EHRM, 12-12-2006, nr. 32535/02

The respondent Government claimed that the first applicant's complaints under Article 1 of Protocol No. 1 to the Convention, taken alone or in conjunction with Article 14 of the Convention, as well as its complaint under Article 6 § 1 of the Convention regarding access to court, should be declared inadmissible for being incompatible ratione personae. They argued that there had been no allegation of an interference with the property of the first applicant itself and that, while the new air traffic charges adopted by the CAA were alleged to have determined the civil rights and obligations of the members of the first applicant, and thus to have created for them a right of access to court, this did not mean that the first applicant could be regarded as a victim in this respect. Furthermore, bearing in mind that the first applicant in the domestic proceedings was acting as the representative of its members, the Government questioned whether it could be considered a victim of the alleged violation under Article 6 § 1 regarding the length of the proceedings. In the above respects, the Government observed that, while the first applicant could be claiming to represent its members before the Court, it had not shown that it had instructions from those members to lodge an application on their behalf.

The Government further submitted that the domestic proceedings were aimed at obtaining a review in abstracto of the CAA regulation of 10 December 1998, and that the applicants had made no reference to any specific implementation measure by the CAA through which the regulation was applied in a specific case. Consequently, should the applicants' complaints under Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, be understood to be directed against the adoption and existence of the contested regulation, they should be declared inadmissible as being incompatible ratione personae.

The Government recognised, nevertheless, that the applicants' complaints relating to the imposition of the new air traffic charges conceivably could be construed as being directed against the individual implementing measures taken by the CAA on the basis of the regulation. A multitude of decisions to levy charges are issued each day by the CAA in respect of all flights in Swedish airspace and the members of the first applicant had clearly been affected by such measures. However, while there had been no possibility to appeal against the decision of the CAA to adopt the regulation at issue, its decisions to levy air traffic charges in specific cases were subject to appeal to the Government under section 35, subsection 3 of the CAA Ordinance. Within the framework of such an appeal, the Government would be able to take into account any objections raised by the relevant airline company regarding the lawfulness and validity of the CAA regulation and to determine whether it provided a legal basis for the charges levied in a specific case. The members of the first applicant (including the second applicant) accordingly had at their disposal a remedy for indirectly challenging the regulation. As the applicants had not shown that this remedy had been exhausted, the Government submitted that the complaints under Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, were inadmissible for failure to exhaust domestic remedies.

The Government also claimed that, in respect of the last-mentioned complaints as well as the complaint under Article 6 of the Convention regarding access to court, the applicants had failed to comply with the six-month time-limit. The Government argued that it was clear that the decision of the CAA to adopt the regulation on air traffic charges was not subject to appeal. The appeal lodged by the first applicant as a representative of its members accordingly constituted an ineffective remedy, which could not bring the application within that time-limit. The applicants had not presented any argument to support the conclusion that they should not have been aware of the circumstances preventing that appeal from being considered on the merits by the Government.

The first applicant did not claim to be a direct victim of the alleged violation of Article 1 of Protocol No. 1 to the Convention. However, as its activities were financed by its member companies, it had been indirectly affected by the increased charges. Furthermore, in the domestic proceedings the first applicant had acted on behalf of its members, including the second applicant. It had had the authority to do so, as the objects of the association included representing its members and safeguarding their interests in relation to the Government, Parliament, public authorities and other organisations, as well as actively promoting negotiations regarding fees and other charges. Thus, the first applicant did not need a separate power of attorney for each measure it took within that scope of authority. Moreover, neither the CAA nor the Government had raised any objection on this point.

The applicants further submitted that they were not arguing that the CAA regulation in abstracto was in conflict with the Convention. Rather, they claimed that the CAA had gone beyond the limits of its powers as set out in the Government's letter of regulation and, accordingly, challenged the legality of the regulation. The applicants had been immediately affected by the contested regulation once it had come into force.

Moreover, the applicants maintained that the adequate and only remedy in the case had been the appeal against the decision of the CAA of 10 December 1998 to adopt the regulation which established norms for air traffic charges. They argued that a so-called ‘norm decision’ could involve the exercise of public authority, and consequently be subject to appeal under section 35, subsection 3 of the CAA Ordinance, even if it had only indirect effects on individuals. Claiming that the CAA decision involved such exercise of public authority, the applicants stated that they had had reasonable and legitimate grounds for believing that the decision was subject to appeal. Furthermore, the remedy suggested by the Government — appeals against the individual day-to-day decisions taken by the CAA in respect of charges for each flight — could not be considered effective. The day-to-day decisions were made in the form of commercial invoices, which were not phrased as decisions and did not contain any directions on how to appeal. By appealing against these decisions, it would not be possible to challenge the legality of the norm, i.e. the CAA regulation, and the suggested remedy was not therefore capable of providing the applicants with redress or a reasonable prospect of success.

Finally, the applicants asserted that, in the circumstances, it could not be held against the applicants that they had appealed against the CAA decision of 10 December 1998. Section 35 of the CAA Ordinance, the only provision giving directions in respect of appeals against CAA decisions, was not sufficiently clear. Allegedly, it indicated prima facie that the chosen remedy was effective. The applicants had therefore been entitled to await the outcome of proceedings before the Government before lodging an application with the Court. Maintaining that their appeal had been the sole effective and appropriate remedy, they submitted that the Government's decision of 28 February 2002 to dismiss the appeal must be considered as the final decision in the case. In any event, the fact that it took the Government more than three years to issue that decision constituted sufficient ‘exceptional circumstances’. Accordingly, the six-month time-limit had been complied with.

The Court notes that the Government, on 28 February 2002, dismissed the applicant's appeal against the decision of the CAA of 10 December 1998 to adopt a regulation concerning air traffic charges. The appeal was dismissed without an examination of the merits as there was no provision stating that an appeal lay against such a decision of the CAA. Reference was made to section 35 of the CAA Ordinance. The submissions of the parties to the present case have, in this respect, centred on subsection 3 of that section which stipulates that, in the absence of a specific provision on appeal, decisions in matters concerning ‘the exercise of public authority in respect of an individual’ may nevertheless be appealed to the Government. It follows from the applicants' submissions to the Court and the fact that they lodged an appeal against the CAA's decision with the Government that, in their view, subsection 3 was applicable and that, accordingly the impugned decision was subject to appeal.

The Court reiterates that the six-month time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the final decision after the exhaustion of domestic remedies. However, only remedies which are normal and effective may be taken into account as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention. Thus, where no effective remedy is available in respect of an act or a decision alleged to be in violation of the Convention, the time-limit in principle starts to run from the date on which the impugned act or decision took place or was issued. Nevertheless, special considerations may apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, that the remedy was ineffective. In that situation, the six-month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see, among other authorities, Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000-III (extracts), p. 373, and Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006, unreported).

The Court notes that it is, in the first place, the task of the national authorities to determine and apply domestic law and that, in stating that no appeal lay against the impugned decision of the CAA, the Government found section 35, subsection 3 of the CAA Ordinance to be inapplicable to the instant case. In principle, therefore, the six-month time-limit started to run on 10 December 1998, the date of the CAA's decision. Nevertheless, the Court must determine whether there are special considerations in the instant case which could give reason to calculate the six-month period from 28 February 2002, the date of the Government's decision.

In this respect, the Court reiterates that the regulation adopted by the CAA had a general character, establishing norms for air traffic charges to be imposed on flights in Swedish airspace and on landing and take off at State airports. Furthermore, while the regulation thus affected all airline companies utilising the designated airspace and airports, its application required implementation measures through the daily decisions taken by the CAA, levying charges in respect of each individual flight. The effect of the regulation on the airlines was thus only of an indirect nature.

In these circumstances, the Court finds that the impugned decision of 10 December 1998 cannot reasonably be considered to have involved ‘the exercise of public authority in respect of an individual’. Moreover, it should have been sufficiently clear to the applicants already at the time of their lodging the appeal with the Government that, consequently, section 35, subsection 3 of the CAA Ordinance was not applicable in the instant case and that the said appeal was an ineffective remedy.

In view of the above, the Court cannot find that there are any grounds for calculating the six-month period from the date of the Government's decision to dismiss the applicants' appeal. Accordingly, the decision of the CAA of 10 December 1998 must be considered as the final decision in respect of the applicants' complaints under Article 13 of the Convention and Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, as well as their complaint under Article 6 of the Convention concerning access to court.

Consequently, even assuming that the impugned decision involved a determination of the applicants' civil rights or obligations, the present application, having been lodged on 27 August 2002, was submitted out of time in so far as it concerned the above complaints. The Government's preliminary objection as to the six-month time-limit must therefore be accepted and this aspect of the case rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

In these circumstances and having regard to the conclusion below with regard to the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings, there is no reason for the Court to rule on the other preliminary objections raised by the Government.