CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1991

.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. 14282/88                       by Lennart and Gunny ZANDER                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 14 October 1991, the following members being present:                 MM. S. TRECHSEL, President of the Second Chamber                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS              Mrs.   G.H. THUNE              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              Mr.   M.P. PELLONPÄÄ                Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 2 September 1988 by Lennart and Gunny ZANDER against Sweden and registered on 12 October 1988 under file No. 14282/88;           Having regard to:   -        the report provided for in Rule 47 of the Rules of Procedure of the Commission;   -        the Commission's decision of 5 November 1990 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits;   -        the observations submitted by the respondent Government on 23 January and 25 April 1991 and the observations in reply submitted by the applicant on 22 March 1991;   -        the Commission's decision of 9 April 1991 referring the application to the Second Chamber;           Having deliberated;           Decides as follows:   THE FACTS           The applicants are Swedish citizens, resident at Västerås. Before the Commission they are represented by Mr.   Staffan Michelson, a lawyer practising in Stockholm.           The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case           The applicants own a property in Gryta in the municipality of Västerås adjacent to a property on which a company takes care of and treats refuse from inter alia households and industries.   A permit for such activities was granted to the company by the National Licensing Board for Environment Protection (koncessionsnämnden för miljöskydd, hereinafter "the Licensing Board") on 1 July 1983 under the 1969 Environment Protection Act (miljöskyddslagen, hereinafter "the 1969 Act").           In 1979 it had been discovered in a police investigation that refuse containing cyanide had been tipped on the dump.   Following analyses of the drinking water showing excessive occurrence of cyanide in a well adjacent to the dump the Health Care Board (hälsovårds- nämnden) of Västerås prohibited the property owner from using the water.   He was then provided with drinking water by the municipality. New analyses of the water were carried out in 1983 showing excessive occurrence of cyanide also in other wells around the dump.   In October 1983 the Environment and Health Care Board (miljö- och hälsoskydds- nämnden) of Västerås prohibited the water in the wells from being used for drinking and preparation of food.   In June 1984 the limit of cyanide allowed was raised and in February 1985 the property owners stopped receiving municipal drinking water.           By decision of 13 March 1987 the Licensing Board granted the company a permit to take care of untreated household refuse also after 1986.   The company was furthermore allowed to store ashes and slag from three further refuse combustion plants.   The previous permit allowed the storing of such refuse from one plant.   Finally, the company was allowed to extend the area for storing cinders.   Being of the opinion that the increased activities involved a risk that their drinking- water would be polluted in particular by cyanide because of leakage from the dump, the applicants together with other property owners had requested that the permit contain a condition or precautionary measure under Section 5 of the 1969 Act to the effect that the company be obliged to supply eleven property owners with municipal drinking- water.           This request was rejected, as the alleged connection between the activities on the dump and the occurrence of cyanide was considered unlikely.   The Licensing Board further considered that, notwithstanding the possible risk of pollution, it would have been unreasonable to order the company to take such a general precautionary measure.   However, the Licensing Board ordered that the water in the wells should be continuously analysed and the owners be informed of the results.   If suspicions would arise that the water was being polluted by the dump the company was immediately to comply with any orders issued by the County Administrative Board (länsstyrelsen) to supply the property owners with drinking water.           The applicants appealed to the Government which rejected the appeal on 17 March 1988. Relevant domestic law           According to Section 1 of the 1969 Act any use of land that may cause pollution of inter alia water or air is defined as environmentally hazardous activity.   Section 5 imposes an obligation on those who carry out or intend to carry out such an activity to prevent or remedy, by taking protective or precautionary measures or by tolerating restrictions, detrimental effects of that activity.   Regard should be had to both public and private interests.   According to Section 10 the Government may decide that certain types of environmentally hazardous activity shall not be allowed and that an already established activity may not be altered in a way which could cause increased or new detriment or significant disturbance unless the Licensing Board has issued a permit under the 1969 Act.   Such a requirement may be found in Sections 3 and 5 of the 1989 Environment Protection Ordinance (miljöskyddsförordningen, hereinafter "the 1989 Ordinance).           The Licensing Board is composed of a chairman and three other members.   The chairman shall be well-versed in legal matters and experienced in performing judicial tasks.   The other members must have experience from matters falling within the sphere of the National Environment Protection Board's (Naturvårdsverket) activities, of technical matters and of industrial operations, respectively.   All members are nominated by the Government (Section 11 of the 1969 Act).           When a permit is issued according to Section 10 of the 1969 Act the environmentally hazardous activity itself and the conditions prescribed for the activity shall be specified in detail (Section 18). Any concerned party may lodge an appeal with the Government against the decisions of the Licensing Board (Section 48).           The 1969 Act also provides a possibility to file a claim on the grounds of environmentally hazardous activity (Section 34).   Such claims shall be filed with a Real Estate Court (fastighetsdomstol), a specially composed District Court (tingsrätt), and may inter alia aim at obtaining a ruling obliging the person or company concerned to take protective or precautionary measures in order to continue the activity in question.   However, such a claim has no impact on the environmentally hazardous activity as such, as under Section 22 an activity which has been permitted under the 1969 Act may not be ordered to be discontinued under a provision in that Act, neither may precautionary measures be imposed to a further extent than what has been stated in the permit.   Exceptions are to be found in Sections 23-25, 29 and 40.   None of those provisions are relevant in the present case.           According to Section 3 of the 1986 Environmental Damage Act (miljöskadelagen, hereinafter "the 1986 Act") damage or injury caused inter alia by pollution of ground water and water courses entitles the damaged or injured party to compensation provided that a substantial probability of a causal connection has been established.   The liability to pay compensation is imposed on those who carry on or cause deleterious activities to be carried on (Section 6).   The Real Estate Court may grant a claim for compensation, even if the activity has been permitted under the 1969 Act.   The decision of that court can be brought before a Court of Appeal (hovrätt) and ultimately, with leave to appeal, before the Supreme Court (Högsta domstolen).   COMPLAINTS           The applicants complain that they had no right to have their civil rights determined by a court.   They refer to Section 22 of the 1969 Act and allege a violation of Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 2 September 1988 and registered on 12 October 1988.           On 5 November 1990 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits.           The Government's observations were submitted on 23 January 1991.   Following an extension of the time-limit the applicants' observations in reply were submitted on 22 March 1991.   Additional observations were submitted by the Government on 25 April 1991.           On 9 April 1991 the Commission decided to refer the application to the Second Chamber.     THE LAW           The applicants complain that they had no right to have their civil rights determined by a court.   They refer to Section 22 of the 1969 Act and allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which reads, insofar as it is relevant:   "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ..."           The Government submit that the application is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2). The applicability of Article 6 para. 1 (Art. 6-1) of the Convention   extends only to disputes over "civil rights and obligations" which can   be said, at least on arguable grounds, to be recognised under domestic   law.   The dispute must be genuine and of a serious nature.   The present application is based on the assumption that a civil right of the applicants was determined when the Licensing Board and the Government    considered the license matter.   However, there is no right under Swedish law to be kept absolutely safe from or to obtain compensation    for risks caused by environmentally hazardous activities.   Had the   applicants been injured or their property damaged they would have had    a right to compensation under the 1986 Act in accordance with a procedure satisfying the requirements in Article 6 (Art. 6) of the Convention.    Thus, the difference in the assessment of the risk between, on the one   hand, the applicants and, on the other hand, the Licensing Board and the Government was not decisive for any rights of the applicants.   The   applicants could not maintain, on arguable grounds, that they were   entitled to have the risk of any environmentally hazarduous activity excluded, nor was there any such risk at hand.   Thus, there was no   dispute over a "right".   Moreover, a careful consideration of the    impact of the dump on the applicants' water supply was carried   out in the administrative proceedings.   In their decision of 17 March    1988 the Government noted an opinion of the Geological Survey of Sweden (Sveriges geologiska undersökning) according to which it did not seem likely that water from the dump had polluted or could pollute   the drinking water.   The Government further decided that there should    be continuous control by means of thorough examinations in order to detect the possible existence of any detrimental effect on the drinking water.   If such a control gives rise to a suspicion that the drinking water is being negatively affected by the dump, the company has an obligation to supply the property owners with household water acceptable from the point of view of health.           Should the Commission find that the proceedings were decisive for any right of the applicants under Swedish law, the Government reserve their position as to whether such a right should be considered to be of a "civil" character.           The applicants contend that there was a concrete and genuine dispute regarding the risk of further pollution of their drinking water, as it had already been proved that it contained cyanide which most likely originated from the dump.   One of the most fundamental aims of the 1969 Act is to guarantee the individuals their right to protection from such a risk.   The assessment of the risk as made by the administrative authorities was directly decisive for the applicants' rights.   The Geological Survey of Sweden is directly subordinated to and dependent on the Government and the investigations carried out by that organ were rudimentary.   Under Swedish law the applicants were entitled to protection from encroachment and detriment caused by hazardous activities.   However, a permit for such activities had been granted by the Licensing Board and, according to Section 22 of the 1969 Act, they could not submit such a claim to a court.           The Commission considers that the issues to be determined are whether the decision to grant a permit to increase the activities on the dump was decisive for the applicants' "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and, if so, whether a genuine and serious dispute arose between the applicants and the Swedish authorities in relation to that decision.   In the affirmative,   it would have to be determined whether the applicants had at their   disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) of the Convention in regard to that dispute.           The Commission considers that these issues require an examination of the merits of the case.   It follows that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.           For these reasons, the Commission, unanimously,           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Secretary to the Second Chamber           President of the Second Chamber                 (K. ROGGE)                               (S. TRECHSEL)