MORÉN AND OTHERS v. SWEDEN
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicants, Mr Gunnar Morén, Mr Erik Magnusson, Mrs Margareta Flink and Mr Bengt Lönnqvist, are Swedish nationals who were born in 1959, 1925, 1935 and 1949, respectively. They all live in Ludvika and were represented by Ms C. Ludvigsson, a lawyer practising in Borlänge. 2. The Swedish Government (“the Government”) were represented by their Agent, Ms H. Kristiansson, of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The mine (Gränsgruvan) was discovered in the county of Dalarna in 1939 by company AJ. In 1941, mining concessions (utmål) were granted for iron and lead ore deposits in the mine as well as in a second mine (Gränsgruvan no. 2) to company AJ. In 1942, the concession area was expanded and, in 1944, mining concessions were granted to company AJ for iron ore deposits at two more mines (Gruvsjöettgruvan and Gruvsjötvågruvan). In 1967, the area was expanded further. In connection with each procedure, certain parts of the properties concerned were bought by company AJ and compensation was paid to the property owners. Certain compensation was also paid to landowners for damage to their forests and land. Extraction of minerals was in progress from 1945 to 1953, and from 1965 to 1972. 5. In 1972 company BM acquired all of the above mining concessions from company AJ, including the properties that company AJ had bought over the years, and undertook mineral extraction from 1973 to 1981. No mineral extraction has taken place since 1981. 6. In December 1998 company BM applied to the Mining Inspectorate of Sweden (Bergsstaten) for an exploitation concession (bearbetnings-koncession) for minerals within the area. The application related to the conversion of the old permits, granted in 1941 and 1944, into one new exploitation concession in accordance with transitional provisions to the new Minerals Act (Minerallagen, 1991:45). In its application, company BM noted, inter alia, that the remaining minerals in the area had been examined mainly to determine whether it would be possible to exploit the minerals with profit since the ore in question had proved difficult to refine with conventional techniques. The calculations had shown good potential and studies were continuing to investigate whether saleable concentrates could be obtained and whether the circulation of processed products could work on a continuous scale. 7. As the applicants’ land was within the defined area, they were informed about the application and given the opportunity to comment. In their submission, they stressed the impact on nature and, in particular, the negative effects that mining could have on nearby water sources which, they considered, should be examined further. 8. On 28 November 2000 the Mining Inspectorate granted company BM an exploitation concession, valid for 25 years. The concession conferred upon the company the right to extract and exploit copper, gold, silver, zinc and lead according to the rules of the Minerals Act within the defined area. Moreover, it was linked to a number of conditions, inter alia, relating to securing the area during exploitation and restoring the area and its nature afterwards. In reaching the decision, the Mining Inspectorate observed that the County Administrative Board (Länsstyrelsen) of the County of Dalarna did not object to the concession being granted and that extensive exploration and development work was already on-going in accordance with the old permits. It further found that no other obstacles existed to granting the concession. 9. In its decision, the Mining Inspectorate further noted that any rights to landowner shares (jordägarandelar) or landowner rent (jordägaravgälder), from which the property owners might have benefited according to the old legislation for the permits, would cease pursuant to the transitional rules of the Minerals Act. However, it also observed that the decision did not affect any agreements that might exist between the concession holder and the landowner. 10. The applicants appealed against the decision to the Government, reiterating their concerns about the negative effects that mining would have on the surrounding nature and water sources. They further strongly objected to the fact that they would not receive any compensation for the minerals that would be extracted from their land. They considered this to be in violation of the Swedish Constitution as well as of the Convention. 11. On 11 September 2003 the Government rejected the appeal as it considered that no grounds had been presented to alter the Mining Inspectorate’s decision. Among other authorities, the Geological Survey of Sweden (Sveriges Geologiska Undersökning) submitted its comments on the appeal to the Government and noted, inter alia, that the decision to grant the exploitation concession had been essentially an administrative measure to convert the old permits to the single new concession but that it did not alter the use of the land within the defined area or any interests. 12. As the applicants were not satisfied with the Government’s decision, they applied to the Supreme Administrative Court (Högsta förvaltningsdomstolen) for judicial review according to the Act on Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205). They relied on Article 1 of Protocol No. 1 to the Convention and claimed that they had been deprived of their property rights since company BM would be able to extract minerals from their land without compensating them. This was also contrary to the custom which had existed in Dalarna since time immemorial. It had been abolished for political reasons through the Mining Act of 1974 (Gruvlagen, 1974:342) but Sweden was obliged to comply with the Convention. 13. On 6 October 2005 the Supreme Administrative Court upheld the Government’s decision in full. It noted that Swedish law allows for various measures to control the use of an individual’s land. Thus, the Minerals Act, as in force at the time of the Mining Inspectorate’s decision, allowed the Mining Inspectorate to grant physical and legal persons the right to explore and extract certain minerals enumerated in the Act even though they did not own the land where the minerals were located. The landowner had the right to receive compensation for any damage or encroachment suffered due to these activities but not for the value of minerals extracted by someone else. The court further observed that Article 1 of Protocol No. 1 to the Convention was not absolute but allowed for certain restrictions. Hence a State could enact such legislation as it considered necessary to regulate the use of property in accordance with the public interest. In these circumstances, the Government’s decision had not been in violation of the Convention or otherwise flawed. 14. Following communication of the application, the Government submitted extracts from the Swedish Real Property Register and informed the Court of the following ownership constellations of the properties affected by the concession and relevant to the present case: 15. Half of the property Ludvika Persbo 56:7 had been bought by the first applicant, Mr Morén, in November 1991 and the second half in December 1991. Thus, since December 1991 the first applicant has been the sole owner of this property. 16. The property Ludvika Persbo 7:14 had been inherited by the second applicant, Mr Magnusson, in November 1968. Thus, since this time, he has been the sole owner of the property. 17. The property Ludvika Persbo 12:13 had been inherited by the third applicant, Mrs Flink, in August 1998. However, in November 2004, she had given it as a gift to Mr L. Flink who, since then, has been the sole owner of the property. 18. The property Ludvika Persbo 25:1 had been inherited by the fourth applicant, Mr Lönnqvist, in November 2000. However, on 23 April 2012 he sold the property to Mr L. Flink who, since this date, has been the sole owner of the property. 19. The first regulations in public law in Sweden concerning mineral exploration and related matters date back to the 14th century. During the 16th century, various royal decrees and statutes were in force with the effect that mines belonged to the Crown. In 1723, a royal statute entered into force establishing the mining claim system which meant that a person who discovered a deposit could be given the exclusive right to extract the deposit if certain formalities had been observed. Landowners were given a landowner share (jordägarandel), namely a 50% share in the mineral extraction. The thinking behind it appears to have been to stop the landowner from preventing prospecting or keeping mineral deposits secret. The meaning of a landowner share was a right to participate in the extraction of the minerals corresponding to one’s share, that is, financial participation was necessary in order to collect income from the share. In 1855 and 1884 new mining statutes were issued through which the state regulated mining in more detail. 20. It was with the enactment of the Mining Act of 1938 (Gruvlagen, 1938:314, hereafter the “1938 Mining Act”) that an essentially comprehensive regulation entered into force. Mining concessions granted under the 1938 Mining Act or under earlier provisions applied indefinitely. The landowner share was removed and replaced by a corresponding share of the Crown. The landowner was instead awarded a landowner rent (jordägaravgäld). The principle of this was that the landowner would receive each year from the owner of the mine an amount equal to 1% of the value of the mineral extracted, but a maximum of SEK 5,000 (later raised to SEK 10,000). The landowner share was to be paid during the first twenty years that the mining operations were in progress. Thus, according to the preparatory works to the Mining Act of 1974 (Government Bill 1974:32, p. 129), the landowner rent was created as compensation to the property owner for the loss of the landowner share. 21. The 1938 Mining Act ceased to apply on 1 July 1974 when the Mining Act of 1974 (Gruvlagen, 1974:342, hereafter the “1974 Mining Act”) entered into force. This Act was also based on the mining claims system, but it had more concessional elements than previous acts. The 1974 Mining Act abolished the landowner rent. However, in the transitional provisions to the 1974 Mining Act, the landowner rent for mining concessions granted under the 1938 Mining Act was retained. Still, under Chapter 14, section 7, paragraph 5, of the transitional provisions to the 1974 Mining Act, all mining concessions granted before the entry into force of that Act would cease to apply on 31 December 1999. The rules on landowner rent would also cease to apply on this date. 22. On 24 January 1991 the Minerals Act (Minerallagen, 1991:451) was promulgated and, on 1 July 1992, it entered into force, replacing the 1974 Mining Act. The Minerals Act is still in force. It is essentially based on the concession system which means that the State, following a discretionary examination, grants individuals the right to prospect for and exploit mineral deposits. Through the Act, the mining claims were replaced by exploration permits (undersökningstillstånd), Chapter 2 of the Minerals Act, and mining concessions were replaced by exploitation concessions (bearbetningskoncessioner), Chapter 4 of the Minerals Act. According to section 7 of that chapter, exploitation concessions are granted for a period of 25 years. 23. According to Chapter 5, section 2, of the Minerals Act, the owner of a real property may exploit deposits of concession minerals for his own domestic use without a concession, provided that no other person holds a concession within the area. 24. Chapter 7 of the Mineral Act contains rules for when compensation may be granted to affected parties. Thus, section 1 provides that damage or encroachment resulting from exploration work shall be compensated by the holder of the exploration permit or concession. Section 2 states that for damage resulting from the granting of an exploitation concession, compensation shall be paid by the concession holder. In the event of exceptional detriment to any property or part thereof by reason of an exploitation concession having been granted, the concession holder shall purchase the property or part of the property suffering such detriment if the owner so requests. Section 3 provides the same obligations for the concession holder, and rights for the property owner, as section 2, in case of damage or encroachment resulting from land or other space being utilised for exploitation or activities connected thereto. 25. When the Minerals Act was enacted it contained no right for landowners to receive any compensation for minerals extracted on their properties. However, on 1 May 2005, a new provision, section 7, was introduced in Chapter 7 of the Minerals Act (through Act 2005:161). According to this provision, for each year that exploitation is undertaken, the concession holder shall pay mineral compensation equal to twothousandths of the calculated value of the minerals covered by the concession that are extracted and brought to the surface within the concession area during the year. Three quarters of the compensation shall be paid to the landowners within the concession area and one-quarter to the State. If there is more than one property within the area, the compensation payable to the landowners shall be determined according to each property’s share of the area. This provision does not have retroactive effect and thus does not apply to exploitation concessions granted prior to 1 May 2005. 26. In the preparatory works to this amendment to the Minerals Act (Government Bill 2004/05:40), the Government noted that the landowner rent had been abolished through the 1974 Mining Act because the Government at the time had considered that there were no reasonable grounds for a landowner, without contributing personally, to receive compensation from the concession holder for minerals extracted (ibid., p. 61 [with reference to Government Bill 1974:32, p. 130]). However, the Government observed that, during recent years, opposition against planned mining activities had become evident and it had led to the mineral legislation as a whole being considered unfair and outdated (ibid., p. 60). Thus, the Government considered that there was a strong general interest to create a Minerals Act which would provide a good framework for entrepreneurial initiatives and investments. It also had to be adapted to global changes and assure a balance between the interests of the landowners and the mining companies (ibid., p. 61). In this respect, the Government noted that the issue of ownership of discovered minerals was unclear in Sweden. They observed that the boundaries of a property in depth and height were contentious and that there was neither any existing legislation nor any preparatory works or literature to clarify the matter. Since the question was complicated and concerned fundamental property legislation, the Government found that there were not enough reasons, in the instant case, to take a stance on the matter (ibid., pp. 60-61). They then noted that landowners’ rights were in various ways limited and controlled by authorities and by others’ rights and that, for a long time, this had been the situation for landowners in relation to concession minerals. However, since landowners previously had received some sort of compensation, and a reintroduction of compensation could contribute to a wider acceptance of the mining industry in Sweden, the Government found that when making an overall assessment, there were now predominant reasons to re-introduce a special system for compensation for minerals extracted (ibid., pp. 62-63).