European Court of Human Rights

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 § 1 and 13 (art. 6-1, art. 13).

There appeared before the Court:

- for the Government

       Mr. H. Corell, Ambassador,

                            Under-Secretary for Legal and Consular Affairs, Ministry   

                            for Foreign Affairs,                                                     Agent,

       Mr. P. Löfmarck, Under-Secretary for Legal Affairs,

                            Ministry of Transport and Communications,

       Mr. H. Berglin, Legal Adviser,

                            Ministry for Foreign Affairs,                                  Advisers;

- for the Commission

       Mr. Gaukur Jörundsson,                                                       Delegate;

- for the applicant

       Mr. G. Ravnsborg, Lecturer in Law

                            at the University of Lund,                                        Counsel.

The Court heard addresses by Mr. Corell for the Government, by Mr. Gaukur Jörundsson for the Commission and by Mr. Ravnsborg for the applicant, as well as their replies to its questions.

AS TO THE FACTS

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

A. County Traffic Company’s application to the County Administrative Board

In support of its application, the Company submitted that two traffic services in two different regions were to be united into one regular service with a single time-table, to be provided by the bus service business owned by Mr. Wälimaa and others.

The applicant opposed the revocation of his licence.

B. Decision to revoke Mr. Pudas’ licence

"The plans for the future transport service offered by the County Company include a regular bus service which is to be created between the places in question. Such a plan will, in the opinion of the Board, enable a better network of routes to be created for the area and transport to be co-ordinated in one route. Bearing this in mind, it is the opinion of the Board that the transport service in the area will be improved in such a way that the licence applied for by the County Company cannot be refused. Consequently, the former licences, issued to (the applicant) and Mr. Wälimaa, shall be revoked."

By virtue of a subsequent order, Mr. Pudas’ licence was to cease to be valid as from the date on which the revocation of 17 August became final. Shortly thereafter, the County Traffic Company contracted out to the company owned by Mr. Wälimaa and others the running of a bus service on the routes covered by its new licence.

C. Appeals by Mr. Pudas against the revocation of his licence

The Board of Transport rejected the appeal on 14 May 1982.

II.   RELEVANT DOMESTIC LAW

A. General description of the licence system

Section 4 in Chapter 1 of the 1979 Act defines commercial transport as a transport service of goods or passengers by car, truck or bus offered to the public for a fee. Such service may only be performed by persons possessing a transport licence (Chapter 2, section 1).

B. Conditions for the issue of licences

- transport on request, where the vehicle, with a driver, is put at the customer’s disposal and the price is determined according to the customer’s use of it (beställningstrafik);

- tourist transport, which comprises commissioned tours for sightseeing, etc. (turisttrafik); and

- regular transport on defined routes within or between specified urban areas - interurban traffic (linjetrafik) -, where the vehicle is not put at the customer’s disposal.

Only persons (physical or legal) deemed suitable to conduct the service may obtain a licence. In examining applications, such factors as professional skill and personal and economic circumstances are considered, with a view to ensuring that the transport is effected under safe conditions by economically stable undertakings (Chapter 2, section 3, of the 1979 Act). A further condition is that the intended service is deemed necessary and appropriate (Chapter 2, section 11). The reason for this is the overall objective of establishing an adequate transport network and preventing any harmful surplus service. This objective extends to ensuring that transport operators who work on days and at hours that are not profitable are not exposed to uncontrolled competition from others who only provide a service when profitable.

The licensing authority makes licences to carry passengers on interurban routes subject to specific conditions, concerning such matters as routes and time-tables (Chapter 2, section 23, and Chapter 3, sections 5 and 6, of the 1979 Ordinance). The Board of Transport sets the rates to be charged (ibid., Chapter 3, sections 1 to 3).

C. Organisation and administration of the transport system

The Principal, which is constituted by the County Council (landstinget) and the local municipalities (kommunerna) together, has overall responsibility for public transport within the county. In some counties the Principal’s tasks are carried out by a public entity (kommunalförbund). However, in most counties, including that of Norrbotten, they are performed by a company, known as the County Traffic Company, which is wholly owned by the County Council and the municipalities.

The Principal may either hold the licences itself or operate a system under which they are held by private transporters. In the former event, the Principal may provide the service under its own management or arrange for private persons to run the traffic under contract. Even where the licence-holder is a private transporter, he is dependent on funding from the Principal in order to cover deficits.

D. Conditions for revocation of licences to carry passengers on interurban routes

A licence must also be revoked where, inter alia, a municipality or a Principal applies for a licence and establishes that the transport facilities in the area will probably be improved if it takes over the licence itself (Chapter 3, section 5, of the 1979 Act). In addition, a licence may be revoked, following an application by a prospective transporter, when there are good grounds to suppose that this will be conducive to the most rational organisation of transport.

E. Remedies available against revocation of licences to carry passengers on interurban routes

Judicial review of the administration’s acts is therefore primarily a matter for administrative courts. These courts comprise three levels: the county administrative courts (länsrätterna); the administrative courts of appeal (kammarrätterna); and the Supreme Administrative Court (regeringsrätten). They are composed of independent judges and enjoy, as a rule, wide powers which enable them not only to set aside administrative acts but also to vary or substitute them.

This principle is subject to an important exception, in that no appeal may be made against decisions of the Government. There is, however, a limited possibility to file a petition with the Supreme Administrative Court for re-opening of the proceedings (resningsansökan) in respect of decisions of the Government as well as other authorities. Further particulars regarding this remedy appear in the Sporrong and Lönnroth judgment of 23 September 1982 (Series A no. 52, pp. 19-20, § 50).

According to section 2, acts of public authorities may give rise to an entitlement to compensation in the event of fault or negligence.

However, under section 7, an action for damages will not lie in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court or the National Social Security Court.

The Board must give the parties the opportunity to state their case in writing or orally. The Board may also have an enquiry carried out by independent experts. The expenses of the proceedings are to be borne, as a rule, by the new holder of the licence.

The Board is composed of a chairman and two other members. The chairman must be an experienced judge.

PROCEEDINGS BEFORE THE COMMISSION

In its report of 4 December 1985 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a breach of Article 6 § 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13).

The full text of the Commission’s opinion is reproduced as an annex to the present judgment.

AS TO THE LAW

I.   ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal ..."

A. Applicability of Article 6 § 1 (art. 6-1)

1. Existence of a "contestation" (dispute) over a "right"

(a)   Conformity with the spirit of the Convention requires that the word "contestation" (dispute) should not be construed too technically and should be given a substantive rather than a formal meaning.

(b)   The "contestation" (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. It may concern both questions of fact and questions of law.

(c)   It must be genuine and of a serious nature.

(d)   The expression "contestations sur (des) droits et obligations de caractère civil" (disputes over civil rights and obligations) covers all proceedings the result of which is decisive for such rights and obligations. However, a tenuous connection or remote consequences do not suffice for Article 6 § 1 (art. 6-1): civil rights and obligations must be the object - or one of the objects - of the "contestation" (dispute); the result of the proceedings must be directly decisive for such a right.

To begin with, subject to the possibility of its being revoked, the licence conferred a "right" on the applicant in the form of an authorisation to carry out a transport service in accordance with the conditions prescribed in it and laid down by domestic law (see paragraphs 9, 16 and 17 above). It is true that the licence did not specify the conditions on which it could be revoked and that the law allows a certain discretion as regards revocation, but it follows from generally recognised legal and administrative principles that the authorities did not have an unfettered discretion in this respect.

The applicant could plausibly and arguably maintain that according to Swedish law he was entitled to continue his business under the licence. The Court notes that in his appeal to the Board of Transport, he contended the following (see paragraph 13 above): the County Traffic Company’s application to the County Administrative Board for a transfer of his licence was not motivated by any public interest in improving the transport service on the routes in question, but by an arrangement between the Company and another transport business; transport service was not likely to be improved if it were carried out by this other business rather than by his own. He was, as the Delegate of the Commission pointed out at the hearing, thus challenging not only the wisdom of the revocation as a matter of policy but also its lawfulness.

In addition, the proceedings complained of were capable of leading - and did in the event lead - to confirmation of the decision being challenged, namely the revocation by the County Administrative Board of the applicant’s licence; they were therefore directly decisive for the right at issue.

2. Civil character of the right

(a) Relevant principles

(b) Application of these principles in the instant case

Administrative authorisation, the Government further submitted, is required to carry out the activities in question and such authorisation - as well as, where appropriate, its revocation - depends partly on a discretionary assessment, for example of the necessity and appropriateness of a given service on a given route. A licence, if granted, is normally subject to a number of conditions as to, for instance, the routes to be covered, the regularity of the service offered and the maximum rates to be charged. To the extent that it may be said that the applicant entered into contractual relationships with his customers, he was legally obliged to do so. In short, the applicant had to perform a service regulated in almost every detail by the public authorities. These regulations are provided for by law mainly with a view to securing the public interest of having a rational transport system (see paragraphs 16, 17 and 21 above).

Finally, unlike the situation of a businessman operating in the private sector, a substantial, and often even a major, part of the licence-holder’s costs of running the business is covered out of public funds (see paragraph 18 above).

B. Compliance with Article 6 § 1 (art. 6-1)

C. Conclusion

II.   ALLEGED BREACH OF ARTICLE 13 (art. 13) OF THE CONVENTION

Having regard to its decision on Article 6 § 1 (art. 6-1), the Court, like the Commission, does not find it necessary to examine the case under Article 13 (art. 13); this is because its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (art. 6-1) (see the above-mentioned W v. the United Kingdom judgment, Series A no. 121, p. 37, § 86).

III.  ALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)

Although the Commission declared this claim inadmissible, the applicant maintained it in his memorial to the Court. However, he did not revert to the matter during the subsequent public hearing. In those circumstances, the Court considers that it is not called upon to examine whether it has jurisdiction to entertain the complaint under Article 1 of Protocol No. 1 (P1-1) and, if so, whether there has been a breach of this provision.

IV.   APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

By way of just satisfaction, Mr. Pudas sought financial compensation for prejudice allegedly suffered and reimbursement of costs and expenses.

A. Damage

B. Costs and expenses

(a) 14,000 SEK for travel, effected by himself, his counsel (Mr. Andersson) and his personal adviser (Mr. Puranen), to the County Administrative Board in Luleå and to the Government offices in Stockholm for meetings with the Minister of Transport and Communications;

(b) 3,100 SEK for Mr. Andersson’s fees in connection with his representation before the national authorities;

(c) 3,000 SEK for "research (compensation for travel and subsistence allowance)", paid to Mr. Puranen;

(d) 5,000 SEK for "loss of ordinary income" incurred by Mr. Puranen;

(e) 126,000 SEK for lawyer’s fees (90 hours at 1,400 SEK per hour) paid in connection with his representation before the Strasbourg institutions.

In these circumstances, the Court is unable to award the totality of the amount claimed; it considers on an equitable basis that the applicant is entitled to recover as reasonable reimbursement for the fees in question the sum of 50,000 SEK, from which must be deducted the 2,720 French francs (FF) already received from the Council of Europe in respect of legal costs.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that Article 6 § 1 (art. 6-1) of the Convention applied in the instant case;

2. Holds that the said Article 6 § 1 (art. 6-1) has been violated;

3. Holds that it is not necessary also to examine the case either under Article 13 (art. 13) of the Convention or under Article 1 of Protocol No. 1 (P1-1);

4. Holds that the respondent State is to pay to the applicant, in respect of non-pecuniary damage, 20,000 (twenty thousand) Swedish crowns and, in respect of costs and expenses, 56,100 (fifty-six thousand one hundred) Swedish crowns, less 2,720 (two thousand seven hundred and twenty) French francs to be converted into Swedish crowns at the rate applicable on the date of delivery of the present judgment;

5. Rejects the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 October 1987.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the separate opinion of Mr. De Meyer is annexed to the present judgment.

R.R.

M.-A.E.

SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

While concurring in the result, I very much regret that I cannot agree with certain parts of the supporting reasoning in the judgment.