AS TO THE ADMISSIBILITY OF
Application No. 12119/86
by Bengt PUDAS
against Sweden
The European Commission of Human Rights sitting in private
on 6 September 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 17 October 1985
by Bengt PUDAS against Sweden and registered on 14 April 1986 under
file No. 12119/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the Government
on 6 October 1988 and the applicant's observations of 3 March and
26 August 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as submitted by the parties, may be summarised as
follows.
The applicant is a Swedish citizen, born in 1959 and resident
at Övertorneå. He is a self-employed taxi owner. Before the
Commission the applicant is represented by Mr. Göran Ravnsborg, a
university lecturer at Lund.
The applicant has previously submitted an application (No.
10426/83) concerning the revocation of his licence to operate
inter-urban traffic on certain routes. He complained inter alia that
he had no possibility of having the revocation of the licence examined
by a court. The Commission as well as the Court found that there had
been a breach of Article 6 para. 1 of the Convention (cf. Eur. Court
H.R., Pudas judgment of 27 October 1987, Series A no. 125-A). In his
present application the applicant complains, inter alia, that he was
refused an exemption from a legally provided duty to belong to a
common taxi dispatch exchange.
The relevant provisions concerning taxi traffic, as well as
other commercial and public transportation are contained in the 1979
Act on Commercial Transportation (yrkestrafiklagen) and the 1979
Ordinance on Commercial Transportation (yrkestrafikförordningen).
Taxi traffic may only be conducted by persons who have a valid
transportation licence. A licence can be obtained upon application to
the County Administrative Board (länsstyrelsen). 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 1979 Act). In
examining applications, such factors as professional qualifications,
and personal and economic circumstances are considered. The reason for
these prerequisites is to ensure that transportation is carried out
under satisfactory circumstances. Other conditions are that the
service is deemed necessary and otherwise appropriate (Chapter 2
Sections 11 and 17 of the 1979 Act). The reason for this is the
overall aim to maintain an adequate network of transportation and to
counteract the establishment of unnecessary services. Specific
conditions are often appended to passenger transportation licences.
These include the obligation for holders of licences for
transportation on demand with lighter vehicules, such as taxis, to
offer a regular service for passengers.
A licence can be revoked, on condition that 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 1979 Act).
The County Administrative Boards decide what specific
conditions should be met under the licence.
In addition these Boards have a supervisory function. They
are also authorised to revoke licences. Appeals against the decisions
of a County Administrative Board may be made to the Board of Transport
(transportrådet). As a last instance, the Government may review
decisions of the Board of Transport.
The taxi traffic is organised in zones which comprise a
certain district of a county. A taxi licence is granted for a certain
zone. In each traffic zone there is normally one taxi association,
which, inter alia, is charged with the task of keeping a dispatch
exchange.
According to Chapter 4 Section 10 of the 1979 Ordinance a
licence holder for taxi transportation must belong to a common
dispatch exchange. The same provision authorises the County
Administrative Board to grant an exemption from this obligation if
there are special reasons. This provision was added to the Ordinance
in 1980 and entered into force on 1 October 1980.
The Övertorneå Municipality in the County of Norrbotten is
divided into two taxi zones, one for the main population centre,
Övertorneå, and one for the rest of the municipality. There is a
common dispatch exchange, situated at Övertorneå, for the two taxi
zones. The dispatch exchange is run by the licence holders of the
Övertorneå taxi zone through the Övertorneå Taxi Economic Association
(ÖTEA).
On 1 February 1980 the County Administrative Board of
Norrbotten granted the applicant a taxi traffic licence, and on
20 May 1980 - the day on which he commenced his business - he was
granted a licence to operate inter-urban traffic on certain routes.
The latter licence was revoked on 17 August 1981. The applicant's
transportation business was established at Hedenäset, a village
approximately 20 km from Övertorneå.
On 5 October 1982, the County Administrative Board,
in a decision concerning the organisation of the taxi traffic in the
Övertorneå municipality, prescribed that the applicant, and another
licence holder with his car stationed at Hedenäset, Mr. Thörmänen,
should before the end of 1982 subscribe to the common dispatch
exchange at Övertorneå.
The applicant and Mr. Thörmänen appealed to the Board of
Transport claiming exemption from the duty to belong to the common
dispatch exchange at Övertorneå. They alleged, inter alia, that the
majority of the members of ÖTEA were opposed to their affiliation to
the association's dispatch exchange and that the working committee of
the Municipal Executive Board (kommunstyrelsens arbetsutskott), in an
opinion of 29 December 1981 to the County Administrative Board, on the
division of the county into taxi traffic zones, had stated that the
County Administrative Board ought to grant an exemption for the taxi
owners of the municipality from the requirement to belong to a common
dispatch exchange. They also alleged that their business was well
established at Hedenäset and that the affiliation would affect them
negatively. The Board of Transport returned the appeal to the County
Administrative Board since the requests for exemption had not been
dealt with by that Board.
On 8 June 1983 the County Administrative Board refused to
grant the exemptions requested. The reason given for the refusal
was that the applicant and Mr. Thörmänen had not indicated any reasons
in support of their requests that could justify exemptions from the
decision of the County Administrative Board of 5 October 1982.
The applicant and Mr. Thörmänen appealed to the Board of
Transport. The applicant referred to an opinion, given by the
Municipal Executive Board on Mr. Thörmänen's appeal, in which that
Board supported Mr. Thörmänen's appeal. On 29 June 1984 the Board of
Transport rejected the applicant's appeal, for the same reasons as the
County Administrative Board. Mr. Thörmänen's appeal was also rejected.
The applicant then appealed to the Government claiming an
exemption from the duty to belong to a common taxi dispatch exchange.
Alternatively, he claimed that his compulsory affiliation to the
dispatch exchange should be executed by means of a contract drafted
with the active assistance of the Office of the Ombudsman for Free
Enterprise (Näringsfrihetsombudsmannen), that he should receive full
compensation for costs and losses in his business caused by the
affiliation and that he should receive compensation for costs
connected with the fact that he personally had to move from his
parents' home at Hedenäset to Övertorneå because of the affiliation.
The Government rejected the applicant's appeal on
25 April 1985.
The applicant became a member of ÖTEA in September 1985.
In order to do so he had to pay a subscription fee of 25,000 SEK and
he also had to install a communication radio in his vehicle at a cost
of 5,247 SEK. The applicant has moved from his parents' home at
Hedenäset to an apartment at Övertorneå.
COMPLAINTS
1. The applicant alleges a violation of Article 6 para. 1 of the
Convention, in that the decision of the Government of 25 April 1985
concerned a determination of his civil rights and obligations and
since he had no possibility of having the refusal to grant exemption
from the duty to belong to a dispatch exchange examined by a court.
2. The applicant complains that the fact that he is obliged to
belong to the dispatch exchange at Övertorneå has forced him to become
a member of ÖTEA on the conditions set up by that organisation. Such
membership is necessary in order to avoid the risk of losing his taxi
licence. The applicant submits that he has had to accept the
provisions of the affiliation contract as they were and that he could not
claim changes in the contract or have its invalidity established in
court proceedings. He invokes Articles 6 para. 1 and 14 of the
Convention.
3. The applicant complains that the refusal of an exemption from
the obligation to belong to the common dispatch exchange at Övertorneå
forced him to join ÖTEA. He alleges a violation of his right to
negative freedom of association and invokes Article 11 of the
Convention.
4. The applicant also complains that the Government's decision of
25 April 1985, which made it necessary for him to move from his
parents' home to an apartment at Övertorneå, violates Article 8 of the
Convention and Article 2 of Protocol No. 4 to the Convention.
5. The applicant further complains that the Government's decision
to refuse him the requested exemption caused him extra costs both in
his business and privately. He claims that this constitutes a
violation of Article 1 of Protocol No. 1 to the Convention and of
Article 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 October 1985 and
registered on 14 April 1986.
On 4 July 1988 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the
application.
The Government's observations were received by letter dated
6 October 1988 and the applicant's observations in reply were dated
3 March 1989. Further observations from the applicant were received by
letter of 26 August 1989.
THE LAW
1. The applicant complains that there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention as he could not have
the refusal of an exemption from the duty to belong to a dispatch
exchange examined by a court.
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."
The Government submit that the applicant had no "right" under
Swedish law to be exempted from the duty to belong to a dispatch
exchange. Whether or not he should be exempted was a question in
regard to which the authorities exercised full discretion. Moreover,
although the decision had some effects on the applicant, such as the
payment of a fee to ÖTEA, it did not thereby become a determination of
the applicant's civil rights. Alternatively, the Government contend
that no serious dispute was at hand. This complaint should
consequently be rejected as being incompatible ratione materiae with
the Convention or as being manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention. In case the
Commission were to find that Article 6 para. 1 (Art. 6-1) did apply,
the Government admit that the applicant could not take proceedings
before a tribunal satisfying the said provision.
The issues to be decided are whether the Government's decision
of 25 April 1985 was decisive for the applicant's "civil rights (or)
obligations" and, if so, whether a genuine and serious dispute arose
over the refusal to grant the applicant an exemption from the duty to
belong to a dispatch exchange. In the affirmative, it would then have
to be determined whether the applicant had at his disposal a procedure
satisfying the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention in regard to that dispute.
The Commission has made a preliminary examination of these
issues in the light of the parties' submissions. It considers that
these issues raise questions of fact and law which are of such a
complex nature that their determination requires an examination of the
merits. This complaint cannot therefore be declared inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, and no other ground for declaring it
inadmissible has been established. This part of the application is
therefore admissible.
2. The applicant complains that the duty to belong to the
dispatch exchange has forced him to become a member of ÖTEA on
conditions set up by that association. The applicant alleges that he
had to accept ÖTEA's affiliation contract without having the
possibility to claim changes or its invalidity before a court. In this
respect the applicant refers to Article 6 (Art. 6) and to Article 14
(Art. 14) of the Convention, which prohibits discrimination in the
enjoyment of the Convention rights.
The Government submit that the applicant has not been forced
to become a member of ÖTEA and, as regards the terms of the contract,
they submit that the applicant could challenge any unfair terms of
contract before the Market Court (marknadsdomstolen) or before the
ordinary courts.
The Commission considers that these complaints do not disclose
any appearance of a violation of the provisions invoked by the
applicant. It follows that they are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further alleges a violation of his right to
negative freedom of association and invokes Article 11 (Art. 11) of the
Convention.
The Government submit that this complaint is inadmissible as
being incompatible ratione materiae with the provisions of the
Convention or for failure to exhaust domestic remedies. They maintain
that, as the duty to belong to a dispatch exchange is provided for by
law, the ÖTEA is fulfilling a public law obligation when running such
a dispatch exchange. Article 11 (Art. 11) does not offer any
protection in regard to associations having the characteristics of a
public institution.
Article 11 (Art. 11) guarantees to everyone the "freedom of
association with others". The Commission has previously held that the
duty of a holder of a taxi licence to belong to a dispatch exchange,
and the refusal to grant exemption from such a duty cannot be regarded
as an interference with the rights guaranteed by Article 11 (Art. 11)
(cf. No. 10368/83 and 10642/83, Dec. 10.10.85, unpublished). The
Commission recalls that the Government's decision did not oblige the
applicant to become a member of ÖTEA. It is true that the dispatch
exchange was run by ÖTEA. The facts before the Commission do not show
that the duty to belong to a dispatch exchange implied an obligation
to join ÖTEA. In this context, the Commission notes the Government's
submission that the refusal of an association running a dispatch
exchange to admit affiliation to a dispatch exchange, unless the
applicant becomes a member of the association, could be the basis for
an exemption from the duty to belong to the dispatch exchange. The
facts of the present case do not disclose that the applicant's
decision to join ÖTEA was caused in a manner which violates 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. The applicant also alleges violations of Article 8 (Art. 8) of
the Convention, Article 1 of Protocol No. 1 (P1-1) to the Convention,
Article 2 of Protocol No. 4 (P4-2) to the Convention and Article 14
(Art. 14+P1-1) of the Convention in conjunction with Article 1 of
Protocol No. 1 to the Convention.
However, the Commission finds no appearance of a violation of
these provisions. These complaints are therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
1. DECLARES ADMISSIBLE, without prejudging the merits,
the complaint of absence of a court procedure in regard
to the decision of 25 April 1985 (Article 6 para. 1 (Art. 6-1)
of the Convention).
2. DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)