AS TO THE ADMISSIBILITY OF
Application No. 14060/88
by Claus GEBAUER
against Sweden
The European Commission of Human Rights sitting in private
on 7 January 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 24 May 1988
by Claus GEBAUER against Sweden and registered on 26 July 1988 under
file No. 14060/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the written observations submitted by the
Government on 24 January 1990 and by the applicant on 14 March 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Swedish citizen born in 1937 and resident
at Ronneby. Before the Commission the applicant is represented by Mr.
Gustav Bergstedt and Mr. Nils Wahl, lawyers practising in Stockholm.
Until April 1988 the applicant owned a first-class hotel with
a restaurant and a night-club at Karlskrona. In this capacity he was,
since July 1985, the holder of a licence to serve alcoholic beverages
issued under the Act on the Sale of Beverages (lagen om handel med
drycker; hereinafter "the Act"). The licence was valid until further
notice.
In May 1987 the applicant decided to lease out the night-club
business to Fun-Fun i Karlskrona AB (hereinafter "FFAB"), a limited
liability company. Before agreeing on the terms of the lease the
applicant and representatives of FFAB on 4 June 1987 visited the
County Administrative Board (länsstyrelsen; hereinafter "the Board")
of the County of Blekinge to inquire whether a lease would cause any
problems with respect to the licence. The representative of the Board
answered in the negative.
The applicant's account of this meeting has not been confirmed
by the Government.
In June 1987 the applicant and FFAB signed a lease with
respect to the night-club business and the premises of the club.
Subsequently the Board summoned the applicant and a
representative of FFAB to a meeting on 23 October 1987, at which the
applicant was asked if the night-club was leased out to FFAB. He
answered in the affirmative and referred to his previous meeting with
the representative of the Board, who then stated that she had never
given her approval to a lease. On the contrary, she had explicitly
stated that the applicant could not under any circumstances lease the
night-club to FFAB.
At a meeting on 26 October 1987 the representative of the
Board told the applicant that the only thing he could do to retain his
licence was to terminate the agreement and reemploy all his former
personnel. At a meeting on 28 October 1987 the question of the
purchaser of the alcoholic beverages was raised by the representative
of the Board. The representative of FFAB then stated that she had
been buying the beverages in the name of this company.
Having been given the opportunity to submit his opinion, the
applicant on 9 November 1987 informed the Board that he and FFAB
immediately after the last meeting with the Board had agreed to
terminate their previous agreements, in order to comply with the orders
of the Board.
On 12 November 1987 the Board, on the basis of Section 64 of
the Act, decided to withdraw the licence to serve alcoholic beverages
in the night-club for the period from 18 November to 16 December 1987.
The Board stated inter alia that the applicant's company had, in
several respects, violated the provisions of the Act and the Ordinance
on the Sale of Beverages (förordning om handel med drycker); that it
had shown a manifest nonchalance in respect of existing regulations;
that it had not been proved that the lease had been terminated; and
that an admonition would not be a sufficient sanction.
The applicant's appeal to the National Board of Health and
Social Welfare (socialstyrelsen) was rejected on 26 November 1987.
This decision was not subject to appeal.
The night-club was closed down on 18 November 1987 and
reopened on 16 December 1987.
COMPLAINT
The applicant complains that he could not have the withdrawal
of his licence to serve alcoholic beverages reviewed by a court. He
alleges a violation of Article 6 para. 1 of the Convention.
The applicant also complained that the effects of the
withdrawal of the licence resulted in a loss of inter alia income and
goodwill amounting to 5.3 million SEK. He alleged a violation of
Article 1 of Protocol No. 1 to the Convention. Subsequently this
complaint was withdrawn.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 May 1988 and registered
on 26 July 1988.
On 7 July 1989 the European Court of Human Rights delivered
judgment in the Tre Traktörer AB case (Series A No. 159).
On 8 November 1989 the Commission decided that notice of the
application should be given to the respondent Government and that the
parties should be invited to submit written observations on the
admissibility and merits of the application, limited to the issue
under Article 6 of the Convention.
The Government's observations were submitted on 24 January
1990. The applicant's observations in reply were submitted on
14 March 1990.
THE LAW
1. The applicant complains that he could not have the withdrawal
of his licence to serve alcoholic beverages reviewed by a court. He
alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) first sentence of the Convention
reads, insofar as it is relevant:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by [a] ... tribunal..."
The Commission considers that the issues to be decided are
whether the withdrawal of the applicant's licence to serve alcoholic
beverages was decisive for his "civil rights and obligations" and, if
so, whether a genuine dispute of a serious nature arose between the
applicant and the authorities in relation to this decision. In the
affirmative, it would have to be determined whether the applicant had
at his disposal a procedure satisfying the conditions of Article 6
para. 1 (Art. 6-1) of the Convention with regard to that dispute.
The Government waive objections as to the admissibility of this
complaint and admit a violation of Article 6 para. 1 (Art. 6-1) of
the Convention.
The Commission finds that this complaint is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. As no other ground for declaring it inadmissible has been
established, this complaint is admissible.
2. The applicant originally also complained that the withdrawal
of the licence violated Article 1 of Protocol No. 1 (P1-1) to the
Convention. However, in view of the Court's judgment in the Tre
Traktörer AB case he has subsequently withdrawn this complaint. The
Commission finds no reason to examine this complaint.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of
the case, the applicant's complaint that he could not have
the withdrawal of his licence to serve alcoholic beverages
reviewed by a court;
DECIDES TO STRIKE OFF ITS LIST OF CASES the remainder
of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy