CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 octobre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                                  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)