AS TO THE ADMISSIBILITY OF
Application No. 11899/85
by Wasagrillen Knut Nylund AB
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
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
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 13 August 1984
by Wasagrillen Knut Nylund AB against Sweden and registered
on 9 December 1985 under file No. 11899/85;
Having regard to
- the reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Govenment
on 7 June 990 and the observations submitted in reply by the applicant
on 7 June 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties'
submissions, may be summarised as follows.
The applicant, Wasagrillen Knut Nylund Aktiebolag, is a
limited liability company whose headquarters is at Mora. The company
is run by Mr. Knut Nylund. Before the Commission the applicant is
represented by Mr. Göran Ravnsborg, university lecturer at Lund.
The applicant company has run a restaurant business since
1971. In 1975 it obtained a licence to serve wine and beer in respect
of one part of its business, and in 1977 it obtained a full licence to
serve alcoholic beverages.
On 22 February 1984 the County Administrative Board
(länsstyrelsen) of the County of Kopparberg revoked the licence to
serve alcoholic beverages in accordance with Section 64 of the Act on
Trading in Beverages (lagen om handel med drycker). In the decision
reference was made to information from the tax department of the
County Administrative Board concerning the period from May 1981 to
April 1982. According to the County Administrative Board there had
been deficiencies in the book-keeping of the company with regard to
the sale of beer.
The applicant company later asked for a new licence to serve
alcoholic beverages. In a decision of 21 May 1984 the County
Administrative Board refused to grant a licence stating that it did
not consider that the company fulfilled the requirement of suitability
in Section 40 of the Act on Trading in Beverages in view of the short
time which had elapsed since its previous decision and the serious
nature of the facts which had formed the basis of the revocation.
The applicant company appealed against the above two decisions
to the National Board of Health and Social Welfare (socialstyrelsen)
which rejected the appeals in a decision of 28 June 1984. This
decision was not subject to appeal.
Mr. Nylund was subsequently prosecuted for having committed
the offence of obstruction of tax control. He was however acquitted
by the District Court (tingsrätten) of Mora on 3 September 1984, a
judgment which was confirmed by the Svea Court of Appeal (Svea
hovrätt) on 8 November 1984.
On 16 November 1984 the County Administrative Board rejected a
further request from the applicant company for a licence to serve
alcoholic beverages. The applicant company appealed against this
decision to the National Board of Health and Social Welfare, which in
a decision of 12 December 1984 granted the appeal and quashed the
decision of the County Administrative Board.
On 14 December 1984 the applicant company was granted a new
licence to serve alcoholic beverages.
COMPLAINTS
The applicant company alleges violations of Article 1 of
Protocol No. 1 and of Articles 6 and 13 of the Convention.
It is submitted that the withdrawal of the licence to serve
alcoholic beverages from 22 February to 12 December 1984 caused a loss
of about one million SEK. The applicant company alleges that the
Swedish system is purely "bureaucratic" without any possibility of
having the withdrawal of the licence examined by a court. The company
further submits that the withdrawal of the licence was unfounded,
since the deficiencies in the sale of beer were merely due to a change
in the size of tankards from 58 to 50 cl.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 August 1984 and
registered on 9 December 1985.
On 13 October 1986 the Commission decided to communicate the
application to the respondent Government without asking for
observations, and to adjourn the further examination of the case
pending the outcome of Application no. 10873/84, Tre Traktörer
Aktiebolag v. Sweden.
On 7 July 1989 the European Court of Human Rights delivered
judgment in the Tre Traktörer Aktiebolag case (Eur. Court H.R., Tre
Traktörer Aktiebolag judgment of 7 July 1989, Series A no. 159).
On 4 October 1989, the Commission declared inadmissible the
applicant's complaints under Article 1 of Protocol No. 1 to the
Convention. It adjourned consideration of the complaints under
Articles 6 and 13 of the Convention and invited the parties to submit
observations on the Article 6 complaint in the light of the Court's
judgment in the case of Tre Traktörer Aktiebolag.
On 19 December 1989 the Government's observations were
received. The applicant's observations were submitted on 7 June
1990.
THE LAW
The applicant company complains of a violation of Article 6
(Art. 6) of the Convention in that it did not have access to court
with regard to the withdrawal of its licence to serve alcoholic
beverages. The company also invokes Article 13 (Art. 13) of the
Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides as
follows in the first sentence:
"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 issues which arise are whether the decision of the
National Board of Health and Social Welfare dated 28 June 1984
concerned the applicant company's "civil rights and obligations"
within the meaning of the above provision and, if so, whether the
applicant company had available to it a procedure satisfying this
provision for the determination of any dispute arising over the
withdrawal of the licence to sell alcoholic beverages.
The Commission recalls that similar issues arose in the case
of Tre Traktörer Aktiebolag (Eur. Court H.R., Tre Traktörer
Aktiebolag judgment of 7 July 1989, Series A no. 159) where the Court
found a violation of Article 6 para. 1 (Art. 6-1) of the Convention in
that the applicant company had no possibility of having the revocation
of its licence to serve alcoholic beverages on its premises reviewed
by a Court. The Commission further notes that the respondent
Government have waived objections to admissibility in this case.
In these circumstances, the Commission considers that the
applicant's complaints raise questions of fact and law which require
an examination on the merits. The Commission also finds that the
applicant's complaints under Article 13 (Art. 13) arise from the same
factual basis. The complaints cannot therefore be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, but must be declared
admissible, no other ground for declaring them inadmissible having
been established.
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits,
the remainder of the application.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
Full & Egal Universal Law Academy