PARTIAL
AS TOT THE ADMISSIBILITY
Application No. 11899/85
by Wasagrillen Knut NYLUND AB
against Sweden
The European Commission of Human Rights sitting in private
on 4 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 Aktiebolag against Sweden and registered
on 9 December 1985 under file No. 11899/85;
Having regard to
- the Commission's decision of 13 October 1986 to bring the
application to the notice of the respondent Government but
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;
- the judgment of the European Court of Human Rights delivered
in the Tre Traktörer Aktiebolag case on 7 July 1989;
- the report provided for in Rule of 40 of the Commission's
Rules of Procedure;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the applicant's
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 12 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.
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).
THE LAW
1. The applicant company complains that the withdrawal of its
licence to serve alcoholic beverages violated Article 1 of Protocol
No. 1 (P1-1) to the Convention which provides:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties."
The Commission considers that the withdrawal of the licence
was an interference with the company's right to the peaceful enjoyment
of possessions guaranteed by Article 1 of Protocol No. 1 (P1-1). It
constituted a measure of control of the use of property, which falls
to be examined under the second paragraph of Article 1 of Protocol
No. 1 (P1-1) (cf. Eur. Court H.R., Tre Traktörer Aktiebolag judgment
of 7 July 1989, Series A no. 159, para. 55).
The Commission is satisfied that the decisions complained of
were in conformity with Swedish law and that they were taken in order
"to control the use of property in accordance with the general
interest" (cf. the Tre Traktörer Aktiebolag judgment, loc. cit.,
paras. 56-58). It is furthermore required under Article 1 of Protocol
No. 1 (P1-1) that there was a reasonable relationship between the means
employed and the aim sought to be realised or, in other words, that
there was a fair balance between the demands of the general interest
and the interest of the individual. In determining this issue the
State enjoys a wide margin of appreciation with regard both to
choosing the means of enforcement and to ascertaining whether the
consequences of enforcement are justified in the general interest for
the purpose of achieving the object of the measures in question (see,
inter alia, Eur. Court H.R., Agosi judgment of 24 October 1986, Series
A no. 108, p. 18, para. 52).
Having regard to the State's wide margin of appreciation in
this respect and to the fact that the measure was maintained for only
a limited period of time, the Commission finds that the decisions
complained of cannot be said to have been disproportionate to the
legitimate aim pursued (cf. the Tre Traktörer Aktiebolag judgment,
loc. cit., para. 62).
Consequently, the interference with the applicant company's
right to the peaceful enjoyment of its possessions was justified under
the terms of the second paragraph of Article 1 of Protocol No. 1
(P1-1). It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 of the
Convention.
2. The applicant company further 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 the licence. The company also
invokes Article 13 (Art. 13) of the Convention.
Article 6 (Art. 6) of the Convention provides as follows in
the first sentence of its first paragraph:
"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 considers that these issues cannot be
determined without first having obtained written observations from the
parties. The examination of this part of the application must
therefore be adjourned.
For these reasons, the Commission
DECIDES TO ADJOURN THE EXAMINATION of the procedural
complaint regarding the National Board of Health and Social Welfare's
decision of 28 June 1984 (Articles 6 and 13 of the Convention);
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)
Full & Egal Universal Law Academy