CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mars 1993

.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. 18436/91                       by M. and M.D.                       against Sweden           The European Commission of Human Rights sitting in private on 31 March 1993, the following members being present:              MM.    S. TRECHSEL, President of the Second Chamber                  G. JÖRUNDSSON                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  J.-C. GEUS                  M. NOWICKI              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 30 April 1991 by M. and M.D. against Sweden and registered on 2 July 1991 under file No. 18436/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The first applicant is a Swedish citizen, born in 1955. The second applicant, her husband, is a Swedish and Bulgarian citizen, born in 1938. They reside at Semmering, Austria.         The facts as presented by the applicants may be summarised as follows.         The applicants have two children, Johanna, born in 1975, and Alexander, born in 1977, who were pupils in the Swedish schools in Geneva and subsequently in Vienna. The applicants applied to the Swedish National School Board (Skolöverstyrelsen) for a state subsidy to their children's school education on the basis of Section 29 of the 1978 Ordinance on State Subsidies to Swedish School Education Abroad. (förordningen om statsbidrag till svensk undervisning i utlandet). According to this provision, a pupil in a Swedish school abroad or a pupil benefiting abroad from teaching by correspondence is eligible for a subsidy if, inter alia, at least one of the parents is a Swedish citizen and at least one of the parents resides abroad as employed by or as director of a Swedish enterprise, i.e. an enterprise which is a Swedish legal person. The applicants claimed that they resided abroad because of their enterprise. In this respect they have referred to a certificate of registration of 6 February 1975, showing that "Martin Denev's Research Institute" has been entered into the register of the County Administrative Board of Stockholm County (Länsstyrelsen i Stockholms län).         By decision of 2 February 1990, the National School Board decided not to grant the request, which in its decision was indicated as relating to "cost-free correspondence materials for Alexander and Johanna", the reason being that the eligibility criteria in Section 29 of the 1978 Ordinance were considered not to be satisfied.         The applicants appealed to the Supreme Administrative Court (Regeringsrätten). In its decision of 31 October 1990 the Supreme Administrative Court stated that, according to Section 1 of the Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut), it could only review the decision of the National School Board if it concerned a matter dealt with in Chapter 8 Section 2 or 3 of the Instrument of Government (regeringsformen).         The Court noted that the right to cost-free correspondence materials was not a matter covered by Chapter 8 Section 2 (which deals with provisions regarding an individual's personal status and about the personal and economic relations between individuals). As to Chapter 8 Section 3, the Supreme Administrative Court noted the following. The Section concerns provisions about the relations between individuals and the authorities in regard to obligations imposed on individuals or otherwise regarding interferences with the personal or economic conditions of individuals. It does not include such provisions about the relations between individuals and the authorities as merely give benefits to individuals or are of a neutral character. As provisions which give benefits to individuals are to be considered those which concern state subsidies to various activities. The Supreme Administrative Court considered that the provisions regulating the right to cost-free correspondence materials give benefits to individuals and therefore fall outside Chapter 8 Section 3 of the Instrument of Government.         The Supreme Administrative Court, accordingly, declared the applicants' appeal inadmissible.     COMPLAINT         The applicants complain of violations of Article 6 para. 1 of the Convention in that   (a)    they were denied the right to an impartial tribunal to test their       right to state subsidies for their children;   (b)    they were denied a fair examination of their right, as there was       no dialogue with them on why they did not satisfy the legal       requirements for state subsidies and as the decision of the       National School Board did not contain reasons or arguments.     THE LAW         The applicants complain of violations of Article 6 para. 1 (Art. 6-1) of the Convention in that they did not have access to an impartial tribunal in regard to their request for state subsidies to their children's school education and in that their request was not examined in a fair manner by the National School Board, which rejected their request without giving reasons or arguments.         Article 6 para. 1 (Art. 6-1) of the Convention provides, in its relevant parts, as follows:         "In the determination of his civil rights and obligations ...       everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law."         The first question which arises is therefore whether the rejection of the applicants' request for state subsidies determined their civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         In this regard, the Commission recalls that in the cases of Feldbrugge and Deumeland the European Court of Human Rights was called upon to examine whether the right to certain social benefits was to be regarded as a civil right within the meaning of Article 6 para. 1 (Art. 6-1) (Eur. Court H.R., Feldbrugge judgment of 29 May 1986, Series A no. 99, and Deumeland judgment of the same date, Series A no. 100). In these judgments, the Court examined the features of public law and those of private law which were inherent in the social security system involved, and it reached its conclusion on the basis of a consideration of whether the features of public law or of private law were predominant.         In the present case, the Commission notes that the system of state subsidies to school education abroad is predominantly, if not exclusively, of a public law character. The system is in no way based on specific contributions paid by the individuals concerned and bears no resemblance to a system of private insurance. Consequently, the Commission is of the opinion that the applicants' complaint does not relate to a civil right within the meaning of Article 6 para. 1 (Art. 6-1) and that the application must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Second Chamber        President of the Second Chamber               (K. ROGGE)                            (S. TRECHSEL)