicants complain of being denied access to court in respect of their dispute with MTEA.   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."           The case-law of the Commission and the Court establishes that Article 6 para. 1 (Art. 6-1) of the Convention guarantees to litigants effective access to court in the determination of their "civil rights and obligations" (see e.g. Eur. Court H.R., Golder judgment of 21 February 1975, Series A No. 18, p. 18, para. 36 and Airey judgment of 9 October 1979, Series A No. 32, pp. 14-16, para. 26).           The Commission considers that the dispute between MTEA and the applicants, which related to a private contractual relationship of importance to the applicants' business activities, concerned "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           As stated by the Court in the Golder case (loc. cit., pp. 18-20, paras. 37-40; see also Eur. Court H.R., Ashingdane judgment of 28 May 1985, Series A No. 93, pp. 23-26, paras. 53-59) the right of access to the courts is not absolute.   In the majority of the Contracting States, the right of access to courts is restricted or subject to special conditions in respect of minors, vexatious litigants, persons of unsound mind, persons declared bankrupts and, as in this case, persons who are bound by an arbitration agreement.   Such regulations are not in principle contrary to Article 6 (Art. 6) of the Convention, where the aim pursued is legitimate and the means employed to achieve the aim is proportionate.           The Commission notes that insofar as arbitration is based on agreements between the parties to the dispute, it is a natural consequence of their right to regulate their mutual relations as they see fit.   From a more general perspective, arbitration procedures can also be said to pursue the legitimate aim of encouraging non-judicial settlements and of relieving the courts of an excessive burden of cases.   The Commission finds no indication that the dispute between the applicants and MTEA involved any issues of public interest which would have made an arbitration inappropriate or unreasonable.           The Commission recalls that in the present case the Swedish courts found that the applicants were bound by the arbitration clause, which was part of the agreement which they had entered into with MTEA. In these circumstances, the Commission finds that the applicants must be regarded as having themselves renounced a court procedure.           The Commission consequently finds that in this respect there has been no violation of Article 6 para. 1 (Art. 6-1) 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.   2.       The applicants have complained of being deprived of a public hearing before the Court of Appeal contrary to Article 6 para. 1 (Art. 6-1) of the Convention in the proceedings regarding the applicability of the arbitration clause.   The Commission does not find it necessary to determine whether these proceedings concerned the determination of a civil right, since in any case the complaint is inadmissible on another ground.           The Court has emphasised that the public character of court hearings constitutes a fundamental principle enshrined in Article 6 para. 1 (Art. 6-1).   It has also stated that neither the letter nor spirit of the provision prevents a person from waiving of his own free will, either tacitly or expressly, the entitlement to a public hearing.   A waiver must, however, be made in an unequivocal manner and not run counter to any important public interest (see e.g.   Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series A No. 171, para. 66).           The Commission notes that in the present case the Swedish law expressly provided for the possibility of holding public hearings. The Code of Judicial Procedure gave the Court of Appeal the power to hold public hearings where this was required for the purpose of the investigation.   Having regard to the facts of the present case and the possibility for a court to hold a hearing under Chapter 52 Section 10 of the Code of Judicial Procedure, the Commission considers that the applicants could have been expected to ask for a hearing if they had found it important that one be held.   The Commission refers to the Court's judgment in the Håkansson and Sturesson case where a similar complaint was made (above-mentioned Håkansson and Sturesson judgment, paras. 67-68).   By not requesting a hearing in the present case, the Commission finds that the applicants must be considered to have unequivocally waived their right under Article 6 (Art. 6) of the Convention to a public hearing before the Court of Appeal.   The Commission furthermore finds no indication that the litigation involved any issues of public interest which could have rendered a public hearing necessary irrespective of the applicants' request.           Consequently the Commission concludes that in this respect there has been no violation of Article 6 para. 1 (Art. 6-1) 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.   3.       The applicants have further complained in the context of Article 6 para. 1 (Art. 6-1) of the Convention of the decisions of the courts themselves, of the delay in reaching the decisions and of the decision of the Government rejecting their claim for compensation.           With regard to the judicial decisions of which the applicants complain, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           The Commission finds no indication that the decisions of the courts were in any way arbitrary or unreasonable or contrary to Swedish law.   The mere fact that the courts reached a decision with which the applicants strongly disagreed is not sufficient to substantiate a complaint of not receiving a fair hearing contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           As regards the applicants' complaint of delay, the Commission recalls that the applicants instituted the proceedings in June 1982 at the earliest and that the District Court gave its decision on 16 September 1983.   The Court of Appeal allowed MTEA's appeal on 16 July 1984 and the Supreme Court dismissed the applicants' appeal on 18 December 1985.   The proceedings therefore lasted approximately three and a half years.   In the circumstances of the present case, the Commission finds that the duration of the proceedings was not unreasonable.           As regards the applicants remaining complaints, the Commission finds, on examination of the application, that they disclose no appearance of a violation of the Convention.           It follows the this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.             Secretary to the                     Acting President         the Commission                       of the Commission                (H.C. KRÜGER)                        (J.A. FROWEIN)