Application No. 12213/86
Jon AXELSSON, Roy GASPER,
Lars-Erik HJELM and Stig NISSEN
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 11 April 1989)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-16) 1
A. The application (paras. 2-4) 1
B. The proceedings (paras. 5-11) 1
C. The present Report (paras. 12-16) 2
II. ESTABLISHMENT OF THE FACTS (paras. 17-39) 3
A. The particular circumstances of the case 3
(paras. 17-29)
B. The relevant domestic law and practice 5
(paras. 30-39)
III. OPINION OF THE COMMISSION (paras. 40-60) 8
A. Point at issue (para. 40) 8
B. Article 6 of the Convention 8
(paras. 41-58)
a. Applicability of Article 6 para. 1 8
(paras. 42-54)
aa. Was there a dispute regarding a 8
"right"? (paras. 43-53)
bb. Was the right "civil" in character? 10
(paras. 54-56)
b. Compliance with Article 6 para. 1 of 10
the Convention (paras. 57-59)
Conclusion (para. 60) 11
Dissenting opinion of MM. Trechsel, Weitzel,
Schermers and Campinos 12
APPENDIX I History of the proceedings 13
before the Commission
APPENDIX II Decision on the admissibility 14
of the application
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights and of the procedure before the
Commission.
A. The application
2. The applicants, Jon Axelsson, Roy Gasper, Lars-Erik Hjelm and
Stig Nissen, are Swedish citizens born in 1952, 1940, 1935 and 1946
respectively. The applicants are represented before the Commission by
Mr. Göran Ravnsborg, a university lecturer at the University of Lund.
3. The application is directed against Sweden. The respondent
Government are represented by their Agent, Mr. Hans Corell,
Ambassador, Under-Secretary at the Ministry of Foreign Affairs,
Stockholm.
4. The case concerns the refusal of the Swedish authorities to
grant to the applicants reserve taxi licences in connection with their
taxi business. The applicants complain that they have no access to
court in order to have the administrative decisions reviewed and
allege accordingly a violation of Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 15 January 1986 and
registered on 2 June 1986.
6. On 7 December 1987, the Commission decided, pursuant to Rule
42 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite them to submit
before 4 March 1988 their written observations on the admissibility
and merits of the applicants' complaints under Articles 6, 11 and 14
of the Convention.
7. The Government sent their written observations on 28 March
1988, after an extension of the time-limit, and the applicants'
observations in reply were received on 18 May 1988.
8. The Commission considered the application again on 10 October
1988 and declared admissible the applicants' complaints under Article
6 para. 1 of the Convention. It declared the remainder of the
application inadmissible.
9. The parties were then invited to submit any additional
observations or further evidence which they wished to put before the
Commission.
10. The Government submitted further observations on 12 January
1989 and the applicants' supplementary observations were received on
30 January 1989.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions, the Commission now
finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
13. The text of the Report was adopted by the Commission on
11 April 1989 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
15. A schedule setting out the history of the proceedings before
the Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. 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.
18. 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 licence applicable to a
reserve car. Both kinds of licences can be obtained upon application
to the County Administrative Board (länsstyrelsen).
19. In April 1980 the County Administrative Board of the County of
Malmöhus granted the Malmö Taxi Economic Association (MTEA) 35 reserve
licences. MTEA already had 55 such licences. Two months later the
Board rejected Mr. Gasper's application for a short-time reserve
licence. Mr. Gasper filed a new application for a permanent reserve
licence, 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 licences
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 did not subscribe.
20. On 16 June 1981 and 28 July 1981 respectively, the County
Administrative Board rejected two further applications for reserve
licences from Mr. Gasper. On 27 November 1981 a similar application
from Mr. Hjelm was rejected by the County Administrative Board.
21. On 27 November 1981 an application for a reserve licence filed
by Mr. Nissen was rejected by the County Administrative Board which
referred to the 90 reserve licences 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.
22. In September 1984, all the applicants filed a new application
for reserve licences. In their request, they stated that their
capacity to cope with their customers would be under strain without
further licences, that they were being discriminated against in
relation to MTEA and that reserve licences had no connection with
affiliation to a particular dispatch exchange. 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 (svenska
transportarbetareförbundet) held that there was no need for
supplementary licences at that time, though it considered two reserve
licences should be granted to the association ROYSTAXI.
23. 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 envisaged 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."
24. The applicants appealed to the Board of Transport arguing
inter alia that the County Administrative Board's decision was not
based on convincing reasons and that the decision was in breach of the
applicants' right to negative freedom of association. In an 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 behalf of its
members. However, these licences are only used 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 a 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 as much as possible. The County
Administrative Board, however, is not prepared to grant the
appellants reserve licences 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."
25. 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 number of such licences
within the entire area and against this background, it could not be
said that there was any need for further licences.
26. The applicants appealed against this decision to the
Government arguing again that they were discriminated against and that
their right to negative freedom of association had been violated and
in addition they claimed damages and costs. The County Administrative
Board in an 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 reminders, no such plan has been
submitted. Considering the circumstances now mentioned, and
in view of what has been stated in (the Board's) decision,
the County Administrative Board requests that the appeal
be rejected."
27. The Government dismissed the applicants' appeal on 5 September
1985.
28. On 17 April 1986 the County Administrative Board granted 13
reserve licences to a new transportation organisation, the TS Taxi
Transport Service with a special permit of non-connection with the
local taxi dispatch exchange. The Board of Transport reversed this
decision, but the decision of the Board of Transport was in its turn
quashed by the Government on 4 December 1986 and the grant of the
licences was then confirmed.
29. In or about 1988, MM. Axelsson, Hjelm and Nissen lodged new
applications for personal taxi reserve licences. On 19 October 1988,
the County Administrative Board granted a number of reserve licences
to ROYSTAXI with a special permit of non-connection with a local taxi
dispatch exchange.
B. The relevant domestic law and practice
30. Commercial and public transportation is governed by the 1979
Act on Commercial Transportation and the 1979 Ordinance on Commercial
Transportation. Such transportation is defined as 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.
31. 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.
32. Other conditions for passenger transportation are that the
service is deemed necessary and otherwise appropriate (Chapter 2
Sections 11 and 17 of the Act).
33. Specific conditions are often appended to passenger
transportation licences. One such condition may be for instance that
the licence concerns 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.
34. Holders of 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.
35. 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 Ordinance). 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.
36. 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).
37. Licences are usually issued by the County Administrative
Board. The Board also decides what specific conditions should be met
under the licence. Before it is decided whether to grant a licence
for transportation on demand, the competent Police Authority should be
asked to state its opinion. 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 shall also be given an opportunity
to submit their opinion. The County Administrative Board also has a
supervisory function and is authorised to revoke licences. Appeals
against the decisions taken by a Board may be lodged with 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
Ordinance).
38. Reserve licences are granted to enable taxi enterprises to
provide their customers with acceptable services when demand is high.
Reserve licences are transportation licences that are subject 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.
39. 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). The new Act on Commercial
Transportation, which modifies the conditions for granting taxi
licences and for running a taxi business, came into force on 1 January
1989. The new Act also grants a right of appeal to the Administrative
Court of Appeal (kammarrätten) against most decisions regarding
transportation licences.
III. OPINION OF THE COMMISSION
A. Point at issue
40. The only issue to be decided is whether or not Article 6 para.
1 (Art. 6-1) of the Convention is applicable in the present case and, if so,
whether or not there has been a violation of that provision.
B. Article 6 (Art. 6) of the Convention
41. The applicants allege a violation of Article 6 para. 1 (Art. 6-1) of
the Convention in that no court remedy was available in respect of the refusal
of the administrative authorities to grant them reserve taxi licences. The
Government submit that this complaint falls outside the scope of Article 6
(Art. 6).
Article 6 para. 1 (Art. 6-1) first sentence reads:
"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."
a. Applicability of Article 6 para. 1 (Art. 6-1)
42. The applicability of Article 6 para. 1 (Art. 6-1) of the Convention
depends on whether the applicants were seeking the determination of a
dispute (French: contestation) regarding a "right" and, if so, whether
that "right" was "civil" in character.
aa. Was there a dispute regarding a "right"?
43. Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations")
over "rights and obligations" which can be said, at least on arguable
grounds, to be recognised under domestic law. It does not in itself
guarantee any particular content for "rights and obligations" in the
substantive law of the Contracting States (cf. Eur. Court H.R.,
Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70,
para. 192). On the other hand, it is not decisive whether a certain
benefit, or possible claim, is characterised as a "right" under the
domestic legal system. This is so since the term "right" must be given an
autonomous interpretation in the context of Article 6 para. 1 (Art. 6-1). In
its Report in the case of W v. the United Kingdom (Comm. Report 15.10.85,
para. 115, Eur. Court H.R., Series A no. 121-A, pp. 48-49) the Commission held
that:
"Even where a benefit can be granted as a matter of discretion
rather than as a matter or right, a claim for such a benefit
may well be considered to fall within the ambit of (Article 6
para. 1 (Art. 6-1))."
44. It is established case-law that Article 6 para. 1 (Art. 6-1) guarantees
to everyone who claims that an interference by a public authority with
his "civil rights" is unlawful the right to submit that claim to a
tribunal satisfying the requirements of that provision (see Eur. Court
H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981,
Series A no. 43, p. 20, para. 44). The claim or dispute must be
"genuine and of a serious nature" (see e.g. Eur. Court H.R., Benthem
judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). The
dispute may relate not only to the actual existence of a right but
also to its scope or the manner in which it may be exercised. The
dispute may concern both questions of fact and questions of law (see
e.g. Eur. Court H.R., Van Marle and Others judgment of 26 June 1984,
Series A no. 101, p. 11, para. 32).
45. The Government have argued that the discretion of the County
Administrative Board in granting taxi licences is so wide that the
applicants could not be said to have any "right" within the meaning of
the Convention.
46. Pursuant to the 1979 Act on Commercial Transportation and the
1979 Ordinance on Commercial Transportation, notably Chapter 2
Sections 2, 11 and 17 of the Act, reserve taxi licences may be
granted, provided that the applicant is suitable and that the service
in question is deemed necessary and otherwise appropriate. The
legislation does not indicate any more precise criteria for
determining in which cases licences shall be granted. The public
authorities therefore enjoy a wide discretion, and the question arises
whether the applicants could, on arguable grounds, claim a right under
Swedish law to obtain reserve taxi licences.
47. In this connection, the Commission recalls the case of H. v.
Belgium (Eur. Court H.R., judgment of 30 November 1987, Series A
no. 127, pp. 31-32, paras. 41-43), in which the European Court held
that there was a dispute over a "right" under Belgian law when the
Council of the Ordre des Avocats was called upon to decide whether
there were "exceptional circumstances" which warranted the applicant's
readmission as an avocat. The Court noted that the term
"exceptional circumstances" was capable of being interpreted and
applied in a wide variety of ways (para. 42) and that the Council had
some discretion in deciding whether the requirement of "exceptional
circumstances" had been met (para. 43). Nevertheless, the Court found
that the applicant could arguably maintain that he satisfied that
condition and that there was, therefore, a dispute over a "right" in
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 43).
48. Similarly, in the case of the Estates of Mr. and Mrs. Skärby
and Others v. Sweden (Comm. Rep. 16.3.89) the Commission found that
there was a dispute over a "right" under Swedish law with regard to a
decision by a local Building Committee not to grant the applicants an
exemption from the regulations in a building plan.
49. As in the case of H. v. Belgium and the case of the Estates of
Mr. and Mrs. Skärby and Others, the discretion at issue in the present
case was wide but not unlimited and had to be exercised in the
framework of the applicable law. In its judgment in the Pudas case
(Eur. Court H.R., Pudas judgment of 27 October 1987, Series A no. 125,
pp. 40-41, paras. 32-34), the European Court stated that it followed
from "generally recognised legal and administrative principles that
the authorities did not have an unfettered discretion" when deciding
whether or not to revoke a traffic licence.
50. According to the said "legal and administrative principles",
the County Administrative Board was obliged, when examining the
applicants' request, to take all the different public and private
interests involved into account as well as the general purposes of the
applicable transportation legislation. It also had the task to
determine on this basis whether there were sufficient reasons for
granting the request for a licence. It is also clear that the Board
was under an obligation not to let its decision be influenced by any
irrelevant considerations and to decide on the issue under a fair
procedure and in accordance with general legal rules such as the
obligation to give equal treatment to all citizens.
51. The Commission also notes that, in comparison with the case of
H. v. Belgium and the case of the Estates of Mr. and Mrs. Skärby and
Others, the criteria for granting the licences indicated in the Act on
Commercial Transportation are more precise than the criteria in the
corresponding provisions in the above-mentioned cases. A further
difference between the cases is that, in the present case, the dispute
concerned a normal administrative decision as to whether a licence
should be granted, whereas in the other cases the question was whether
an exemption should be granted from an existing prohibition or
exclusion.
52. In the present case, the applicants are of the opinion that if
the Board had made a fair assessment of the different interests
involved, it should have granted the reserve licences in their case.
Consequently, they must be understood to claim that, in the
circumstances, they had a right to obtain such licences and that they
were denied this right by the Board. The applicants allege that they
were discriminated against as compared to other taxi firms such as
MTEA and that reserve licences should have no connection with
affiliation to a particular dispatch exchange. The applicants further
submit that the Board's decision was not based on convincing reasons
and breached the applicants' right to negative freedom of association.
53. In these circumstances, the applicants' allegation is not only
that the County Administrative Board exercised its discretion to their
disadvantage but that the Board took a decision which was influenced
by irrelevant considerations and therefore contrary to Swedish law.
For these reasons the Commission finds that there existed a "serious"
and "genuine" dispute over the applicants' "rights" within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
bb. Was the right "civil" in character?
54. The Commission recalls that the character of the right to
obtain a taxi licence has already been considered in the Pudas case
(Eur. Court H.R., Pudas judgment, loc. cit., pp. 15-16, paras. 35-38,
Comm. Report 4.12.85 in the same case annexed to the Pudas judgment,
paras. 43-45, p. 25). Both the Commission and the Court found that
the licence was related to the applicant's exercise of his business
activities as a taxi-driver and that the dispute accordingly concerned
a "civil right".
55. In the present case, the dispute concerns the grant of a
reserve taxi licence and not an ordinary taxi licence as in the Pudas
case. The Commission finds however that it is similarly connected
with the applicants' exercise of a commercial activity, carried out
with the object of earning profits and based on a contractual
relationship between the licence holder and his customers.
56. Consequently, the Commission finds that the dispute concerns
"civil" rights of the applicants and that Article 6 para. 1 (Art. 6-1) is
applicable.
b. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
57. The Commission has next examined whether the applicants had
the possibility of submitting the dispute as to the reserve taxi
licences to a "tribunal" satisfying the conditions of Article 6 para.
1 (Art. 6-1) of the Convention.
58. The Commission recalls that an appeal lay from the County
Administrative Board to the Board of Transport and from there to the
Government. The Commission finds, and the Government do not dispute,
that these proceedings did not satisfy the requirements of Article 6
para. 1 (Art. 6-1) of the Convention. The Commission further recalls that the
Government admit that the applicants were not entitled to take their
complaints before a tribunal as required by Article 6 para. 1 (Art. 6-1). The
Commission finds that indeed no such remedy was available to the
applicants.
59. It follows that the applicants did not have at their disposal
a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) in
respect of the dispute which arose over the refusal of the reserve
taxi licences.
Conclusion
60. The Commission concludes, by 12 to 4 votes, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
Dissenting opinion of MM. Trechsel,
Weitzel, Schermers and Campinos
We regret that we are unable to share the Commission's opinion
that Article 6 para. 1 is violated in the present case.
We agree that under certain circumstances a claim for a
benefit may be considered to fall within the ambit of Article 6 para.
1 of the Convention. It depends however on the specific facts of each
case whether this is so.
In the present case the applicants claimed reserve licences
for the operation of their taxi service. Such reserve licences are
granted by the competent authority insofar as it deems them to be
"necessary and otherwise appropriate" (para. 32).
It is, in our view, obvious that the authorities dispose of a
large discretion in determining these issues and we find that the
applicants are in reality not complaining about the legality of the
decision but simply about the way in which the County Administrative
Board of the County of Malmöhus has exercised its discretion. A
complaint that an administrative authority has exercised its
discretion wrongly by not granting a benefit, in our opinion, falls
outside the ambit of Article 6 para. 1. In essence, we find no
difference in the present case as compared to the case of the Estate
of Mr. and Mrs. Skärby and Others v. Sweden, No. 12258/86, and, as in
the dissenting opinion by Mr. Nørgaard and others in that case, we do
not find a violation of Article 6 para. 1 in the present case.
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
15.01.86 Introduction of the application
02.06.86 Registration of the application
Examination of admissibility
07.12.87 Commission's deliberations and
decision to invite the Government
to submit observations in writing
28.03.88 Government's observations
18.05.88 Applicants' reply
10.10.88 Commission's deliberations and
decision to declare the application
partially admissible and partially
inadmissible
Examination of the merits
12.01.89 Government's supplementary observations
30.01.89 Applicants' supplementary observations
11.03.89 Commission's consideration of state
of proceedings
11.04.89 Commission's deliberations on the
merits, final votes and adoption of
the Report