CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 1996

.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. 26265/95                       by Wilhelm and subsequently Gunvor GÜNTHER                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 27 November 1996, the following members being present:                Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                Ms.    M.-T. SCHOEPFER, Secretary to the 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 1 December 1994 by Wilhelm and subsequently Gunvor Günther against Sweden and registered on 23 January 1995 under file No. 26265/95;         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 applicant was a Swedish citizen, born in 1919 and resident at Munkedal. He was the owner of "Brålands Laxfiske", an establishment selling licences for angling of salmon and offering other services for anglers. He had the full financial responsibility for the business (enskild firma). The applicant died in 1996. In November 1996 the Commission was informed that his widow, Mrs. Gunvor Günther, born in 1920, wished to take over the application.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant was the owner of real property, Bråland 3:18, this plot having been split from a larger plot, Bråland 3:1, on account of its suitability for recreational and notably angling purposes. Bråland 3:18 has an almost 2 km long bank stretching along the Örekil river (Örekilsälven). The fishing rights along that bank were initially somewhat unclear and subject to certain disputes. After extensive research and negotiations the applicant, in the 1960's, obtained recognition of his exclusive fishing rights and began selling licences for angling of salmon in the area.         In 1986 the municipalities of Munkedal and Dals Ed requested the County Administrative Board of Göteborg and Bohus län (länsstyrelsen i Göteborgs och Bohus län) to create a fishery conservation area (fiskevårdsområde) in the Örekil river, its tributaries and Lake Kärnsjön. The area was to include, inter alia, Bråland 3:18. In 1988 the Board created two such areas and began planning a third area which would have included the area where the applicant had fishing rights. He then requested that it be excluded from the conservation area or, alternatively, that the statutes of the fishery conservation association (fiskevårdsområdesförening) - which by law was to be established for the purposes of administering the area - should guarantee his exclusive right to sell fishing licences for angling in that area.         On 31 August 1990 the County Administrative Board created the third fishery area. It recalled that under the 1981 Act on Fishery Conservation Areas (1981:533) and its preparatory works such an area could not be established, if the holders of the fishing rights more commonly objected thereto and provided they had significant reasons therefor. Particular regard was to be had to the opinion of those owners who made use of the fishing for their livelihood.         The Board noted that the Örekil river was unique both for preserving the fish stock and for angling. A conservation area was necessary so as to further coordinate the fishing and the preservation of the fish stock and serve the joint interests of the owners of the fishing rights. The Board noted, inter alia, that Bråland 3:18 stretched along almost 2 kilometres of the river; that the property boundary followed the middle of the river bed; and that it had been questioned whether an angler on Bråland 3:18 was entitled to fish also in the other half of the river bed. The overall circumstances warranted the inclusion of the applicant's area in the conservation area.         The Board found that the aims which the creation of a conservation area sought to pursue would be seriously jeopardised if an owner of fishing rights were to be granted an exclusive right to sell licences for angling from his area. It was true that the applicant had been receiving a certain income from licensing angling from his area. He had not, however, shown how significant this income had been for his livelihood.         Adopting the statutes of the conservation area, the Board finally noted that the applicant could veto any intended sale of fishing licences for angling in his fishing waters. (According to section 8, subsection 2 of the 1981 Act, a fishery conservation association cannot give up a person's fishing rights without his consent, unless those rights have no importance for his livelihood.)         The applicant appealed to the Administrative Court of Appeal (kammarrätten) of Gothenburg, arguing that the decision was in violation of chapter 2, section 18 of the Instrument of Government (Regeringsformen) and Article 1 of Protocol No. 1 to the Convention. According to the Instrument of Government, every citizen whose property was taken away either through expropriation or by virtue of any other similar interference was entitled to compensation for his loss under terms laid down by law. He submitted that the 1986 taxation value of Bråland 3:18 had been 841.000 SEK, of which 450.000 had corresponded to the value of the angling of salmon. In 1986 his turnover from the sale of licences for angling had been some 60.000 SEK. Since then it had increased to some 100.000 SEK. The taxation value of the angling was therefore expected to rise up to 1.000.000 SEK. For 25 years he had invested considerable sums in order to provide the possibility of angling from his property. In the whole river his fishing water was the most attractive one for anglers both in terms of its accessibility and scenery. The principal part of the angling in the river had therefore always taken place from his property.         The applicant furthermore argued that his right to veto any sale of licences for angling from his property was de facto meaningless, as such a veto would not make him entitled to sell licences on his own. Moreover, the fishing water off Bråland 3:18 could without any difficulty be preserved and administered separately from the remaining waters within the conservation area. Should the County Administrative Board's decision be upheld, he would lose a significant part of his livelihood without being entitled to any compensation.         The applicant also adduced an opinion by Professor Gunnar Bramstång, an expert in public law. Professor Bramstång concluded, inter alia, that the applicant was entitled to compensation for the interference with his property rights. This could be done, for instance, by guaranteeing to the applicant a share of the conservation association's total income which would correspond to his previous income from the sale of licences and his other related activities. Professor Bramstång also questioned whether there was a sufficient public interest in creating a conservation area under the terms approved by the County Administrative Board, given that the public already had significant access to the fishing waters in question and the measures so far taken for safeguarding the fish therein had met with no real criticism. He recalled that the creation of a conservation area should primarily pursue the joint interests of the owners of the fishing waters.         The National Board of Fisheries (Fiskeriverket) objected to the applicant's appeal, recalling that it had designated the Örekil river as one of the most important angling waters. The National Environment Protection Board (Naturvårdsverket) had designated it as a "nationally interesting" river. Out of public means some 20.000.000 SEK had been invested in safeguarding the fish stock. The County Administrative Board recalled that three further fishery areas affecting the Örekil river had been created in the neighbouring Älvsborg County. A plan for the regulation of the fishery was being envisaged for the whole river.         In his rejoinder the applicant recalled a significant number of measures which he had initiated as from the late 1950's in order to improve the conditions for the fish in the river. His activities and investment had by no means endangered the fish stock, but on the contrary significantly contributed to the successful return of salmon into the river.         On 30 December 1992 the Administrative Court of Appeal rejected the applicant's appeal after having held an oral hearing and an inspection. The Court essentially agreed with the reasoning in the County Administrative Board's decision. It noted, inter alia, that the fishing rights attached to the applicant's property concerned half of the river on a stretch of a little less than two kilometres. The Court's inspection had revealed that along this stretch the river was not particularly wide. It would therefore seem more or less impossible to fish salmon and salmon-trout from the applicant's property without violating the fishing rights attached to the properties on the opposite side of the river. It could therefore seriously be doubted whether it was possible for the applicant to license fishing from his property without the consent of the holders of the last-mentioned fishing rights. The Administrative Court of Appeal did not pronounce itself in regard to the compensation issue, nor on the Convention issue or the opinion submitted by Professor Bramstång.         In his request for leave to appeal to the Supreme Administrative Court (Regeringsrätten) the applicant stressed, inter alia, that no balancing of interests had been carried out by the Administrative Court of Appeal. Among the holders of fishing rights within the conservation area he was the only one to have made significant investments so as to safeguard the fish stock and improve the fishery; the only one to have a solid clientele of anglers and the only one to be dependent on the sale of licences for his livelihood         On 9 June 1994 the Supreme Administrative Court refused him leave to appeal.         Under section 6 of the 1981 Act the views of those who are most affected by the creation of a fishery conservation area shall be given priority, unless the creation thereof is particularly important.   COMPLAINTS         The applicant complained that the establishment of the fishery conservation area and related association amounted to a de facto expropriation of his possessions. His loss of the right to sell licences for angling had deprived him of his livelihood. The fishery conservation association's sale of fishing licences for the total waters of the fishery area would have entitled him to a yield based on his share of the waters, i.e. some 10 %. This was supposed to correspond to a loss of at least 80 % of his income from his licensing of his own fishing water. The deprivation of this licensing-right had also considerably reduced the value of his property Bråland 3:18. He had not been entitled to any compensation. The conservation area had not been created in order to regulate fishery but so as to enable other owners of fishing rights to make a larger profit at the applicant's expense.         The applicant invoked Article 1 of Protocol No. 1 in conjunction with Articles 17 and 18 of the Convention.   THE LAW   1.     The Commission recalls that close relatives of a deceased applicant are in principle entitled to take his or her place in the proceedings before the Convention organs (see, e.g., Eur. Court HR, Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287, pp. 4-15, paras. 31-32 with further references; No. 25758/94, Dec. 7.3.96). In the circumstances of the present case the Commission therefore accepts that Mr. Günther's wife may pursue the application on his behalf.   2.     The applicant complained that his loss of the right to sell licences for fishing in his own waters deprived him of his livelihood and considerably reduced the value of his property. His property had therefore de facto been expropriated. He principally invoked Article 1 of Protocol No. 1 (P1-1) to the Convention which reads as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions. No one shall be deprived of       his possessions except in the public interest and subject       to the conditions provided for by law and by the general       principles of international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         The Commission recalls that Article 1 of Protocol No. 1 (P1-1) comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, e.g., Eur. Court HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 14, para. 41).         Finally, the proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with his or her rights under Article 1 of Protocol No. 1 (P1-1). In ascertaining whether this condition has been satisfied a comprehensive view must be taken of the applicable procedures (see, e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 21, para. 49). "Deprivation" of property within the meaning of Article 1 of Protocol No. 1 (P1-1) is not limited to cases where property is formally expropriated, i.e. where there is a transfer of the title to the property. "Deprivation" may also exist where the measure complained of affects the substance of the property to such a degree that there has been a de facto expropriation (see, e.g., Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A No. 52, pp. 24-25, para. 63).         The Commission has held that the impossibility of excluding others from fishing with a hand-held tackle in private waters did not have such severe consequences for their owner that it amounted to a de facto deprivation. Although the owner was not compensated for the control of the use of his property, the Commission accepted that this interference was proportionate, since his situation resulted from a legislative measure and he had not previously derived any income from hand-held tackle fishing. If he had derived such income from the fishing, he would also have had a remedy for seeking compensation (see No. 11763/85, Dec. 9.3.89, D.R. 60 pp. 128, 140-143).         The Commission notes that the applicant lost his right to license fishing in his waters, though having been recognised by the authorities as being dependent on the income from that licensing for his livelihood. He was not formally deprived of his property nor of his right to fish within his own part of the river. However, his right to licence fishing was one facet of his property rights and in his particular case the related economic interests arguably constituted - together with his clientele - "possessions" for the purposes of Article 1 of the Protocol No. 1 (P1-1) (cf., Eur. Court HR, Van Marle and Others v. the Netherlands judgment of 26 June 1986, Series A no. 101, p. 13, paras. 41-42).         The Commission observes, however, that as a member of the fishery conservation association the applicant became entitled to receive a yield on the association's sale of fishing-licences which is proportionate to his respective share of the overall conservation area. The interference in question did not restrict any of the other rights stemming from his ownership of the property. Thus the interference at issue did not deprive him of all meaningful use of his property (see Eur. Court HR, Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A No. 159, pp. 21-22, paras. 52-53; the above-mentioned Fredin judgment, p. 15, paras. 45-47; Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A No. 222, p. 25, para. 56; a contrario, Papamichalopoulos and Others v. Greece judgment of 24 June 1993, Series A No. 260-B, p. 70, para. 45).         In these circumstances the Commission cannot find that the applicant's loss of his right to license fishing within his own part of the river constituted a de facto deprivation of his "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1). The interference is rather to be regarded as a control of the use of his property within the meaning of the second paragraph of that provision.         The Commission recalls that its power to review compliance with domestic law is limited (see, e.g., the above-mentioned Fredin judgment, pp. 16-17, para. 50). It cannot find any indication that the interference with the applicant's property rights was not in accordance with the law.         The notion of the "general interest" leaves a wide margin of appreciation to the national authorities. The Convention organs will therefore respect the authorities' judgment as to what is a "general interest" unless that judgment is manifestly without reasonable foundation (see Eur. Court HR, James and Others v. the United Kingdom judgment of 21 February 1986, Series A No. 98, p. 32, para. 46). For instance, the protection of the environment is an increasingly important consideration (see the above-mentioned Fredin judgment, p. 16, para. 48).          The Commission finds no indication that the applicant's licensing of fishing in his own section of the river had jeopardised the fish stock in what eventually became the fishery conservation area. On the contrary, he seems to have contributed to the improvement of the fishery. The Commission can nevertheless accept that the creation of the conservation area, including also the applicant's property, pursued a legitimate aim in the general interest as it sought to coordinate the fishery and the selling of fishing licences.         When assessing the proportionality of the interference, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, e.g., the above-mentioned Fredin judgment, pp. 17 et seq., paras. 51 et seq.). The requisite balance will not be found if the person has to bear an individual and excessive burden (see, e.g., the above-mentioned James and Others judgment, p. 34, para. 50). The Commission would not exclude that although a right to compensation is not inherent in the second paragraph of Article 1 (Art. 1-2), such compensation could nevertheless be called for in a case where the control of use has sufficiently severe economic consequences for the property owner.         The Commission notes that Swedish law would not have prevented the adoption of statutes entitling the applicant to a proportionately higher share of the yield on the income from the association's licensing of fishing within the whole conservation area. Nor would it have prevented guaranteeing him his continued right to license angling from his own property. Such a measure could effectively have amounted to "compensation" for the interference. However, the Commission accepts that such a solution was rejected by the national authorities on arguable grounds, a measure which must be considered to remain within the respondent State's margin of appreciation (cf. Eur. Court HR, Mellacher and Others v. Austria judgment of 19 December 1989, Series A No. 169, p. 28, para. 53).         It is true that, although having found it inappropriate to exclude the applicant's property from the conservation area or to guarantee his right to continue licensing the fishing within his area, the national authorities did not pronounce themselves on his entitlement to compensation. Their reference to his right to veto the association's licensing of fishing within his fishing waters would not appear to have answered his compensation claim as such a veto would not have entitled him to license fishing in his own waters. However, in the circumstances of the case the Commission cannot find it established that the measure complained of placed an excessive burden on the applicant.         The Commission finally considers that the proceedings viewed as a whole afforded the applicant a reasonable opportunity of putting his case to the responsible authorities with a view to establishing a fair balance between the conflicting interests at stake. Having regard to its considerations above, the Commission is further satisfied that such a balance was struck in his case. Accordingly, the interference with his property rights was proportionate to the aim pursued.         In these circumstances there is no appearance of any violation of Article 1 of Protocol No. 1 (P1-1) or of Article 17 or 18 (Art. 17, 18) of the Convention.         It follows that 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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.       M.-T. SCHOEPFER                                G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber