AS TO THE ADMISSIBILITY OF
Application No. 12213/86
by Jon AXELSSON and Others
against Sweden
The European Commission of Human Rights sitting in private on
10 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
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
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 15 January 1986
by Jon AXELSSON and Others against Sweden and registered on 2 June
1986 under file No. 12213/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts may be summarised as follows.
The applicants are the following:
1. Mr. Jon Axelsson, a Swedish citizen born in 1952.
2. Mr. Roy Gasper, a Swedish citizen born in 1940.
3. Mr. Lars-Erik Hjelm, a Swedish citizen born in 1935.
4. Mr. Stig Nissen, a Swedish citizen born in 1946.
The applicants are taxi owners and holders of taxi licences
for the area of Malmö. They are members of ROYSTAXI Economic
Association founded in 1981.
According to the 1979 Act on Commercial Transportation
(yrkestrafiklagen) and the 1979 Ordinance on Commercial Transportation
(yrkestrafikförordningen), taxi traffic may be conducted only by
persons who have a transportation licence. In addition to this
licence, a licence-holder can obtain a reserve permit applicable to a
reserve car. Both kinds of licences can be obtained upon application
to the County Administrative Board (länsstyrelsen).
In April 1980 the County Administrative Board of the County of
Malmöhus granted the Malmö Taxi Economic Association (MTEA) 35 reserve
permits. MTEA already had 55 such licences. Two months later the
Board rejected Mr. Gasper's application for a short-time reserve
permit. Mr. Gasper filed a new application for a permanent reserve
permit, which was rejected by the Board on 25 March 1981. Mr. Gasper
appealed to the Board of Transport (transportrådet) which rejected the
appeal. The Board referred in its decision to the 90 reserve permits
held by MTEA as satisfying the need in the zone, and added that the
supervision of the actual demand for taxi transportation was best
carried out through MTEA's dispatch exchange to which the members of
ROYSTAXI do not subscribe.
On 16 June 1981 and 28 July 1981 respectively, the County
Administrative Board rejected two further applications for reserve
permits from Mr. Gasper. On 27 November 1981 a similar application
from Mr. Hjelm was rejected by the County Administrative Board.
On 27 November 1981 an application for a reserve permit filed
by Mr. Nissen was rejected by the County Administrative Board which
referred to the 90 reserve permits of MTEA and the supervisory
function of the dispatch exchange as well as to the earlier rejections
of ROYSTAXI's members' applications. Mr. Nissen appealed to the Board
of Transport which rejected the appeal. Mr. Nissen submitted a
further appeal to the Government which rejected the appeal on
2 September 1982.
In September 1984, all the applicants filed a new application
for reserve permits. In a written opinion submitted to the County
Administrative Board, the municipality of Malmö found that there was
no reason why the licences should not be granted, while MTEA submitted
inter alia that there was an over-establishment of taxi businesses in
the area and that MTEA had resources to cope with even a steep increase
in the demand for services. The Trade Union of Swedish Transport
Workers held that there was no need for supplementary licences at that
time, though it considered two reserves licences should be granted to
the association ROYSTAXI.
On 7 November 1984, the County Administrative Board refused
the applicants' request, stating:
"According to Chapter 2 Section 11 of the Act on Commercial
Transportation a transportation licence may be granted only
when the enisaged transportation service is deemed necessary
and otherwise appropriate. The County Administrative Board
is under the obligation to consider the total offer of taxi
vehicles in a transportation zone in relation to the demand.
In view of the excessive establishment in the taxi business
in the transportation zone of Malmö-Burlöv, the County
Administrative Board holds that there is no need for further
licences at present."
The applicants appealed to the Board of Transport. In its
opinion submitted to the Board, the County Administrative Board
stated:
"There are at present about 210 ordinary taxi licences in
the transportation zone of Malmö-Burlöv. At present, this
is a sufficient quantity. Apart from the ordinary licences
MTEA holds about 90 reserve licences on account of its
members. These licences are however made use of only to
a small extent, since MTEA has chosen to use extra commands
instead of using the reserve licences, when demand for
transportation is high. Occasionally, however, there may
be need for further taxi vehicles, for instance at Christmas
and at New Year etc. Of course, it is also a matter of
great interest to the appellants to be able to use their
reserve vehicles maximally. The County Administrative Board
is, however, not prepared to grant the appellants reserve
permits at present. One important reason for this is the
following. In the autumn of 1984 the economic association
ROYSTAXI has started a dispatch exchange of its own, in
cooperation with Securitas, Southern Sweden AB. The County
Administrative Board has requested the association to
establish a command plan for its activity, but the
association has refused to do so. Without a command plan
it will be difficult to prevent reserve licences from being
used to such an extent that they may compete with ordinary
licences. The County Administrative Board also calls
attention to the fact that MTEA is holding an extra general
assembly on 29 January 1984 to take a final decision
regarding an amendment of its statutes, which will mean
that the dispatch exchange may become accessible also to
independent subscribers. If the dispatch exchange is opened,
negotiations to bring about cooperation between these two
associations should start as soon as possible. In that
context, the question of reserve licences should be reviewed.
One prerequisite for this is, however, that the County
Administrative Board be given the possibility to control
the activity by means of a command plan. The County
Administrative Board advises against upholding the appeal."
The applicants' appeal was dismissed on 8 March 1985, the
Board of Transport holding that when assessing the necessity of a
licence, consideration must be given to the quantities of such
licences within the entire area and against this background, it could
not be said that there was any need for further licences.
The applicants appealed against this decision to the
Government and in addition claimed damages and costs. The County
Administrative Board in its opinion to the Government reported that
MTEA had changed its statutes and that a meeting had been held between
MTEA and ROYSTAXI:
"In this context, MTEA assured that if ROYSTAXI was to join
the common dispatch exchange of MTEA, ROYSTAXI would also
be permitted to have the 90 reserve licences at its disposal.
From what has now been said it appears, however, in the
opinion of the County Administrative Board, that ROYSTAXI
does not wish to join the common dispatch exchange. It may
be added that the County Administrative Board has asked
ROYSTAXI to hand in a project for a command plan to the
Board. In spite of remonstrations, no such plan has been
submitted. Considering the circumstances now mentioned, and
in view of what is said in the attached decision, the County
Administrative Board requests that the appeal be declined."
The Government dismissed the applicants' appeal on 5 September
1985.
On 17 April 1986 the County Administrative Board granted 13
reserve permits to a new transportation organisation, the TS Taxi
Transport Service. The Board of Transport reversed this decision, but
this decision was in turn quashed by the Government on 4 December 1986
and the grant of the permits confirmed.
Swedish legislation on taxi transport
Commercial and public transportation in Sweden is governed by
the 1979 Act on Commercial Transportation and the 1979 Decree on
Commercial Transportation. Such transportation is defined as the
transportation service - by car, truck or bus - offered to the public
for a fee (Chapter 1, Section 4 of the Act). Such transportation may
only be conducted by persons in possession of a valid transportation
licence (Chapter 2, Section 1 of the Act). Licences are issued for
either goods or passenger transportation.
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 Act). In examining applications, such factors as
professional qualifications, and personal and economic circumstances
are considered.
Other conditions for passenger transportation are that the
service is deemed necessary and otherwise appropriate (Chapter 2,
Sections 11 and 17 of the Act).
Specific conditions are often appended to passenger
transportation licences. One such condition may be for instance that
the licence regards reserve transportation and that it may be used
only when there is a need for it, and when ordinary transportation
licences are already being used.
Those who hold licences for transportation on demand with
lighter vehicles (taxis) are under the obligation to transport
passengers and baggage on such conditions as are applicable to that
kind of transportation. Availability is regulated by so called
command plans. A maximum fare rate is established by the authorities.
The licence holder for taxi transportation must be connected
to a dispatch exchange which is common to one or several
transportation zones. The County Administrative Board may grant an
exemption from this obligation on special grounds (Chapter 4, Section
10 of the Decree). Generally there is no more than one dispatch
exchange in each transportation zone. The establishment of several
smaller units is not economically feasible because of the high cost of
modern computerised exchanges. The possibility of a dispensation from
the obligation to subscribe to a dispatch exchange is mainly available
to cater for the needs of taxi services in the vast sparsely populated
areas of the country.
A passenger transportation licence can be revoked, if 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 Act).
Licences are usually issued by the County Administrative
Board. The Board also decides what specific conditions should be met
under the licence. Before deciding whether to grant a licence for
transportation on demand, an opinion from the competent Police
Authority should be asked for. Municipalities, organs responsible for
communications, associations of those who carry out commercial
transportation and such trade unions as may be concerned by the
envisaged transportation activity are to be given an opportunity to
submit opinions. The County Administrative Board also has a
supervisory function and is authorised to revoke licences. Appeals
against the decisions taken by a Board lie to the Board of Transport.
As a last instance, the Government may review decisions made by the
Board (Chapter 2, Section 1 and Chapter 12, Section 2 of the Decree).
Reserve licences are granted to enable taxi enterprises to
provide their customers with acceptable services also when demand is
high. Reserve licences are transportation licences that have been
submitted to the condition that they may be used only to a limited
extent, for instance when other licences are already being used. Such
licences are, according to widespread practice, usually granted to the
economic associations of taxiowners or to other entities that manage
dispatch exchanges. The reason for this is that those who manage a
dispatch exchange are best placed to decide when supplementary
vehicles are required. The licences are generally used in turn by
those connected to the dispatch exchange. Individual licence holders
may also be granted a reserve licence.
In January 1988, the Government submitted to Parliament two
Bills on the deregulation of commercial transportation (Government
Bills 1987/88:50 and 1987/88:78). Government Bill 1987/88:78 contains
a proposal for a new act on commercial transportation which is to come
into force on 1 January 1989. As regards taxi transport the proposed
legislation means that the test of the necessity and appropriateness
of an envisaged service will disappear as a prerequisite for granting
a licence, as of 1 July 1990. Furthermore, the duty to keep up the
service and the rules on transportation zones will disappear, rates
will be free and the obligation to be connected to a dispatch exchange
will be dispensed with. This means that there will in principle be
freedom of establishment for taxi enterprises and that competition
will be free in that line of business. On the other hand there will
be a sharpening of requirements as to the suitability of those
applying for a licence and the subsequent monitoring of their
suitability will be reinforced.
COMPLAINTS
The applicants complain that the repeated administrative
refusals to grant the members of ROYSTAXI reserve taxi permits
were based on irrelevant arguments concerning the number of permits
and their rival taxi association's supervisory function, and violated
the applicants' right to freedom of association in itself as well as
together with their right to non-discrimination, bearing in mind the
local authorities' earlier and subsequent granting of such permits to
rival taxi societies in the same zone.
The applicants also complain that they have had no access to
court in order to have the administrative decisions reviewed.
The applicants invoke Articles 6, 11 and 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 January 1986 and
registered on 2 June 1986. On 7 December 1986, the Commission decided
to communicate the application to the Government pursuant to Rule
42 para. 2 (b) of its Rules of Procedure and to invite them to submit
written observations on the admissibility and merits.
The Government's observations were received on 28 March 1988,
after an extension of two weeks of the time-limit, and the applicants'
observations in reply were received on 18 May 1988.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
Article 26
As regards the complaints relating to the various decisions
refusing reserve permits to the applicants, the Government submit
that only the last two sets of proceedings satisfy the requirement of
.PA:12213/86
exhaustion of domestic remedies and that of those only the last one
(i.e. culminating on 5 September 1985) meets the requirement of the
six months rule.
Article 6
As appears from the legal provisions governing the possibility
to obtain a taxi licence, such a licence is granted on the basis of an
assessment of the need for that licence. An assessment is made of the
suitability of the requested licence in view of the aim to obtain a
good structure of transportation and counteract over-establishment. A
reserve licence is an ordinary taxi licence with special restrictions
as to the conditions under which it may be used. It also appears that
there is a certain amount of supervision of licence holders and that a
licence may be revoked. These provisions, as the ones regarding
granting of taxi licences, are laid down in the public interest to
obtain and maintain a good and well-functioning transport structure.
Consequently, while the criteria for obtaining an authorisation are
sufficiently precise to fulfil the criterion of the "rule of law", the
Government submit that the margin of appreciation afforded is such
that it cannot be said that an applicant is granted a right to obtain
a taxi licence of any kind (Eur. Court H.R., van Marle and others
judgment of 26 June 1986, Series A no. 101, p. 12, paras. 30, 37).
Nevertheless, in a number of cases pertaining to the exercise
of various activities requiring a licence or an authorisation, the
Court has considered that a contestation pertaining to a civil right
was at issue, and, consequently, that Article 6 para. 1 was applicable
(e.g. Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of
23 June 1981, Series A no. 43). In those instances, however, there
was a question of withdrawing or encroaching on a commercial activity
already being exercised.
In this context, the Government make special reference to the
Benthem case (Eur. Court H.R., Benthem judgment of 23 October 1985,
Series A no. 97, pp. 14-16, paras. 32, 36, with references). The
Government point out that in the Benthem case the Court must be
understood as having attached importance to the fact that the licence
concerned in that case had in fact already been made use of. It was
in the last analysis on the basis of this fact that had appeared a
right in the sense of the earlier jurisprudence of the Court, and that
there could be said to exist a dispute pertaining not only to the
"actual existence of a right", but also to the scope and the manner in
which it was exercised.
Since in this instance the applicants were never granted a
reserve licence that they could make use of, the Government submit
that no civil right in the sense of the Convention may be said to have
existed. Consequently the administrative procedure concerning the
granting of reserve licences did not concern a dispute concerning a
civil right, or indeed, a right of any kind. For this reason, the
application falls outside the scope of the Convention and should be
rejected ratione materiae.
However, in case the Commission were to find that the
decisions did amount to a determination of the applicants' "civil
rights" within the meaning of Article 6 para. 1, the Government admit
that the applicant was not entitled to take proceedings before an
independent and impartial tribunal, established by law as provided by
the said provision.
Article 11
Swedish legislation distinguishes between economic
associations and non-profitmaking (or "friendly") associations. This
distinction also exists in other legal systems. It should be noted
that according to Article 1 of the Act on Economic Associations (lagen
om ekonomiska föreningar) the aim of an "economic" association is to
promote the economic interests of its members through economic
activity in which they take part. There is no corresponding
legislation in the field of civil law concerning non-profitmaking
associations. These are in principle governed by practice, but
various rules on such associations appear in different acts,
especially in the field of taxation.
The principle of the freedom of association is laid down in
Chapter 2, Section 1 paragraph 5 of the Swedish Instrument of
Government (regeringsformen) - one of the three fundamental laws which
form the Swedish Constitution. Freedom of association is guaranteed
for both economic and non-profitmaking associations.
The corresponding principle of the negative freedom of
association - the freedom to abstain from joining an association - is
however of a more limited scope. Chapter 2, Section 2 of the
Instrument of Government stipulates i.a. that citizens shall be
protected from the compulsion to belong to a political association, a
religious community or any other associations of a certain political,
religious, cultural or other such opinion. It follows from this that
economic associations are in principle exempted from this guarantee.
It has been mentioned above that, in the field of commercial
transportation, certain personal and economic restrictions exist with
the aim of providing the public with an efficient transport service.
One of these restrictions is the obligation for taxi licence holders
to belong to a dispatch exchange.
It should also be noted that taxi associations are entrusted
by the Decree to administer the dispatch exchanges and are thus
complying with a public law obligation. The Commission and the Court
have in previous cases found that Article 11 of the Convention offers
no protection in regard to associations having the characteristics of
a public institution (Le Compte, Van Leuven and De Meyere judgment,
loc. cit.; No. 6094/73, Dec. 6.7.77, D.R. 9, p. 5).
It should be noted that professional associations are to be
found in the taxi branch in Sweden and that the applicants' rights in
this connection have not been restricted in any way. Taxi owners
usually belong, through a branch organisation, to the Swedish Taxi
Association (Svenska Taxiförbundet), which deals with general
questions concerning the branch. They usually also belong to the
Swedish Employers' Federation. The corresponding association for taxi
drivers is the Transport Workers' Union.
In answer to the Commission's question concerning the possible
interference regarding the applicants' rights under Article 11, the
Government thus maintain that no such interference has taken place,
as the right they refer to does not fall within the scope of the
Convention. Their complaints should consequently be rejected ratione
materiae.
The Government also point out that the obstacle complained of
by the applicants regarding their possibilities to affiliate to the
dispatch exchange in question has recently been removed by the change
in the statutes of the Association. It follows that the grounds for
their complaints in this respect no longer exist.
It should also be noted that despite the fact that the
applicants have not fulfilled the legal obligation to subscribe to the
dispatch exchange since 1980, they have never been deprived of the
possibility to carry out their profession as licensed taxi owners.
None of the decisions invoked by the applicants has a direct
bearing on their freedom of association or on their negative freedom
of association. A global assessment of the decisions concerned,
including the statements made by the County Administrative Board in
the opinions which it has submitted to the Board of Transport and to
the Government leads to the following conclusions.
The reason why the reserve licences were accorded to MTEA was
that MTEA was charged with operating the common dispatch exchange and
had a command plan, which made it easier to assure that the reserve
licences were used in accordance with the conditions to which they
were subject.
Article 14
The Government submit that there has been no discrimination
under Article 14 in conjunction with Article 11. Any difference in
the way the members of the associations concerned were treated was
objectively and reasonably justified by the aims of the legislation
involved. The Government also contend that there was a reasonable
proportionality between the means employed and the aims sought
(e.g. Eur. Court H.R., Belgium Linguistic judgment of 23 July 1968,
Series A no. 6 p. 34, para. 10).
For the above reasons the Government contend that the
applicants' complaint should be dismissed as manifestly ill-founded.
B. The applicants
Background
One of the conditions for taxi licences is that the service
intended is deemed necessary and otherwise appropriate. However it is
not easy, considering the treatment of the applicants' requests for
reserve licences, to give the concept "unnecessary service" a common
sense meaning.
When the applicants founded ROYSTAXI and resigned from MTEA,
they did so as the strongest possible reaction against a long
monopolised and completely numbed taxi transportation service in
Malmö, a shortcoming for which MTEA and the County Administrative
Board were equally responsible, MTEA carrying on in too steep
traditional tracks and the County Administrative Board relying too
much on MTEA.
One major feature of the taxi service policy of MTEA was the
idea that the taxis on duty according to the command plan should be
guaranteed - as far as possible - continuous and remunerative
transportation work during their shifts. This was brought into effect
in a way which caused almost permanent inconveniences to the public.
The number of taxis commanded on each shift was often under what could
be considered appropriate. In that way MTEA intentionally created a
queue of taxi transportation customers who for the sake of securing
continuous work for the taxi cars on duty had to wait for
transportation after order agreement for half an hour or more without
any information whatsoever. This system created a lot of discontent
among the public and a great number of reminder calls to the dispatch
exchange. These reminder calls together with new order calls caused
collapses in the communication activities of the dispatch exchange
where the dispatch exchange of MTEA lost all control over and contact
with the taxi cars and the taxi customers in the streets and in their
places. These collapses created a queue of taxi cabs without any
contact with the queue of the taxi customers, through the dispatch
exchange of MTEA. Such policy made "taxi jam sessions" could last for
hours in particular during autumns and winters when the Swedish
weather often creates sudden increases in the number of incoming taxi
transportation orders at the dispatch exchange.
The applicants contend that the major reason for the duration
through the years of this bizarre picture of inefficiency was the taxi
monopoly position of MTEA; no trade competition forced MTEA to change
its odd taxi service policy as mentioned above. Furthermore, this
acute monopoly position of MTEA in the Malmö taxi zone deprived the
County Administrative Board of all possibilities of inducing MTEA to
make improvements - had there been any such real intent of the County
Administrative Board.
With 35 new reserve licences, the dispatch exchange of MTEA
had about 200 ordinary taxi licences and 90 taxi reserve licences at
its command. It was commonplace among all affected that the dispatch
exchange hardly ever used any of the reserve licences.
The decisive difference between the ordinary taxi licences and
the taxi reserve licences is that the licensee with an ordinary taxi
licence has both the right and the duty to operate taxi transports,
the duty usually defined in a command plan or scheme and the right
referring to the licence as such. A taxi reserve licence gives the
licensee exclusively the right to operate taxi transports when he
himself deems it necessary to offer extra facilities for travelling
with reference to a sudden increase in the demands for transportation.
The main backbone of the taxi service consists of the total of
the ordinary taxi licences within a taxi zone. It is when an
application for an ordinary taxi licence is under consideration that
the Act and the Decree on Commercial Transportation provide - among
other things - that the service must be deemed necessary and otherwise
appropriate. Sudden and short-time increases in the public demand for
taxi transportation are supposed to be dealt with by means of
mobilising taxi cabs running on taxi reserve licences.
After their establishing of ROYSTAXI Economic Association in
the summer of 1981 as an independent and competing new taxi
organisation with a new taxi service policy in the Malmö taxi zone,
the applicants found themselves rapidly in demand, the waves of sudden
and short-time increases in the taxi transportation demands reaching
them with shorter intervals. With their limited resources of
exclusively four ordinary taxi licences and thus never more than four
cabs in traffic, the four applicants had completely to give up the
difference between duty and right to operate taxi transportations; in
principle they all operated all 24 hours every day.
The applicants would draw attention to four factors of great
economic importance in the taxi service, two factors with a negative
impact and two factors with a positive economic impact:
a) Economically negative factors: Those are firstly the
duty with reference to the taxi local command plan to operate taxi
transports even during the nights etc. when the demand for taxi
transports is rather low; within such periods the income seldom covers
the current expenditure. Secondly the proportion between "empty"
driving on the one hand and driving with paying passengers on the
other could constitute a negative economic factor and must be
carefully balanced. Even during peak hours of taxi traffic the earning
capacity of a taxi enterprise can turn out to be devastatingly low due
to an imbalance between "empty" and "lucrative" driving. It is
impossible for a taxi-owner to compensate a periodical loss with a
periodical extra fare, since the maximum fare rate - which is
established by the authorities - may not be exceeded.
b) Economically positive factors: The factor of primary
importance here must be the right without duty through a taxi reserve
licence to make the investment laid down in a taxi reserve cab working
during the peak hours of taxi traffic. The second positive factor may
be the possibility to make advertisement agreements where the
taxi-owner sells space for ads on and in his cab. This may be
considered the only source of income for a taxi-owner which is not
publicly regulated and restricted.
The applicants therefore submit that a taxi reserve licence is
an almost indispensable economic asset for a licensee and taxi-owner
with an ordinary taxi licence.
The taxi reserve licences are not specifically mentioned in
either the 1979 Act on Commercial Transportation or the 1979 Decree on
Commercial Transportation, all bureaucratic investigations having
expressly concentrated upon the issuing of ordinary taxi licences, the
number of which is supposed to form the skeleton of the taxi branch
trade. With reference to what has been said above it seems also
completely inappropriate to make any special bureaucratic assessments
as to the "necessity" or "lack of necessity" of the extra taxi service
offered on taxi reserve licences. The expenses for organising and
operating a taxi service and in particular an extra taxi service are
so high that the private taxi-owner will in his own interest certainly
abstain from organising such service on a taxi reserve licence unless
there is a genuine need for such service for at least some continuous
hours; for that reason the problematic situations might be considered
highly and effectively self-regulating.
It is impossible to reconcile the series of decisions against
ROYSTAXI and its members - in particular when compared with the
favourable decisions concerning MTEA and the TS Transportservice AB -
with even the faintest idea of independence, impartiality and
non-discrimination. On the contrary, those decisions are
characterised by and reveal a far-reaching partial and consciously
discriminating abuse of bureaucratic power in order to penalise
ROYSTAXI to the advantage of MTEA and to support its monopoly position
in the taxi service.
The main reason for the refusal is a purely specious argument
given by the County Administrative Board, namely, that the applicants
refuse to establish a command plan. The command plan is meant to
divide between the right to operate taxi traffic in accordance with
the licence, and which right covers 24 hours a day, and the duty to
operate taxi traffic in the public interest and which duty covers not
more than 12-16 hours a day. The ROYSTAXI members never refused to
construct a draft of a command plan but found such a plan meaningless
with reference to their taxi service policy in general and to their
obligations in relation to their personal clientèle: they operated
with reference to their licenced right. While the command plan of
MTEA may have been necessary, a command plan for ROYSTAXI's four taxi
cabs would under the present conditions give only a ridiculous
impression.
Article 26
The applicants agree with the respondent Government that only
the last set of proceedings culminating on 5 September 1985 meets the
requirement of Article 26 of the Convention.
Article 6
As to the nature of the right to taxi reserve licences and the
right through those licences to operate an independent taxi service
the applicants submit that this right must be of the nature of a civil
right and free trade right in the (autonomous) meaning of the
Convention (see e.g. Eur. Court H.R., Benthem judgment, loc. cit.,
Pudas judgment of 27 October 1987, Series A no. 125 and H. v. Belgium
judgment of 30 November 1987, Series A no. 127). In all three cases
the Court has found a right of a civil nature under determination and
for that reason Article 6 of the Convention applicable.
The applicants allege that their right to a taxi reserve
licence in the present case must be considered a civil right on the
scale somewhere between the right of Mr. Benthem and the right of Mr.
H. in the case of H. v. Belgium, though closer to Mr. Benthem's right,
since the taxi reserve licence is a crucial economic asset in a taxi
transportation enterprise in Sweden as noted above. The applicants
submit - with reference to Swedish legal provisions - that the
assessment of the suitability and necessity of the requested licence
concerns only ordinary taxi licences which are the only ones expressly
mentioned in the 1979 Act and Decree on Commercial Transportation.
The necessity for an ordinary taxi licence must be found present
because of the fact that there is both a right and a duty to organise
taxi traffic concomitant with the ordinary taxi licence. In
exercising his duty to organise taxi traffic in accordance with the
command plan the taxi-owner and ordinary taxi licensee must as much
as possible be spared expensive "empty" driving.
As observed before, the taxi reserve licences simply give the
licensee a right to organise extra taxi traffic during peak hours if
he deems this extra traffic appropriate.
The fact that the applicants were never allowed a tribunal
review concerning their applications for taxi reserve licences
constitutes a violation of the applicants' rights as set forth in
Article 6 para. 1 of the Convention.
Also from another poiont of view the applicants' right as set
forth in Article 6 para. 1 has been violated. When the applicants
appealed against the bureaucratic decisions denying them each a
personal taxi reserve licence the applicants alleged that if they were
denied those licences this should be considered a discrimination and a
violation of their freedom of association.
Articles 11 and 14
It seems incontrovertible that when the administration grants
MTEA and the TS Transportservice AB taxi reserve licences to be used
independently in their respective taxi transport enterprise on a
market of their own in the Malmö-Burlöv taxi zone when appropriate,
the administration in rejecting the applications for taxi reserve
licences of the members of ROYSTAXI discriminates against the
applicants as members of an independent taxi association and denies
them and their independent organisation a taxi market and an
independent marketing of their own.
The applicants find that those decisions imply violations of
their freedom of association through discrimination and for that
reason violations of Articles 11 and 14 of the Convention.
THE LAW
1. Article 26 (Art. 26) of the Convention
The applicants complain of the proceedings and administrative
decisions in which they have been refused reserve taxi permits.
The Commission recalls that the respondent Government submit
that Article 26 (Art. 26) of the Convention is satisfied only in
respect of the last set of proceedings, i.e. the proceedings involving
all four of the applicants which ended on 5 September 1985. The
Commission notes that the applicants accept the respondent
Government's submissions on this point.
The Commission also considers that it can only examine the
applicants' complaints in relation to the last set of proceedings
which ended on 5 September 1985 with the dismissal of the appeal of
the four applicants by the Government.
2. Article 6 (Art. 6) of the Convention
The applicants complain that they have had no access to court
in order to have the administrative decisions, refusing them reserve
licences, reviewed. 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."
In their observations the respondent Government concede that
if the decisions in question concerned a determination of the
applicants' "civil rights" within the meaning of Article 6 para. 1,
(Art. 6-1) the applicants were not able to bring proceedings before an
independent and impartial tribunal established by law as required by
that provision. The Government submit however that the proceedings
did not involve the determination of the applicants' "civil rights",
contending that the applicants did not have a right to obtain a
reserve licence. The Government further argue that in similar
previous cases where a "contestation" pertaining to a "civil right"
has been found, the applicant had already been granted or enjoyed the
benefit of the licence prior to it being revoked.
The Commission has made a preliminary examination of these
issues in light of the submissions of the parties. It considers that
these issues raise important and complex questions of fact and law
which require an examination on the merits. This complaint must
therefore be declared admissible, no other ground for declaring it
inadmissible having been established.
3. Article 11 (Art. 11) of the Convention
The applicants complain that they have been refused reserve
permits since they are not members of MTEA. They invoke Article 11
(Art. 11) of the Convention, which provides:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the
right to form and join trade unions for the protection of
his interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of
national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of
the armed forces, of the police or of the administration
of the State."
The Commission recalls that indeed MTEA hold 90 reserve
permits, of which 35 were granted in April 1980. It appears however
from the decisions of the County Administrative Board and the Board of
Transport that the reason for the refusal of such licences to the
applicants was the finding that there was no need for further licences
in the area at that time. While members of MTEA therefore have the
possibility of using reserve permits, whereas the applicants do not,
the Commission does not find that the applicants have thereby been
placed under any obligation to join MTEA. The Commission notes that
they have been able to continue throughout to carry out their business
of providing a taxi service. In these circumstances, the Commission
finds no appearance of a violation of the applicants' right to
freedom of association under Article 11 (Art. 11) 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.
4. Article 14 (Art. 14) of the Convention
The applicants complain that they have been discriminated
against since MTEA and the TS Transportservice have been granted
reserve licences whereas they have been refused such licences.
Article 14 (Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
The Commission recalls that Article 14 (Art. 14) prohibits
discrimination in respect of enjoyment of the rights and freedoms set
out in the Convention. There is no right as such to be granted a taxi
licence or a reserve licence contained in the Convention. Further, the
Commission recalls that it has found no appearance of a violation of
the applicants' right to freedom of association as guaranteed by
Article 11 (Art. 11) of the Convention. The Commission also finds
that there is no indication that the applicants have been
discriminated against in the enjoyment of their rights under Article
11 (Art. 11) of the Convention. Consequently, there is no appearance
of a violation of Article 14 (Art. 14) of the Convention.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits,
the applicants' complaint under Article 6 para. 1 of
the Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)