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)
Full & Egal Universal Law Academy