AS TO THE ADMISSIBILITY OF
by Hubert ANKARCRONA
The European Court of Human Rights (First Section), sitting on 27 June 2000 as a Chamber composed of
Mrs W. Thomassen, President,
Mrs E. Palm,
Mr Gaukur Jörundsson,
Mr R. Türmen,
Mr C. Bîrsan,
Mr J. Casadevall,
Mr R. Maruste, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 13 December 1996 and registered on 6 March 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant is a Swedish national, born in 1949 and living in Upplands Väsby. He is represented before the Court by Mr Jan Södergren, a lawyer practising in Stockholm.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the sole shareholder of a Swedish limited liability company, Skyddsvakt Hubert Ankarcrona AB. The company is licensed to trade in certain specified military equipment. By Government decision of 30 November 1995, the company was granted a licence, valid until 30 November 2000, to trade in, inter alia, salvage vehicles and amphibious crafts.
It appears that the company bought some military equipment, including armoured vehicles, in the United Kingdom which were not covered by the above licence. Subsequently, after that purchase, the company requested that the licence be extended to cover, inter alia, armoured vehicles.
On 26 June 1996 the company's request for an extended licence was rejected by the National Inspectorate of Strategic Products (Inspektionen för strategiska produkter; hereinafter “the Inspectorate”). The Inspectorate stated that licences are given on a very restrictive basis and that it did not find any reason to extend the company's existing licence. On 27 November 1996 the Inspectorate rejected, with the same reasons, a renewed application from the company. No appeal lay against the Inspectorate's decisions.
B. Relevant domestic law
Chapter 2, Section 20, sub-section 1 of the Instrument of Government (regerings-formen) provides that restrictions may be introduced in the right to trade or practise a profession only in order to protect significant public interests and never solely in order to further the financial interests of particular persons or firms.
The 1992 Military Equipment Act (lagen om krigsmateriel; hereinafter “1992 Act”) regulates activities which involve, inter alia, the manufacture, supply and export of military equipment. Thus, the Act covers weapons, ammunition and other equipment designed for military use, which constitute military equipment according to regulations issued by the Government. Such regulations are found in an annex to the 1992 Military Equipment Ordinance (förordningen om krigsmateriel).
According to the 1992 Act, there is a general prohibition against the manufacture, supply and export of military equipment (Sections 3–6). A special permit or licence is required if an exception to the general rule is to be made. Prior to 1996, the Government decided, directly, in all matters concerning, inter alia, the supply of military equipment. Matters of routine character were determined by the responsible minister. As from 1 January 1996, the Inspectorate is the Swedish authority that examines applications for permits under the 1992 Act. However, in cases where the Inspectorate deems a matter under the 1992 Act to be of principle significance or otherwise of special importance, the matter shall be referred to the Government for consideration (Section 1a).
Permits under the 1992 Act to manufacture, supply and export military equipment may be granted only if supported by security or defence policy reasons and provided that such permits are not in conflict with Swedish foreign policy (Section 1). In the travaux préparatoires to the Act (cf. Government Bill 1991/92 No. 174), directives were given on how to apply this rule. The Government's earlier decisions in similar matters would serve as guidance in the examination of other, future cases and thus be taken into account by the Inspectorate in its application of the Act. According to the principles thus emanating from the Government's earlier practice, a permit should be granted only if this was necessary for a supply of military equipment and the need for know-how in this area. A further requirement was that the granting of a permit must not be contrary to Swedish foreign policy goals and to the principles on which that policy is based.
A permit granted under the 1992 Act may, as a main rule, be cancelled at any point in time if the permit holder has disregarded a regulation contained in the Act, or a regulation, requirement or provision issued under the Act or if there are other special reasons for such a cancellation (Section 16).
An appeal against a decision by the Inspectorate to cancel a permit in accordance with Section 16 of the 1992 Act or to determine a fee under its Section 22 may be brought before the administrative courts. An appeal may not be lodged against any other decision by the Inspectorate under the Act (Section 23a).
If the Inspectorate has referred a matter to the Government for consideration in accordance with Section 1a of the 1992 Act, an application for judicial review may be lodged with the Supreme Administrative Court (Regeringsrätten) in accordance with the 1988 Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut). This is, however, only the case if the Government have decided to cancel a permit to manufacture or to supply military equipment in accordance with Section 3 or 4 of the 1992 Act.
The issue of appeal was discussed in connection with the establishment of the Inspectorate (cf. Government Bill 1995/96 No. 31). Considerations pertaining to national defence, security and foreign policy were the only considerations that were deemed relevant and which were to be decisive for the outcome of a permit matter under the 1992 Act. Private interests, such as an applicant company's interest in disposing of its products on the military equipment market, were to be afforded no relevance. The fact that the authority determining a permit matter should not include such interests in its assessment also motivated that it should not be possible to pursue such interests on appeal or in an application for judicial review. The situation was, however, deemed to be different when the cancellation of a permit was at stake. The starting-point here was that the permit holder was entitled to keep the permit. Considerations pertaining to the legal rights of the individual or the individual company in question were deemed to be of more relevance in this context. It was, however, also stressed that the courts could not be expected to make assessments that were of a pronounced political nature (ibid., pp. 34–35).
1. Invoking Article 6 § 1 of the Convention, the applicant complains that it was not possible to appeal against the Inspectorate's decision of 27 November 1996. He maintains that the company was therefore denied access to court.
2. The applicant also complains that, as a consequence of the aforementioned decision, the company cannot trade in or, in any other way, make commercial use of the equipment in question. Therefore, the company's right to peaceful enjoyment of its possessions has allegedly been violated. In this respect the applicant invokes Article 1 of Protocol No. 1 to the Convention.
1. According to Article 34 (former Article 25) of the Convention, the Court may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.
This provision requires that an individual applicant should claim to have been directly and actually affected by the violation he alleges (cf., e.g., the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 90–91, §§ 239–240).
The Government question whether the applicant may claim to be a victim within the meaning of Article 34 of the Convention, having regard to the fact that the contested decision to reject the application for a permit to supply military equipment was addressed to the legal entity Skyddsvakt Herbert Ankarcrona AB and that the same applies to the other decisions submitted by the applicant in support of his application.
The applicant submits that he and his business are in practice the same and that he must therefore be regarded as a victim within the meaning of Article 34 of the Convention.
In the instant case, the Court recalls that the applicant is the sole owner of Skyddsvakt Herbert Ankarcrona AB. Consequently, and contrary to what was the situation in, for example, the Agrotexim and Others v. Greece judgment of 24 October 1995 (Series A no. 330-A, p. 25, § 65), where the applicant companies in that case owned only about half of the shares in the company in question, there is no risk of differences of opinion among shareholders or between shareholders and a board of directors as to the reality of infringements of the rights protected under the Convention and its Protocols or concerning the most appropriate way of reacting to such infringements.
Having regard to the absence of competing interests which could create difficulties, for example, in determining who is entitled to apply to the Court and in the light of the circumstances of the case as a whole, the applicant can, in the Court's opinion, reasonably claim to be a victim within the meaning of Article 34 of the Convention, in so far as the impugned measures taken with regard to his company are concerned.
2. The applicant complains that it was not possible to appeal against the Inspectorate's decision of 27 November 1996 and that his company was therefore allegedly denied access to court. He invokes in this respect Article 6 § 1 of the Convention, which, so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law ...”
For Article 6 § 1 under its “civil” head to be applicable, there must be a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise (cf., e.g., the Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, § 22). The outcome of the proceedings must be directly decisive for the right in question (cf., e.g., the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 45–46, § 56).
In the Government's opinion the applicant – or rather his company – could derive no right from the national legislation to a permit to supply military equipment. This is so, according to the Government, due to the fact that a permit, under the 1992 Act, may be granted on the basis of an assessment of the need for that permit from the viewpoint of defence and security policy and provided that the granting of the permit would not be in conflict with Swedish foreign policy, whereas no attention whatsoever is paid to the applicant's own need of such a permit. In other words, the Government maintain, the competent authorities' discretion in matters like this could be described as unfettered, for which reason no actual right is recognised in domestic law.
Furthermore, the Government maintain that the fact that the applicant's company was already permitted to supply or trade in certain kinds of military equipment – other than the kind now at issue – is of no relevance to the question of whether a right under national law to supply a completely different kind of equipment could be said to be recognised.
Under all circumstances, the Government are of the opinion that a right to supply military equipment could not be considered a “civil right” within the meaning of Article 6 § 1 of the Convention. The reasons for this are, in the Government's view, twofold and relate, firstly, to the public-law features of the relevant domestic legislation and, secondly, to the fact that the business of the applicant's company was not based on the marketing and selling of the equipment referred to in the application that was turned down on 27 November 1996.
The Government also submit that the concerns involved in permit matters under the 1992 Act are generally of a political nature and therefore not well suited for court examination. An assessment of the political concerns involved would allegedly be so far removed from the exercise of the normal judicial function that the safeguards in Article 6 of the Convention could not allegedly be taken as covering resultant disagreements. There was thus, in the Government's view, no “dispute” within the meaning of the said Article.
The applicant maintains that the underlying principle at stake in the instant case is the freedom of trade, which is allegedly a “civil right” guaranteed by Article 1 of Protocol No. 1 to the Convention and also by the Swedish Constitution. The provisions of the 1992 Act constitute, in the applicant's view, a limitation of this right which is neither proportionate nor legitimate for the aim pursued.
As to whether a “dispute” over a “right” existed so as to attract the applicability of Article 6 § 1, the Court will first address the issue whether a “right” to trade with military equipment could arguably be said to be recognised under national law.
In view of the status of the Convention within the legal order of Sweden, the Court observes firstly that the Convention does not grant to individuals or companies the right to trade with military equipment, whether in the form of, for example, military vehicles, ammunition, conventional weapons or weapons of mass destruction. Such a right can be derived neither from Article 6 § 1 nor from any other provision of the Convention or its Protocols. It follows that the question whether such a right can be said in any particular case to exist must be answered solely with reference to domestic law.
In this connection, in deciding whether a “right”, civil or otherwise, could arguably be said to be recognised by Swedish law, the Court must have regard to the wording of the relevant legal provisions and to the way in which these provisions are interpreted by the domestic authorities.
The Court recalls in this respect that the 1992 Act poses a general ban on, inter alia, the supply of military equipment. However, despite this prohibition, a permit may be given to supply such equipment, provided it is considered to be in line with Swedish national policy. As stated above, a permit may be granted only if such a measure is supported by security or defence policy reasons and provided that it is not in conflict with Swedish foreign policy. Consequently, considerations pertaining to national defence, security and foreign policy are the only considerations which are relevant and decisive for the outcome of a permit matter under the 1992 Act. Private interests, such as a trader's interest in disposing of products on the military equipment market, are irrelevant. The fact that the authority determining a permit matter should not have regard to such interests in its assessment is also the reason for why it is not possible to pursue such interests on appeal or in an application for judicial review.
The grant to a public authority of such a measure of, in practice unfettered, discretion clearly indicates that no actual right can be said to be recognised in law (cf., e.g., the Masson and Van Zon v. the Netherlands judgment, Series A no. 327, p. 19, § 51). In this context, the Court notes that the instant case manifestly differs from situations where a state has introduced an actual right which can be related to certain tangible criteria, the existence of which can without particular difficulties be examined by the competent authorities and, subject to appeal, the national courts. It is clear that such rights fall within the scope of Article 6 § 1, whether they concern, for example, the right to social security and social assistance (cf., e.g., the Feldbrugge v. the Netherlands judgment of 29 May 1986, Series A no. 99), the right to a public service transport licence (cf., e.g., the Pudas v. Sweden judgment of 27 October 1987, Series A no. 125-A), or the right to an alcoholic licence (cf., e.g., the Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159).
The 1992 Act contains no such applicable criteria, but leaves it entirely to the discretion of the Inspectorate, and previously the Government, to decide, in the light of an assessment of national security policies and current regional and global security situations, whether a permit shall be granted or not. In no way is the situation or needs of the applicant in question decisive to the outcome of this evaluation. On the contrary, no regard at all is paid to such circumstances.
In view of the above considerations, the Court concludes that, whether or not the impugned proceedings involved a “dispute” for the purposes of Article 6 § 1, the claims asserted by the applicant did not in any event concern a “right” which could arguably be said to be recognised under the law of Sweden. This being so, Article 6 § 1 of the Convention was not applicable to the impugned proceedings and has therefore not been violated in relation to the applicant.
It follows that this part of the application is incompatible ratione materiae within the meaning of Article 35 § 3 of the Convention.
3. Lastly, the applicant complains that, as a consequence of the Inspectorate's decision, the company cannot make commercial use of the equipment in question. Therefore, the company's right to peaceful enjoyment of its possessions has allegedly been violated. In this respect the applicant invokes Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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 Court notes that the applicant has not been deprived of any property. Furthermore, it is undisputed that the measure taken by the Inspectorate was in accordance with the law. The refusal to grant the permit which had as a consequence that the applicant could not make commercial use of the military equipment in question may, however, be construed as a control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 to the Convention.
The Court recalls in this connection that under this provision the scrutiny it exercises consists in examining the proportionality of a control measure to the aim sought to be achieved (cf., e.g., application no. 14570/89, decision of 1 July 1993, DR 75, p. 5). In the present case the Court recalls that the aim sought to be achieved was to secure that the trade with certain military equipment would be in line with Sweden's national and international obligations and interests. The Court considers that this aim was certainly in the general interest within the meaning of Article 1 § 2 of Protocol No. 1 to the Convention. Furthermore, the Court considers that in the circumstances of this case the refusal to grant the permit was proportional to the aim sought to be achieved. Accordingly, the interference with the applicant's property was justified under the second paragraph of Article 1 of Protocol No. 1 to the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O'Boyle Wilhelmina Thomassen
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