SIGURJÓNSSON v. ICELAND
Doc ref: 16130/90 • ECHR ID: 001-45550
Document date: May 15, 1992
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16130/90
Sigurour SIGURJONSSON
against
ICELAND
REPORT OF THE COMMISSION
(adopted on 15 May 1992)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-4) . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-9) . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 10-14) . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15-42) . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 15-38) . . . . . . . . . . . . . . . . . . 3
B.Relevant domestic law
(paras. 39-42) . . . . . . . . . . . . . . . . . . 8
III. OPINION OF THE COMMISSION
(paras. 43-81). . . . . . . . . . . . . . . . . . . . .34
A. Complaint declared admissible
(para. 43) . . . . . . . . . . . . . . . . . . . .34
B. Point at issue
(para. 44) . . . . . . . . . . . . . . . . . . . .34
C. Article 11 of the Convention
(paras. 45-71) . . . . . . . . . . . . . . . . . .34
D. Articles 9 and 10 of the Convention
(paras. 72-74) . . . . . . . . . . . . . . . . . .39
E. Article 13 of the Convention
(paras. 75-78) . . . . . . . . . . . . . . . . . .39
F. Recapitulation
(paras. 79-81) . . . . . . . . . . . . . . . . . .40
Dissenting opinion by Mr. S. Trechsel . . . . . . . . . . . . . . .41
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .42
APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . . . .43
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The Application
2. The applicant is an Icelandic citizen, born in 1952. He is a taxi
driver and resides in Reykjavík. In the proceedings before the
Commission the applicant is represented by
Mr. Jón Steinar Gunnlaugsson, a lawyer practising in Reykjavík.
3. The application is directed against Iceland. The respondent
Government are represented by their Agent, Mr. porsteinn Geirsson of
the Ministry of Justice and Ecclesiastical Affairs.
4. The case concerns the applicant's obligation to be a member of
a trade union in order to obtain or keep a licence to operate a
taxicab. The applicant considers that this obligation violates his
right to freedom of association and he invokes Article 11 of the
Convention or, in the alternative, Articles 9, 10 and 13 of the
Convention.
B. The Proceedings
5. The application was introduced on 22 December 1989 and registered
on 2 February 1990. On 2 July 1990 the Commission decided in accordance
with Rule 48 para. 2 (b) of its Rules of Procedure to give notice of
the application to the respondent Government and to invite them to
present, before 12 October 1990, their observations in writing on the
admissibility and merits of the application.
6. The Government submitted their observations on 11 December 1990
after two extensions of the time-limit. The applicant's written
observations in reply were submitted on 28 January 1991.
7. On 10 July 1991 the Commission decided to declare the application
admissible and the parties were then invited to submit any additional
observations on the merits which they wished to make. No further
observations on the merits were received from the parties.
8. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 21 February 1992.
9. After declaring the case admissible the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Active consultations with the parties took
place between 15 July 1991 and 20 January 1992. In the light of the
parties' reaction, the Commission now finds that there is no basis upon
which such a settlement can be effected.
C. The Present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M. P. PELLONPÄÄ
B. MARXER
11. The text of this Report was adopted on 15 May 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The Particular Circumstances of the Case
15. On 26 September 1984 the applicant applied for a licence to
operate a taxicab. The application was written on a printed form for
the purpose and was, according to its printed text, addressed to the
Frami Automobile Drivers' Association (hereafter called Frami). It
stated inter alia that the applicant had until September 1984 operated,
on behalf of another person, a taxicab accommodating up to eight
passengers for more than seven years and furthermore contained the
following declaration:
(translation)
"If an operating licence is granted to me I undertake the
obligation of operating my automobile as full-time
occupation. I also undertake the obligation of observing
the provisions of the said regulation in full detail, as
effective at any particular time, and I am aware that in
case I violate the regulation my professional licence may
be suspended or permanently revoked. I am also aware that
when becoming a member of the Frami Automobile Drivers'
Association I am obliged to pay to the association the
charges stipulated by its articles."
16. The applicant's application was considered on the basis of Act
No. 36/1970 on Motor Vehicles for Public Hire (lög Nr. 36/1970 um
leigubifreidar) then in force, and Regulation No. 320/1983 issued by
the Minister of Communications in accordance with Section 10 of the
Act. This regulation provided for the implementation of the Act in
further detail.
17. Section 6 of the Regulation provided that operating licences
should be issued by three persons called "licence allotters". One of
them was appointed by the directors of Frami, one by employees who did
not own the taxicabs they operated, and the chairman by the Minister
of Communications. Furthermore, Section 6 provided that the operating
licences should be numbered and limited to the licence holders
personally. The licences should be deposited with Frami. Section 7
of the Regulation obliged the licence allotters to supervise that the
laws and regulations relating to motor vehicles for public hire were
observed, and provided that, in cases of a violation by a licence
holder, his licence could be suspended or, in cases of serious or
repeated violations, permanently revoked. A new Regulation
(No. 293/1985) subsequently entered into force. It did not amend the
above provisions except for the fact that the "licence allotters" were
now called the Committee for Taxicab Supervision (hereafter called the
Committee).
18. The decisions of the Committee suspending or revoking a licence
could be appealed to the Minister of Communications.
19. As regards a licence holder's affiliation with Frami, Section 8
of the Regulation stated:
(translation)
"A driver may not be granted an operating licence unless he
undertakes the obligation of operating his own taxicab as
full-time occupation and applies for membership of the
Frami Automobile Drivers' Association."
20. On the basis of the above Act and Regulation the applicant was
granted an operating licence by the then "licence allotters" (now the
Committee). It was issued on 24 October 1984 as licence no. 1210 and
contained inter alia the following:
(translation)
"This operating licence is issued in conformity with the
regulation in respect of limitation of taxicabs in Reykjavík and
the allocation of operating licences, and permits the licence
holder to operate a single taxicab accommodating up to eight
passengers, for service in Reykjavík from a taxi station approved
by the town council. If the licence holder violates the said
regulation, as effective at any particular time, the licence
allotter may revoke his operating licence temporarily, or
permanently in case of repeated violations."
21. On the same day the applicant signed a declaration where he,
inter alia, undertook to observe the provisions of the Regulation in
full, and declared that he was aware that a violation of the Regulation
could lead to a suspension or permanent revocation of his operating
licence.
22. Having received his operating licence, the applicant paid his
membership fees to Frami. This continued until August 1985 when he
ceased paying his membership fees. In reply to Frami's notification of
5 February 1986 concerning the planned suspension of station services
by reason of default on membership fees the applicant informed the
association's directors by letter of 14 February 1986 as follows:
(translation)
"You know my stand with regard to the Frami interest
association and that it is not my desire to be a member of
such an association as Frami is. And I refuse completely to
put up with such oppression any longer as to be forced to
pay membership dues to you and to remain within the
association. The reason why I accepted an 'operating
licence' without first securing my legal position with
regard to membership was that I felt at the moment that I
was not financially capable of initiating the necessary
measures; as you know such action would have meant that I
would not have obtained an 'operating licence' until
judgment had been rendered, and trying one's best to avoid
time-consuming litigation is only natural. The reason why
I paid membership dues to Frami to August 1985 is the same.
..."
23. On 30 June 1986 the Committee informed the applicant that it had
approved a request from Frami to revoke his licence as from July 1986.
The reasons for this were that he had not paid membership fees and that
he had "encouraged and/or tolerated, in his capacity as director of
Steindór's Taxi Station, that persons were transported for charge in
the delivery vans of Sendibílar Ltd.", a company which he owned in part
and in which he was chairman of its board of directors.
24. On 1 July 1986 the applicant complained to the Ministry of
Communications of the revocation of his licence. He expressed the
opinion that there could be no justification for compelling him to be
a member of Frami, and declared that he would refer the question of the
revocation of his licence to the courts.
25. The Ministry of Communications answered the applicant by letter
of 17 July 1986, stating inter alia:
(translation)
"The Ministry hereby informs you that, following an
examination of the matter and with reference to the reasons
given by the Supervision Committee and to Sections 7 and 12
of Regulation No. 293/1985, the Committee's decision of
30 June, last, revoking your licence permitting you the
operation of taxicabs for the transport of persons, is
confirmed."
26. The Ministry of Communications sent a copy of its letter to the
Chief of Police of Reykjavík.
27. The applicant refused, however, to accept this. On 28 July 1986
he sent a letter to the Chief of Police of Reykjavík in which he
explained that he regarded the revocation of his operating licence as
unlawful. He stated his intention of bringing a lawsuit for a
declaratory judgment confirming this view following the courts' summer
recess. His main arguments were set out in the letter and the police
was requested not to interfere with his occupation as taxicab operator.
The Chief of Police took no account of this request. On 1 August 1986
the police stopped the applicant while driving, and removed the plates
from his vehicle which identified it as a vehicle for public hire.
28. On 18 September 1986 the applicant instituted proceedings against
the Committee and the Minister of Communications in the Civil Court of
Reykjavík. The applicant maintained that the revocation of his taxi
licence should be declared null and void.
29. The applicant's claim in court was based, inter alia, on the
argument that, with reference to Sections 69 and 73 of the Icelandic
Constitution, the view could not be sustained that a person could be
compelled to be a member of an association. If people were free to
form associations for any lawful purpose in accordance with their
desires, opinions or interests, they would have to be granted the right
to refuse membership of associations. If not, people could be forced
to work against their own desires, opinions or interests. Least of all
would it be possible to make a person's right to pursue an occupation
conditional on the membership of an association of which he did not
desire to be a member.
30. The applicant referred to his political opinions maintaining that
access to occupation should not be limited in the way done by the
association. Secondly, he was opposed to such restraints on account
of his own interests, considering that he would be better able to
pursue his occupation in a free market system.
31. The applicant furthermore maintained that if the above arguments
were rejected, a duty to be a member of an association would at least
have to be based on statute law enacted by Parliament. Provisions
contained in a Regulation issued by a Minister of the Government would
not suffice to legally establish such duty. Finally, the applicant
argued that failure to pay membership fees to Frami could not justify
a revocation of his operating licence.
32. Judgment was pronounced in the Civil Court of Reykjavík on
17 July 1987, rejecting the applicant's claims. He appealed against
the judgment to the Supreme Court of Iceland maintaining his above
views. Judgment was pronounced by seven judges on 15 December 1988.
33. The Supreme Court first examined the applicant's complaints under
Section 73 of the Constitution. It rejected, unanimously, the
applicant's argument that he could not, on account of this provision,
be obliged to remain a member of Frami. The Court stated in this
respect as follows:
(translation)
"This provision of the Constitution is unchanged in
substance from Section 55 of the Constitution relating to
Matters Particular to Iceland, of 5 January 1874, which in
turn was adopted from Section 92 of the Danish Constitution
of 5 June 1849. When interpreting this provision its
history must be kept in view, and its purpose at the time
when it entered into force, which was to secure the right
of the subjects to form associations without permits being
obtained from the authorities in advance. The provision was
only intended to protect the formation of associations as
such, but not a right of remaining outside associations.
The appellant has not demonstrated that Section 73 of the
Constitution conflicts with the provisions of the
international instruments to which he refers, which are
described in the judgment appealed from; neither would
this, by itself, affect the provisions of the Constitution
as they stand. The appellant's view that this
constitutional provision should now be construed as
providing for a person's right to refuse to become or
remain a member of an association cannot be sustained.
Neither can the inference be drawn from this constitutional
provision that a professional licence cannot lawfully be
made conditional upon the membership of an association."
34. A majority of four judges, however, reversed the judgment of the
lower instance finding that the matters referred to should be regulated
by law and not by a Regulation issued by the Minister of
Communications. In this respect the Supreme Court stated, inter alia:
(translation)
"... The (Act No. 36/1970 on Motor Vehicles for Public Hire)
does not provide for an obligation on the part of the licence
holder to be a member of a trade union, nor that only members of
automobile drivers' trade unions may be granted an operating
licence. ...
Thus, a provision in a Regulation to the effect that membership
of a trade union was a prerequisite for being granted an
operating licence, was unauthorised by law. Accordingly, a legal
basis for an obligation imposed on the appellant, against his
will, to be a member of the Frami Automobile Drivers'
Association, was lacking. Therefore depriving him of his
operating licence, as done when he ceased paying membership dues
and withdrew from the association, was unlawful.
...
Accordingly, the applicant's appeal shall be allowed and the
decision of the Committee for Taxicab Supervision, notified to
him on 30 June 1986 and confirmed by the Minister of
Communications on 17 July 1986, revoking his licence to operate
a taxicab in Reykjavik, shall be invalidated."
35. Three judges dissented, confirming as a whole the judgment of the
Civil Court.
36. Following this judgment the Minister of Communications presented
a new Bill to Parliament concerning vehicles for public hire. This was
passed as Act No. 77/1989 and took effect on 1 July 1989 (see below
under B). This Act expressly enumerates as a condition for being
granted an operating licence that an applicant shall be a member of the
relevant trade union of drivers of motor vehicles transporting persons,
or shall have applied for membership. The Act furthermore authorises
temporary revocation of operating licences if the holder of such a
licence violates the provisions of laws or regulations relating to
vehicles for public hire, and permanent revocation in cases of serious
or repeated violations. A new Regulation, No. 308/1989, has been
issued on the basis of the new Act (see below under B).
37. Following the entry into force of Act No. 77/1989 and Regulation
No. 308/1989 the applicant sent the following letter of 4 July 1989 to
Frami and the Minister of Communications:
(translation)
"With reference to the new legislation relating to vehicles
for public hire which took effect on 1 July, last, and the
concomitant Regulation on taxicab operation, I consider
myself obliged to be a member of the Frami Automobile
Drivers' Association, and therefore I accept that
membership fees be collected monthly with my station
charges at BSR.
I wish to state clearly that I am not a member of the Frami
Automobile Drivers' Association of my own free will, and
the fact remains unaltered that my interests are better
served outside the association than within it, since its
statute contains provisions which run counter to my
political opinions, and the association uses the membership
fees to work against my interests. I am anything but
content with the legislation referred to, in particular due
to the fact that the conclusion of the judgment of the
Supreme Court pronounced in my case against the Ministry of
Communications on 15 December 1988 states that Section 73
of the Constitution does not prevent the legislator from
obliging motor vehicle operators by legislation to remain
members of the same association. In my opinion the
legislation in question is incompatible with the Human
Rights Convention of the Council of Europe to which Iceland
is a party.
As I do not consider it necessary in a democratic society
to impose the obligation on all taxi drivers that they be
members of the same interest group, I shall lodge a
complaint relating to the legislation in question with the
Human Rights Commission and the European Court of Human
Rights."
38. The applicant did not challenge the new legislation in the
domestic courts.
B. Relevant Domestic Law
39. Sections 69 and 73 of the Icelandic Constitution reads as
follows:
"Engin bönd má leggja á atvinnufrelsi manna, nema almenningsheill
krefji, enda parf lagabod til."
"Rétt eiga menn á ad stofna félög í sérhverjum löglegum tilgangi,
án pess ad sækja purfi um leyfi til pess. Ekkert félag má leysa
upp med stjórnarrádstöfun. pó má banna félag um sinn, en pá
verdur pegar ad höfda mál gegn félaginu, til pess ad pad verdi
leyst upp."
(translation)
"No restriction may be imposed upon individual freedom of
employment, unless legislated for as being required by the common
good."
"Societies may be formed for any lawful purpose, without previous
authorisation. No society may be dissolved by act of Government,
but it may be temporarily suspended, in which case an action for
dissolution must immediately be brought."
40. The Act No. 77/1989 on Motor Vehicles for Public Hire now in
force reads as follows:
"I. KAFLI
Leiguakstur.
1.gr.
Lög pessi taka fólksbifreida, vörubifreida og sendibifreida sem
notadar eru til leiguaksturs. Fólksbifreidar, sem taka fleiri en
átta farpega, falla pó ekki undir lög pessi.
Leiguakstur fólksbifreida telst pad pegar fólksbifreid er seld
á leigu ásamt ökumanni fyrir tiltekid gjald til flutnings á
farpegum og farangri peirra.
Leiguakstur vörubifreida og sendibifreida telst pad pegar slík
bifreid er seld á leigu ásamt ökumanni til flutnings á vörum
fyrir tiltekid gjald par sem ökumadur eda eigandi bifreidarinn-
ar er hvorki eigandi, seljandi né kaupandi vörunnar sem flutt er.
Heimilt er med reglugerd ad kveda nánar á um mörkin milli
atvinnusvids fólksbifreida, vörubifreida og sendibifreida sem
notadar eru til leiguaksturs. Rísi ágreiningur um pessi mörk sker
samgönguráduneytid úr.
Leigubifreidar skulu audkenndar.
II. KAFLI
Bifreidastödvar.
2. gr.
Bæjarstjórn er heimilt, ad fengnum tillögum hlutadeigandi
stéttarfélags bifreidastjóra, ad ákveda ad allar leigubifreidar
í kaupstadnum í hverjum flokki fyrir sig, p.e. fólksbifreidar,
vörubifreidar og sendibifreidar, skuli hafa afgreidslu á
bifreidastöd sem fengid hefur vidurkenningu bæjarstjórnar.
Á félagssvædum, par sem vidurkenndar bifreidastödvar eru
starfandi, er öllum, sem aka utan pessara stödva, bannad ad taka
ad sér eda stunda leiguakstur á vidkomandi svidi.
3.gr.
Bifreidastödvar fyrir leigubifreidar skulu, í samrádi vid
stéttarfélög leigubifreidastjóra, skipuleggja starfsemi sína med
peim hætti ad almenningi verdi veitt gód og örugg pjónusta. Hver
bifreidastöd skal fylgjast med pví ad ökumenn, sem par hafa
afgreidslu, fari eftir fyrirmælum laga og reglugerda um
leigubifreidar.
III. KAFLI
Takmörkun.
4. gr.
Samgönguráduneytinu er heimilt eftir beidni hlutadeigandi
stéttarfélags bifreidastjóra, hvort heldur um er ad ræda félag
fólksbifreidastjóra, vörubifreidastjóra eda sendibifreidastjóra,
ad takmarka fjölda leigubifreida á félagssvædinu, enda komi til
medmæli peirra bæjarstjórna og héradsnefnda er félagssvædid
fellur undir. Verdi bæjarstjórnir og héradsnefndir, sem
félagssvædi stéttarfélags bifreidastjóra fellur undir, eigi
sammála um hvort mæla skuli med takmörkun eda ekki eda pær greini
á um vid hvada bifreidafjölda takmörkun skuli mida skal
samgönguráduneytid skera úr.
par sem takmörkun er heimilud skal hún ákvedin af ráduneytinu med
reglugerd. Takmörkun á fjölda vörubifreida og sendibifreida, sem
midast vid ákvedna hámarkstölu, framkvæma félögin sjálf.
Takmörkun á fjölda fólksbifreida, sem midast vid ákvedna
hámarkstölu eda vidmidun vid íbúafjölda, ber ad framkvæma med
útgáfu atvinnuleyfa sem umsjónarnefnd fólksbifreida annast.
5.gr.
Á félagssvædi, par sem takmörkun er í gildi, skulu
bifreidastjórar í sömu grein vera í sama stéttarfélagi.
Á peim félagssvædum stéttarfélaga vörubifreidastjóra og
sendibifreidastjóra, par sem takmörkun er í gildi, er öllum
utanfélagsmönnum bannad ad taka ad sér eda stunda leiguakstur á
vörum.
Á peim félagssvædum stéttarfélaga fólksbifreidastjóra, par sem
takmörkun er í gildi, er öllum, sem eigi hafa atvinnuleyfi,
bannad ad taka ad sér eda stunda leiguakstur á fólki.
6.gr.
pegar heimild til takmörkunar á fjölda leigubifreida er veitt er
óheimilt ad skerda atvinnuréttindi peirra manna sem á lögmætan
hátt stunda leigubifreidaakstur og eru fullgildir félagar í
hlutadeigandi stéttarfélagi pá er takmörkun hefst.
IV. KAFLI
Atvinnuleyfi.
7.gr.
Í pví skyni ad takmarka fjölda fólksbifreida til leiguaksturs á
peim félagssvædum, par sem samgönguráduneytid hefur veitt heimild
til takmörkunar, skal gefa út sérstök atvinnuleyfi. Grundvöllur
atvinnuleyfanna er ad sérhver leyfishafi eigi fólksbifreid og
hafi pad ad adalatvinnu ad aka henni sjálfur. Frá skilyrdum um
adalatvinnu má víkja á félagssvædum par sem íbúar eru færri en
5000. Fjöldi atvinnuleyfa á hverju félagssvædi midast vid pann
fjölda fólksbifreida sem takmörkunarreglugerd heimilar. Engum má
veita meira en eitt atvinnuleyfi.
Atvinnuleyfi er bundid vid nafn. Leyfishafa er óheimilt ad selja
atvinnuleyfi, leigja pad út eda rádstafa pví á annan hátt.
Atvinnuleyfishafi er hádur ákvædum laga og reglugerda um
leigubifreidar svo sem pau eru á hverjum tíma.
8.gr.
peir einir, sem fullnægja eftirtöldum skilyrdum, geta ödlast
atvinnuleyfi:
1. hafa fullnægjandi ökuréttindi samkvæmt umferdarlögum,
2. eru 20-65 ára ad aldri,
3. hafa eigi gerst sekir um alvarlegt refsilagabrot,
4. hafa fullnægjandi heilbrigdisvottord,
5. hafa starfsreynslu vid akstur á fólki,
6. eru félagsmenn í hlutadeigandi stéttarfélagi
fólksbifreidastjóra eda hafa sótt um inngöngu í pad.
pessum skilyrdum verdur atvinnuleyfishafi einnig ad fullnægja
eftir ad leyfi er fengid, sbr. pó 1. mgr. 9. gr.
Heimilt er ad halda námskeid fyrir umsækjendur um atvinnuleyfi
og má pá gera prófárangur ad skilyrdi fyrir pví ad leyfi verdi
veitt. Heimilt er ad taka sérstaklega tillit til umsókna um
atvinnuleyfi frá öryrkjum, enda uppfylli peir skilyrdi pessarar
greinar og ætla megi ad leiguakstur henti peim. Um heimild pessa
má ákveda nánar í reglugerd.
9.gr.
Atvinnuleyfi fellur úr gildi vid lok 70 ára aldurs leyfishafa.
Atvinnuleyfi fellur úr gildi vid andlát leyfishafa. pó má dánarbú
hans eda eftirlifandi maki nyta leyfid í allt ad prjú ár par á
eftir.
Heimilt er ad svipta leyfishafa atvinnuleyfi tímabundid ef hann
brytur gegn ákvædum laga og reglugerda um leigubifreidar, en
fyrir fullt og allt ef um alvarleg eda ítrekud brot er ad ræda.
Veita má leyfishafa tímabundnar undanpágur frá akstri eigin
bifreidar vegna:
a. orlofs, veikinda eda annarra forfalla,
b. vaktaskipta á álagstímum,
c. vidgerdar eda endurnyjunar á bifreid.
Stéttarfélag fólksbifreidastjóra annast pessar undanpáguveitingar
eftir nánari fyrirmælum í reglugerd.
Um atvinnuleyfi, úthlutun peirra, nytingu og brottfall skal setja
nánari ákvædi í reglugerd.
V. KAFLI
Umsjónarnefnd fólksbifreida.
10.gr.
Á öllum félagssvædum, par sem takmörkun fólksbifreida til
leiguaksturs hefur verid ákvedin, sbr. 4. gr., skal starfa
umsjónarnefnd fólksbifreida. Samgöngurádherra skipar
umsjónarnefndir fólksbifreida. Hver nefnd skal skipud premur
mönnum. Hlutadeigandi stéttarfélag fólksbifreidastjóra tilnefnir
einn nefndarmanna, annan tilnefnir sveitarfélag eda sveitarfélög
sameiginlega á félagssvædi og hinn pridja skipar rádherra án
tilnefningar og er hann formadur nefndarinnar. Sömu adilar velja
hver um sig einn varamann.
Umsjónarnefnd fólksbifreida hefur med höndum umsjón og eftirlit
med framkvæmd laga og reglugerda um leigubifreidar á
félagssvædinu, úthlutun atvinnuleyfa og afturköllun peirra, svo
og eftirlit med pjónustu fólksbifreidastödva. Ad ödru leyti
verdur starfssvid umsjónarnefnda ákvedid í reglugerd.
Samgöngurádherra ákvedur laun nefndarmanna. Laun peirra og annan
kostnad af störfum umsjónarnefnda greidir ríkissjódur.
VI. KAFLI
Ymis ákvædi.
...
13.gr.
Brot gegn lögum pessum og reglugerdum, sem settar verda samkvæmt
peim, varda sektum nema pyngri refsing liggi vid eftir ödrum
lögum og skal farid med mál út af brotum á lögum pessum ad hætti
opinberra mála.
14.gr.
Lög pessi ödlast gildi 1. júlí 1989. Jafnframt falla úr gildi lög
um leigubifreidar, nr. 36 1970, lög nr. 47/1988 og 66.gr. laga
nr. 108/1988, um breytingu á peim lögum.
prátt fyrir ákvædi 1. mgr. 5.gr. laga pessara er rádherra heimilt
ad veita undanpágu frá ákvædinu par sem önnur tilhögun hefur
tídkast.
Prátt fyrir ákvædi 5. lidar 8.gr. skulu launpegar í
leigubifreidastjórastétt hafa forgang vid veitingu atvinnuleyfa
næstu prjú ár frá gildistöku pessara laga, sbr. pó 3.mgr. 8.gr.
Prátt fyrir ákvædi 1.mgr. 9.gr. er heimilt ad veita peim, sem eru
66 ára eda eldri vid gildistöku pessara laga, heimild til ad
halda atvinnuleyfi í allt ad fimm ár til vidbótar enda uppfylli
peir ad ödru leyti skilyrdi pessara laga. Pó verdi ekki heimilt
ad framlengja atvinnuleyfi lengur en til 75 ára aldurs
leyfishafa.
Vid gildistöku laga pessara haldast vidurkenningar á
bifreidastödvum samkvæmt eldri lögum par til ödruvísi verdur
ákvedid af réttum adilum.
Peir, sem hafa atvinnuleyfi eda njóta takmörkunar vid gildistöku
laga pessara, eru hádir peim breytingum á réttarstödu sem lög
pessi hafa í för med sér."
(translation)
"CHAPTER I
Operation of Motor Vehicles for Public Hire
Section 1
This Act applies to automobiles for the transport of persons or
goods, and to delivery vans when operated for hire. Automobiles
for more than eight passengers are however excluded from the
scope of this Act.
For the purposes of this Act operation of a taxicab shall mean
letting out an automobile on lease, with its operator, for a
specified charge, for transport of passengers and their baggage.
Operation of lorries and delivery vans for hire shall mean
letting out automobiles of the said types on lease, with their
operators, for transport of goods for a specified charge, when
the operator or owner of the automobile is neither owner, seller
nor buyer of the goods transported.
The respective spheres of operation of taxicabs and of lorries
and delivery vans when operated for hire may be further
circumscribed by regulation. In cases of dispute relating to the
respective spheres of operation, the Ministry of Communications
shall decide.
Motor vehicles for public hire shall be marked as such.
CHAPTER II
Taxi Stations
Section 2
A town's municipal council may, acting on a proposal from the
trade union of automobile drivers in question, decide that all
motor vehicles for public hire within the municipality shall
have, for each category of vehicles separately, a facility for
serving customers at a station approved by the municipal council.
In the area of a trade union, where an approved taxi station is
functioning, operation of motor vehicles for public hire by
persons not operating from such stations is prohibited.
Section 3
Taxi stations shall, in consultation with trade unions of
automobile conductors, organise their operation so as to offer
good and reliable service to the public. Each station shall
observe that drivers operating from that station obey the
provisions of laws and regulations relating to motor vehicles for
public hire.
CHAPTER III
Limitation
Section 4
On the request of the relevant trade union of automobile drivers,
whether a union of taxicab, lorry or delivery van drivers, and
on recommendation of the town councils and regional boards in the
area of the union, the Ministry of Communications may limit the
number of motor vehicles for public hire operating there. In case
the town councils or regional boards disagree on whether or not
to recommend such limitation, or to what number of motor vehicles
the limitation should apply, the Ministry of Communications shall
decide.
Where a limitation is approved the Ministry shall impose it by
regulation. The unions themselves shall implement the limitation
of the number of lorries and delivery vans. A limitation of the
number of passenger vehicles, either to a fixed maximum or as
based on the number of inhabitants, shall be implemented by the
issuing of operating licences by a committee for the supervision
of taxicab operation.
Section 5
In the area of a trade union to which a limitation applies,
vehicle operators operating vehicles of the same category shall
be members of the same trade union.
In an area of a trade union of lorry or delivery van operators
to which a limitation applies, lorry or delivery van operation
for hire is prohibited for non-members.
In an area of a trade union of taxicab operators to which a
limitation applies, taxicab operation is prohibited for persons
not possessing an operating licence.
Section 6
When a limitation of the number of motor vehicles for hire is
authorised the rights of persons to pursue their occupation, who
are lawfully operating motor vehicles for hire as valid members
of the relevant trade union at the time at which the limitation
is imposed, shall not be infringed.
CHAPTER IV
Operating Licences
Section 7
In order to limit the number of taxicabs in areas where the
Ministry of Communications has authorised such limitation,
operating licences shall be issued. They shall be issued on the
premise that each licence holder owns a passenger automobile and
operates it himself as his chief occupation. The requirement of
chief occupation may be waived in union areas where the number
of inhabitants does not reach 5000. The number of operating
licences in each union area shall depend on the number of
taxicabs permitted by the limitation regulation. No person may
be granted more than one operating licence.
An operating licence shall be issued to the licence holder's
name. A licence holder may not sell his licence, lease it, or
otherwise dispose of it. The holder of an operating licence shall
be subject to the provisions of laws and regulations in force at
any particular time.
Section 8
Operating licences shall only be granted to persons who:
1. Possess requisite qualifications according to the Traffic
Act;
2. Are 20 - 65 years of age;
3. Have not been found guilty of serious violation of penal
law;
4. Possess a medical certificate evidencing sufficient health;
5. Have experience in transporting persons by automobile;
6. Are members of the relevant trade union or have applied for
membership thereof.
Subject to Section 9, subsection 1, the above conditions shall
also be fulfilled by a licence holder after an operating licence
has been granted.
A training course for persons applying for operating licences may
be held, and the issue of a licence may be made conditional upon
examination performance. Applications from disabled persons may
be given precedence, provided they fulfil the conditions set by
this Section and operation of motor vehicles for public hire is
deemed to suit them. A regulation may provide for further details
in this respect.
Section 9
An operating licence shall terminate at the end of the licence
holder's 70th year of age.
An operating licence shall terminate when the licence holder
dies. However, his estate or his surviving spouse may make use
of the licence for the next three years following his death.
An operating licence may be suspended if the licence holder
violates the provisions of laws or regulations relating to motor
vehicles for public hire, or permanently revoked in cases of
serious or repeated violation.
The requirement that a licence holder personally operate his own
automobile may be temporarily waived by reason of the following:
a. vacation, or illness or other inability;
b. shift changes during periods of high demand;
c. vehicle repair or renewal.
The relevant trade union of taxicab operators shall grant such
exemptions as further provided by regulation.
Further details concerning issue, use and termination of
operating licences shall be prescribed by regulation.
CHAPTER V
Committee for Taxicab Supervision
Section 10
In each area for which a decision has been made to limit the
number of taxicabs there shall be established a Committee for
Taxicab Supervision. Committees for taxicab supervision shall be
appointed by the Minister of Communications. Each committee shall
be composed of three members. One member shall be nominated by
the relevant union of taxicab drivers, another member shall be
nominated by the municipality of the union area, or by the
municipalities of that area collectively, and the third member
shall be appointed by the Minister without nomination, also to
serve as chairman. Each of the same parties shall choose one
substitute.
A committee of taxicab supervision shall supervise and control
the implementation of laws and regulations relating to motor
vehicles for public hire in the union area, the allocation of
operating licences and their revocation, and control the services
rendered by taxi stations. In other respects the functions of
supervision committees will be determined by regulation.
The Minister of Communications determines the salaries of
committee members. Their salaries, as well as other costs arising
from the functions of supervision committees, shall be paid by
the State Treasury.
CHAPTER VI
Miscellaneous Provisions
...
Section 13
Whoever violates this Act or regulations issued in accordance
with it shall be fined, if heavier penalties are not prescribed
by other Acts, and cases arising from violation of this Act are
subject to procedure in criminal cases.
Section 14
This Act enters into force on 1 July 1989. At the same time Act
no. 36/1 in respect of Motor Vehicles for Public Hire, as well
as Act no. 47/1988 and Section 66 of Act no. 108/1988 amending
that Act, are repealed.
Notwithstanding the provision of Section 5, subsection 1, the
Minister may grant a derogation with respect to areas where a
different arrangement has been practised.
Notwithstanding the provision of item 5 of Section 8, persons
employed as conductors of motor vehicles for public hire shall,
subject to Section 8, subsection 3, have priority when operating
licences are issued, for three years after the entry into force
of this Act.
Notwithstanding the provision of Section 9, subsection 1, persons
who are 66 years of age or older when this Act enters into force
may be permitted to retain their operating licences for five
years, provided they fulfil the requirements of this Act in other
respects. However, extension of the validity of an operating
licence beyond the licence holder's 75th year of age shall not
be allowed.
When this Act enters into force approval of taxi stations
approved in accordance with older Acts shall remain unaffected
until a different decision is made by the competent parties.
Persons holding operating licences or benefiting from limitation
when this Act enters into force are subject to the changes in
legal status caused by this Act."
41. Regulation No. 308/1989 now in force concerning taxicabs and the
limitation of their numbers reads as follows:
"I. KAFLI
Gildissvid
1.gr.
Reglugerd pessi er sett samkvæmt lögum nr. 77/1989 um
leigubifreidar og gildir um fólksbifreidar, sem notadar eru til
leiguaksturs og mega flytja allt ad átta farpega.
2.gr.
Leiguakstur telst pad pegar fólksbifreid er seld á leigu ásamt
ökumanni fyrir tiltekid gjald til flutnings á farpegum og
farangri peirra. Farangur skal flytja í farangursgeymslu
bifreidar, en pó má setja ferdatöskur inn í bifreidina, ef
farpegi krefst pess. Eigi er heimilt ad flytja farangur án
farpega nema í undantekningartilfellum, enda sé um ad ræda
flutning bréfa, skjala eda annarra sérstakra verdmæta. (This
Section has subsequently been amended. The amended text appears
in the translation below).
II. KAFLI
Audkenni.
3.gr
Leigubifreid til fólksflutninga skal audkennd med pakljósi
samkvæmt ákvædum reglugerdar um gerd og búnad bifreida. Ennfremur
skal fólksbifreid, sem ekur frá bifreidastöd, audkennd med merki
stödvarinnnar.
III. KAFLI
Gjaldmælar.
4.gr.
Gjaldmælar í fólksbifreidum skulu syna rétt ökugjald samkvæmt
almennum taxta og sértöxtum. Nú er gjaldmælir eigi pannig búinn
ad hann syni glöggt hina heimiludu sértaxta og skulu
bifreidastjórar pá nota verdskrá, sem farpegar geta kynnt sér.
Gjaldmælir skal pannig stadsettur í bifreid, ad farpegar sjái
glöggt upphæd ökugjalds á gjaldskífu mælisins.
Samgönguráduneytid ákvedur hvada tegundir gjaldmæla skuli nota.
5.gr.
Heimilt er ad aka án gjaldmælis:
1. Pegar sérstaklega stendur á og lögreglustjóri veitir
undanpágu.
2. Pegar fyrirfram er samid um akstursgjald fyrir tiltekna
ferd.
3. Pegar mælir bilar í ökuferd.
6. gr.
Óheimilt er ad taka gjaldmæli í notkun í bifreid fyrr en
löggilding á mælinum hefur farid fram.
Löggildingarmenn, skipadir af samgönguráduneytinu, annast
löggildingu gjaldmæla og gefa út vottord par ad lútandi. Peir
hafa med höndum vidgerdir, breytingar og innsiglun gjaldmæla.
Ennfremur framkvæma peir almenna skodun á gjaldmælum svo oft sem
purfa pykir ad mati lögreglustjóra, pó eigi sjaldnar en einu
sinni á ári.
Samgönguráduneytid ákvedur gjald fyrir störf löggildingarmanna,
sem bifreidaeigendur greida.
Endurskoda skal löggildingu gjaldmælis, ef skipt er um drif á
bifreid eda breyting gerd á hjóla- eda hjólbardastærd hennar.
7.gr.
Verdi breytingar á ökugjaldi bifreida skal stilla pær breytingar
inn á gjaldmæla innan fjögurra vikna. Eftir pann tíma er notkun
óbreyttra gjaldmæla óheimil. Á bidtímanum skal nota verdskrá.
IV. KAFLI
Takmarkanir á fjölda bifreida.
8.gr.
Félagssvædi og hámarkstala.
Takmarkanir á fjölda fólksbifreida gilda á eftirtöldum svædum;
1. Á félagssvædi Bifreidastjórafélagsins Frama, sem er
Reykjavík, Kópavogur, Hafnarfjördur, Gardabær,
Seltjarnarnes, Mosfellsbær og Bessastadahreppur.
Hámarkstala er 570 fólksbifreidar.
2. Á félagssvædi Bifreidastjórafélaganna Fylkis og Freys, sem
er Keflavík, Njardvík, Hafna-, Midnes-, Gerda- og
Vatnsleysustrandarhreppur. Hámarkstala er 40
fólksbifreidar.
3. Á félagssvædi Bílstjórafélags Akureyrar, sem er Akureyri.
Hámarkstala er 27 fólksbifreidar.
4. Á félagssvædi Bifreidastjórafélagsins Orku, sem er
Ísafjördur. Hámarkstala er 9 fólksbifreidar.
5. Á félagssvædi Bifreidastjórafélagsins Faxa, sem er Selfoss.
Hámarkstala er 7 fólksbifreidar.
Takmörkun er framkvæmd med útgáfu atvinnuleyfa svo sem
hámarkstala segir til um.
Nú eru fleiri atvinnuleyfi í gildi en hámarkstalan segir til um
vid gildistöku pessarar reglugerdar og skal pá á næstu árum
einungis úthluta ödru hverju leyfi, sem úr gildi fellur, uns
réttri tölu er nád.
9.gr.
Umsjónarnefnd fólksbifreida.
Á hverju félagssvædi stéttarfélags fólksbifreidastjóra, par sem
takmörkun er heimilud, starfar umsjónarnefnd fólksbifreida. Hver
nefnd er skipud premur mönnum. Ákvardanir umsjónarnefndar eru
gildar hafi pær hlotid a.m.k. tvö atkvædi á nefndarfundi.
Á nefndarfundum skal halda gerdabók par sem ákvardanir og
sampykktir skulu skilmerkilega færdar til bókar. Allir
nefndarmenn undirrita fundargerd.
Umsjónarnefnd gefur samgönguráduneytinu árlega skriflega skyrslu
um störf sín. Ráduneytid getur pó hvenær sem er krafist
greinargerdar frá umsjónarnefnd um tiltekid málefni.
Umsjónarnefnd setur sér starfsreglur sem taka gildi pegar
ráduneytid stadfestir pær.
Umsjónarnefnd er heimilt ad ráda trúnadarlækni.
10.gr.
Umsóknir.
Umsjónarnefndir, hver á sínu svædi, gefa út atvinnuleyfi til
leiguaksturs fólksbifreida og annast úthlutun peirra. Úthlutun
skal fara fram pegar hennar er pörf, pó eigi sjaldnar en einu
sinni á hverju almanaksári. Auglyst skal eftir umsækjendum med
a.m.k. priggja vikna fyrirvara.
Bifreidastjóri, sem óskar eftir atvinnuleyfi, skal sækja um pad
á sérstöku eydubladi, sem umsjónarnefnd lætur gera. Umsókninni
skulu fylgja öll pau gögn og vottord, sem umsjónarnefnd gerir
kröfu til, par med talid vottord um ad umsækjandi eigi kost á
afgreidslu á bifreidastöd.
11.gr.
Námskeid.
Umsjónarnefnd fólksbifreida er heimilt pegar hún telur pörf á,
pó eigi fyrr en eftir 1. júlí 1992, ad stofna til námskeids fyrir
umsækjendur um atvinnuleyfi, sem fullnægja skilyrdum laga um
leigubifreidar. Umsjónarnefnd skipuleggur slík námsskeid, ákvedur
kennslutilhögun, námsefni, prófreglur og námskeidsgjald.
Undanpágu frá námsskeidi má veita peim umsækjendum, er ádur hafa
stundad leiguakstur sem atvinnuleyfishafar.
12.gr.
Úthlutunarreglur.
Atvinnuleyfum skal einungis úthlutad til peirra, sem fullnægja
skilyrdum 1.-6. tl. 8.gr. laga um leigubifreidar. Á tímabilinu
frá 1. júlí 1989 til 1. júlí 1992 skulu launpegar í
leigubifreidastjórastétt hafa forgang til atvinnuleyfa, en pó má
jafnframt taka sérstakt tillit til umsókna um atvinnuleyfi frá
peim öryrkjum, sem leiguakstur hentar vel enda hafi peir medmæli
Öryrkjabandalags Íslands og tryggingayfirlæknis.
Pegar atvinnuleyfi eru veitt ad undangengnu námskeidi skal
prófárangur ad jafnadi ráda veitingu atvinnuleyfa til umsækjenda.
Pegar atvinnuleyfum er úthlutad án undanfarandi námskeids og
tímabundnar reglur 1. mgr. eiga ekki lengur vid metur
umsjónarnefnd pad af réttsyni hverjir umsækjenda eru hæfastir til
ad hljóta atvinnuleyfi og lætur pá ad jafnadi sitja fyrir, sem
hafa ödlast fjögurra ára starfsreynslu vid akstur á fólki. Pess
utan er nefndinni heimilt ad taka sérstakt tillit til umsókna frá
öryrkjum, sbr. 1.mgr.
Umsjónarnefnd er heimilt ad höfdu samrádi vid hagsmunafélög
fatladra og vidkomandi stéttarfélag ad úthluta atvinnuleyfum til
reksturs á sérbúnum bifreidum til flutnings á hreyfihömludum.
Umsjónarnefnd er heimilt ad setja reglur um notkun edalvagna
(limousine), sem ætladir eru til sérstakrar pjónustu.
13.gr.
Varsla og endurútgáfa atvinnuleyfa.
Atvinnuleyfin skulu tölusett og geymd í vörslu stéttarfélags
leyfishafa. Leyfishafi fær í hendur stadfest eftirrit af
atvinnuleyfi sínu.
Umsjónarnefnd er heimilt ad endurútgefa atvinnuleyfi pau, sem eru
í gildi vid gildistöku laga um leigubifreidar nr. 77/1989, til
samræmis vid efni laganna og ákvædi pessarar reglugerdar.
14.gr.
Eigin bifreid.
Vid leiguaksturinn ber leyfishafa ad nota bifreid, sem sampykkt
er af stéttarfélagi hans og hann er skrádur eigandi ad eda hefur
umrád yfir samkvæmt kaupleigusamningi vid eignarleigufyrirtæki
samkvæmt lögum um eignarleigustarfsemi.
15.gr.
Nyting atvinnuleyfis.
Leyfishafi skal nyta atvinnuleyfi sitt med edlilegum hætti og
stunda aksturinn sem adalatvinnu. Akstur eigin leigubifreidar
telst adalatvinna leyfishafa pegar hann ad jafnadi stundar
aksturinn eigi færri en 30 klst. á viku hverri. Frá pessu má pó
víkja á félagssvædum med færri en 5000 íbúa á peim tíma árs pegar
lítil pörf er fyrir leigubifreidapjónustu.
Bifreidastjóra, sem ödlast atvinnuleyfi, ber ad hefja nytingu
pess innan sex mánada frá útgáfudegi leyfisins. Ad ödrum kosti
fellur atvinnuleyfid úr gildi.
Leyfishafi, sem nytir ekki atvinnuleyfi sitt í sex mánudi eda
lengur án pess ad lögmætar ástædur séu fyrir hendi, skal sviptur
pví fyrir fullt og allt, ef hann lætur ekki skipast vid
áminningu.
Umsjónarnefnd getur heimilad leyfishafa ad láta atvinnuleyfid
ónotad í allt ad tvö ár samtals, ef sérstakar ástædur eru fyrir
hendi.
Óski forseti Íslands eda rádherra ad ráda leyfishafa sem
einkabílstjóra á medan peir gegna embætti, er peim leyfishöfum
heimilt ad leggja atvinnuleyfid inn á medan starfinu stendur.
16.gr.
Undanpágur.
Heimilt er ad veita leyfishafa tímabundnar undanpágur frá akstri
eigin bifreidar vegna:
a. veikinda eda annarra forfalla
b. orlofs.
c. vaktaskipta á álagstímum.
d. vidgerdar eda endurnyjunar á bifreid.
Stéttarfélag fólksbifreidastjóra setur reglur um pessar
undanpáguveitingar og annast framkvæmd peirra. Undanpágu skal ad
jafnadi veita, nema sérstakar ástædur mæli henni í gegn.
Undanpágu má binda skilyrdum. Undanpága vegna veikinda verdur pó
ekki veitt fyrstu fjóra daga hvers veikindatímabils.
Stéttarfélagid má ekki veita lengri undanpágu samkvæmt a lid en
prjá mánudi samtals á hverju almanaksári.
Óski leyfishafi eftir lengri undanpágu fjallar umsjónarnefnd um
mál hans og getur hún veitt allt ad tólf mánada undanpágu til
vidbótar. Umsjónarnefnd er pó heimilt ad veita allt ad tólf
mánada undanpágu par ad auki vegna alvarlegra og langvarandi
veikinda leyfishafa.
Pegar leyfishafi setur annan mann á bifreid sína, sbr. lidi
a - c, skal ökumadurinn fullnægja skilyrdum laga um
leigubifreidar til pess ad ödlast atvinnuleyfi.
17.gr.
Eftirlifandi maki og dánarbú.
Pegar leyfishafi fellur frá skal umsjónarnefnd ad undangenginni
umsókn veita dánarbúi hans eda eftirlifandi maka heimild til ad
nyta atvinnuleyfid í allt ad prjú ár frá dánardægri, pó eigi
lengur en til pess tíma er leyfishafi hefdi misst pad fyrir
aldurs sakir, ef hann hefdi lifad. Eftirlifandi sambylismadur eda
sambyliskona skodast sem eftirlifandi maki hafi sambúdin stadid
yfir í ad minnsta kosti tvö ár samfleytt samkvæmt pjódskrá.
Dánarbúi er óheimilt ad nyta atvinnuleyfi eftir ad skiptum á
búinu er lokid.
Pegar eftirlifandi maki eda dánarbú setur ökumann á bifreidina
skal hann fullnægja skilyrdum laga um leigubifreidar til pess ad
ödlast atvinnuleyfi.
18.gr.
Svipting atvinnuleyfis.
Ef leyfishafi fullnægir eigi lengur skilyrdum laga um
leigubifreidar nr. 77/1989 til pess ad halda atvinnuleyfi sínu
eda brytur á annan hátt gegn ákvædum laganna eda pessarar
reglugerdar er umsjónarnefnd rétt ad beita hann vidurlögum.
Vidurlögin fara eftir edli brotsins og á hvern hátt pau tengjast
nytingu atvinnuleyfisins.
Vidurlögin eru pessi:
1. Áminning.
2. Tímabundin svipting atvinnuleyfis.
3. Endanleg svipting atvinnuleyfis.
Prátt fyrir endanlega sviptingu atvinnuleyfis getur
bifreidastjórinn sótt um atvinnuleyfi ad nyju ad fimm árum
lidnum, enda hafi hann pa bætt rád sitt og tekid út refsingu
fyrir brotid, ef svo ber undir.
Nú er bifreidastjóri sviptur atvinnuleyfi sínu samkvæmt
framangreindu og er pá fólksbifreidastödvum á félagssvædinu
óheimilt ad veita honum afgreidslu á medan sviptingin varir.
19.gr.
Brottfall atvinnuleyfis.
Frá og med 1. júlí 1994 fellur atvinnuleyfi úr gildi vid lok 70
ára aldurs leyfishafa, p.e. daginn ádur en hann nær 71 árs aldri.
Á tímabilinu frá gildistöku laga um leigubifreidar hinn 1. júlí
1989 til 30. júní 1994 gilda eftirfarandi reglur um brottfall
atvinnuleyfis sökum aldurs:
1. Sá, sem er 66 ára ad aldri vid gildistöku laganna, missir
leyfid pegar hann verdur 71 árs.
2. Sá, sem er 67 ára ad aldri vid gildistöku laganna, missir
leyfid pegar hann verdur 72 ára.
3. Sá, sem er 68 ára ad aldri vid gildistöku laganna, missir
leyfid pegar hann verdur 73 ára.
4. Sá, sem er 69 ára ad aldri vid gildistöku laganna, missir
leyfid pegar hann verdur 74 ára.
5. Peir, sem eru 70-74 ára ad aldri vid gildistöku laganna,
missa leyfin pegar peir verda 75 ára.
6. Peir, sem eru 75 ára eda eldri vid gildistöku laganna og
hafa haldid atvinnuleyfum sínum, missa leyfin pegar í stad.
20.gr.
Bifreidastödvar.
Leyfishafa er heimilt ad hafa bifreid sína í afgreidslu hjá hvada
vidurkenndri fólksbifreidastöd sem er á félagssvædinu, par sem
hann á kost á afgreidslu.
Vilji leyfishafi flytja sig á adra stöd skal hann segja upp
stödvarleyfi sínu med eins mánadar fyrirvara.
Bifreidastöd er óheimilt ad taka bifreid í afgreidslu fyrr en
tilkynning um útgáfu atvinnuleyfis eda flutning á milli stödva
hefur borist frá vidkomandi stéttarfélagi.
Bifreidastöd skal fylgjast med pví ad ökumenn á stödinni nyti
atvinnuleyfi sín og tilkynna stéttarfélaginu, ef út af ber í peim
efnum. Ennfremur tilkynnir bifreidastöd pad til stéttarfélagsins,
ef leyfishafi á stödinni brytur stödvarreglur og sætir vidurlögum
af peim sökum.
Umsjónarnefnd er heimilt ad setja reglur um pjónustu
bifreidastödva.
V. KAFLI
Ymis ákvædi.
21. gr.
Undanpágur frá almennum reglum um akstur eigin bifreidar og
nytingu atvinnuleyfis, sem veittar hafa verid samkvæmt eldri
reglugerdum og standa yfir pegar reglugerd pessi ödlast gildi,
getur umsjónarnefnd framlengt fyrst um sinn.
22.gr.
Brot gegn reglugerd pessari varda sektum samkvæmt 13.gr. laga nr.
77/1989 um leigubifreidar.
23.gr.
Reglugerd pessi, sem ödlast gildi 1. júlí 1989, stadfestist hér
med til eftirbreytni öllum peim sem hlut eiga ad máli. Jafnframt
fellur úr gildi reglugerd um notkun gjaldmæla í leigubifreidum
nr. 136/1986 og auglysing um sama efni nr. 237/1988. Auk pess
falla eftirtaldar reglugerdir úr gildi, sem gilt hafa um
takmörkun leigubifreida til fólksflutninga á einstökum
félagssvædum; nr. 293/1985 og 206/1987 (Reykjavík); nr. 89/1962
and 374/1978 (Akranes); nr. 39/1966 og 3/1984 (Ísafjördur); nr.
207/1978 (Saudárkrókur); nr. 332/1988 (Akureyri); nr. 145/1963
(Seydisfjördur); nr. 279/1972 (Neskaupstadur); nr. 81/1967 og
19/1984 (Selfoss); nr. 23/1986 og 487/1986 (Hveragerdi); nr.
810/1983 (Vestmannaeyjar); nr. 423/1974 og 2/1984 (Grindavík),
nr. 356/1985 og 200/1987 (Keflavík)."
(translation)
"CHAPTER I
Application
Section 1
This Regulation is issued in accordance with Act no. 77/1989 on
Motor Vehicles for Public Hire, and applies to taxicabs
transporting up to eight passengers.
Section 2
For the purposes of this Regulation operation of a taxicab shall
mean letting out an automobile on lease, with its operator, for
a specified charge, for transport of passengers and their
baggage. Baggage shall be transported in the baggage compartment
of the automobile; however, suitcases may be transported inside
the main compartment, if a passenger so requests. Transport of
baggage without passengers is not allowed, except that letters,
documents, flowers or emergency supplies for hospitals may be
transported in exceptional cases. The respective functions of
delivery van and taxicab operators shall be determined in further
detail by mutual agreement between their respective associations,
to be ratified by the Ministry of Communications.
CHAPTER II
Markings
Section 3
Taxicabs shall be distinguished by a top light in accordance with
the Regulation in respect of Design and Equipment of Automobiles.
In addition, a taxicab operating from a taxi station shall be
marked with the emblem of the station.
CHAPTER III
Taximeters
Section 4
Taximeters for use in taxicabs shall display the correct charge
according to the general rate and special rates. If a taximeter
is not equipped to display clearly the special rates authorised
the operator shall use a rate sheet, available for inspection by
passengers.
A taxicab's taximeter shall be positioned so as to show the
passengers clearly the amount of charge on its display.
The Ministry of Communications shall decide what types of
taximeter shall be used.
Section 5
A taxicab may be operated without a taximeter:
1. In special cases, in accordance with a derogation granted
by the commissioner of police;
2. When an agreement on the charge for a particular trip has
been reached in advance;
3. When a taximeter has malfunctioned while on the road.
Section 6
Taximeters may only be taken into use after being certified.
Certification, and the issue of certificates, shall be performed
by inspectors appointed by the Ministry of Communications. They
shall perform repairs, modifications and sealing of taximeters.
They shall also perform general inspection of taximeters as often
as the commissioner of police considers it necessary, but at
least once a year.
The Ministry of Communications shall determine a charge for the
functions performed by the inspectors, to be paid by taxicab
owners.
Taximeters shall be certified again if the drive of the taxicab
is replaced, or changes made to wheel or tire sizes.
Section 7
If charges for taxicab services are changed, changes shall be
made to taximeter settings within four weeks. After that period,
the use of unchanged taximeters is prohibited. In the meantime
a rate sheet shall be used.
CHAPTER IV
Limitation of the Number of Taxicabs
Section 8
Association Areas and Maximum Numbers
Limitation to the numbers of taxicabs shall apply in the
following areas:
1. In the area of the Frami Automobile Drivers' Association,
which is Reykjavík, Kópavogur, Hafnarfjördur, Gardabær,
Seltjarnarnes, Mosfellsbær and Bessastadahreppur. The
maximum number shall be 570 taxicabs.
2. In the area of the Fylkir and Freyr Automobile Drivers'
Association, which is Keflavík, Njardvík, Hafnahreppur,
Midneshreppur, Gerdahreppur and Vatnsleysustrandarhreppur.
The maximum number shall be 40 taxicabs.
3. In the area of the Akureyri Automobile Drivers'
Association, which is Akureyri. The maximum number shall be
27 taxicabs.
4. In the area of the Orka Automobile Drivers' Association,
which is Ísafjördur. The maximum number shall be 9
taxicabs.
5. In the area of the Faxi Automobile Drivers' Association,
which is Selfoss. The maximum number shall be 7 taxicabs.
The limitation, up to the maximum number, shall be effected by
the issuing of operating licences.
In case the number of operating licences in effect at the time
this regulation enters into force is higher than the maximum
number, only every second operating licence which becomes void
shall be reallocated during the following years, until the
correct number is reached.
Section 9
Committees for Taxicab Supervision
In each area of a taxicab drivers' union where a limitation is
authorised a committee for taxicab supervision shall be
established. Each committee shall be composed of three members.
A supervision committee's decisions are valid if taken by a
majority of two votes.
At committee meetings minutes shall be recorded in a book, and
decisions and resolutions carefully entered. All committee
members shall sign the minutes.
Each committee for taxicab supervision shall submit a report on
its activities to the Ministry of Communications annually. The
Ministry may, however, request reports on particular matters from
a supervision committee at any time.
Each supervision committee shall adopt its own rules of
procedure, which become effective when ratified by the Ministry.
Section 10
Applications
Supervision committees, each within its area, shall issue and
allocate licences for the operation of taxicabs. Allocation shall
take place when necessary, but at least once each calendar year.
Applications shall be invited by announcement at least four weeks
in advance.
An automobile driver who requests an operating licence shall
apply for it on a form which the supervision committee shall have
prepared. An application shall be accompanied by all documents
and certificates requested by the supervision committee,
including a certificate to the effect that the services of a taxi
station are available to the applicant.
Section 11
Training Courses
A committee of taxicab supervision may, when deemed necessary by
the committee, however not until after 1 July 1992, initiate
training courses for applicants for operating licences, who
fulfil the requirements of the Act on Motor Vehicles for Public
Hire. The committee shall organise such courses and decide how
instruction shall take place, what material shall be studied, the
examination procedures to apply, and the charge to be paid. The
training course requirement may be waived with respect to those
who have previously operated taxicabs as holders of operating
licences.
Section 12
Allocation Procedures
Operating licences shall only be allocated to persons who fulfil
the requirements of items 1-6 of Section 8 of the Act on Motor
Vehicles for Public Hire. During the period 1 July 1989 to
1 July 1992 employees working as taxicab drivers shall have
priority as regards the allocation of operating licences;
however, simultaneously special regard may be had to applications
from disabled persons for whom taxicab operation is suitable,
provided they possess the recommendations of the Iceland
Federation of the Handicapped and the Chief Medical Officer of
the State Social Security Institution.
When operating licences are granted following a training course,
allocation of licences to applicants shall generally take place
in accordance with examination performance.
When operating licences are allocated without a training course
having been offered and the temporary provision of subsection 1
no longer applies the supervision committee shall evaluate in
fairness which of the applicants are best suited to receive an
operating licence, generally giving precedence to those who have
acquired four years of experience in transporting passengers. The
committee may at the same time take special account of
applications from disabled persons, cf. subsection 1.
Following consultation with associations for the protection of
the interests of disabled persons and the trade union in question
a supervision committee may allocate licences for operation of
specially equipped automobiles for the transport of persons of
impaired mobility.
A supervision committee may issue rules relating to the use of
limousines intended for special duties.
Section 13
Keeping and Reissue of Operating Licences
Operating licences shall be numbered and deposited with the
licence holder's trade union. The licence holder shall receive
a certified copy of his licence.
A supervision committee may reissue operating licences effective
when Act no. 77/1989 on Motor Vehicles for Public Hire enters
into force, so that they conform to the provisions of the Act and
the provisions of this Regulation.
Section 14
Ownership of Taxicabs
For taxicab operation a licence holder shall use an automobile
approved by his trade union and of which he is the registered
owner, or which he possesses under a lease purchase agreement
concluded with a leasing company in accordance with the Act in
respect of Leasing.
Section 15
Use of Operating Licences
Licence holders shall use their operating licences in a proper
manner and operate their taxicabs as chief occupation. The
operation of a taxicab owned by a licence holder shall be deemed
chief occupation if he operates his taxicab for an average of at
least 30 hours each week. This may, however, be diverged from in
union areas with fewer than 5000 inhabitants during seasons when
there is little demand for taxicab services.
An operator to whom an operating licence is granted shall make
use of his licence within six months from the date of issue.
Failing this, the licence shall lose its effect.
A licence holder who does not make use of his licence for six
months or longer without valid reasons shall be permanently
deprived of his licence if he does not heed an admonition given
him.
In case the President of Iceland or a Minister of the Government
wishes to engage a licence holder as private chauffeur while in
office, the licence holder in question may deposit his operating
licence while the engagement lasts.
Section 16
Exemptions
The requirement that a licence holder operate his own taxicab may
be temporarily waived by reason of:
a. sickness or other inability;
b. vacation;
c. shift changes during periods of high demand;
d. repairs or renewal of the taxicab.
The trade union of taxicab drivers shall issue rules relating to
such exemptions, and implement them. Exemptions shall generally
be granted, if there are no special reasons to the contrary.
Exemptions may be made conditional. Exemptions by reason of
sickness shall, however, not be granted during the first four
days of each sickness period. The trade union may not grant
exemptions according to a. for more than a total of three months
during each calendar year.
If a licence holder requests exemption for a longer period the
supervision committee shall discuss his case, and may grant him
an exemption for up to twelve months in addition. The committee
may, however, grant yet another extension for twelve months by
reason of illness which is serious or of long duration.
When a licence holder engages another person to operate his
automobile, as under a. to c. above, that person shall be
eligible for an operating licence in accordance with the
requirements made by the Act on Motor Vehicles for Public Hire.
Section 17
Surviving Spouse and Estate
When a licence holder dies the supervision committee shall, on
application, permit his estate or his surviving spouse to make
use of the operating licence for up to three years as from the
day of his death, however not longer than until the time when the
licence would have terminated by reason of the licence holder's
age, had he lived. A cohabiting man or woman shall be regarded
as surviving spouse in this respect, if cohabitation had lasted
at least two years according to the files of the national
registry.
An estate may not make use of an operating licence after
distribution has been completed.
When a surviving spouse or an estate engages a person to operate
the taxicab that person shall be eligible for an operating
licence in accordance with the requirements made by the Act on
Motor Vehicles for Public Hire.
Section 18
Deprivation of Operating Licence
If a licensee no longer fulfils the requirements of Act no.
77/1989 on Motor Vehicles for Public Hire for retaining his
operating licence, or if he otherwise violates the provisions of
that Act or those of this Regulation, the supervision committee
may apply sanctions. The sanctions shall be dependent on the
nature of the violation, and the way in which they relate to the
use of the operating licence.
Such sanctions shall be:
1. Admonition
2. Suspension of operating licence
3. Deprivation of operating licence.
Even if a person has been deprived of an operating licence he may
apply for such licence again after five years have passed,
provided he has mended his ways and served his sentence, if
applicable.
If a taxicab operator is deprived of his operating licence
according to the above, taxicab stations in the union area
concerned may not render him station service.
Section 19
Termination of Operating Licence
As from 1 July 1984 operating licences shall terminate at the end
of the licence holder's 70th year of age, i.e. on the day before
he reaches the age of 71 years.
During the period from 1 July 1989, when the Act on Motor
Vehicles for Public Hire enters into force, to 30 June 1994, the
following rules shall apply to the termination of an operating
licence by reason of age:
1. The licence of a person who is 66 years of age when the Act
takes effect terminates when he reaches his 71st year.
2. The licence of a person who is 67 years of age when the Act
takes effect terminates when he reaches his 72nd year.
3. The licence of a person who is 68 years of age when the Act
takes effect terminates when he reaches his 73rd year.
4. The licence of a person who is 69 years of age when the Act
takes effect terminates when he reaches his 74th year.
5. The licence of a person who is 70 to 74 years of age when
the Act takes effect terminates when he reaches his 75th
year.
6. The licences of persons who are 75 years of age or older
when the Act takes effect shall terminate at once.
Article 20
Taxi Stations
A licence holder may make use of the services of any approved
taxi station in the area of his trade union, whose services are
available to him.
If a licence holder wishes to transfer his taxicab operation to
another station he shall give one month's notice of the
termination of his station permit.
A taxi station may not receive a taxicab for provision of station
services until a notification of the issue of an operating
licence or of transfer from another station has been received
from the trade union concerned.
A taxi station shall observe that the taxicab operators served
there make use of their operating licences, and notify the trade
union if this fails. A taxi station shall also notify the trade
union if a licence holder violates the station's rules and
sanctions are applied for that reason.
A supervision committee may issue rules relating to the services
rendered by taxi stations.
CHAPTER V
Miscellaneous Provisions
Section 21
A supervision committee may, for the time being, extend the
validity of exemptions relating to a licence holder's ownership
of the taxicabs he operates and to the use of operating licences,
which have been granted in accordance with previous regulations,
and which are in effect when this Regulation enters into effect.
Section 22
Violation of this Regulation shall bring fines in accordance with
Section 13 of Act no. 77/1989 on Motor Vehicles for Public Hire.
Section 23
This Regulation, which shall enter into effect on 1 July 1989,
is hereby ratified, to be observed by every person concerned. At
the same time the Regulation in respect of the Use of Taximeters
in Taxicabs, no. 136/1986, and the Announcement relating to the
same matter, no. 237/1988, are abrogated. Also, the following
regulations, which have applied to the limitation of the number
of taxicabs in individual trade union areas, are abrogated: Nos.
293/1985 and 206/1987 (Reykjavík); nos. 89/1962 and 374/1978
(Akranes); nos. 39/1966 and 3/1984 (Ísafjördur); no. 207/1978
(Saudárkrókur); no. 332/1988 (Akureyri); no. 145/1963
(Seydisfjördur); no. 279/1972 (Neskaupstadur); nos. 81/1967 and
19/1984 (Selfoss); nos. 23/1986 and 487/1986 (Hveragerdi); no.
810/1983 (Vestmannaeyjar); nos. 423/1974 and 2/1984 (Grindavík),
and nos. 356/1985 and 200/1987 (Keflavík).
42. Of the Frami statutes, relevant in the present case, Section 2
states as follows:
(translation)
"The purpose of the Association is:
a. To secure the professional interests of its members,
and to promote solidarity among professional taxicab
drivers.
b. To determine, negotiate and present demands relating
to the working hours, wages and rates of its members.
d. To keep the number of taxicabs for the transport of
persons limited in the area of the association, cf.
the Act on Motor Vehicles for Public Hire and the
Regulation on the limitation of the number of taxicabs
in Reykjavík and the allocation of operating licences.
e. To represent its members before the authorities."
The section contained no subsection (c).
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
43. The Commission declared admissible the applicant's complaint that
the obligation imposed on him to be a member of a trade union in order
to obtain or keep a licence to operate a taxicab was contrary to the
Convention.
B. Points at issue
44. The issues to be determined are
a) whether there has been a violation of Article 11 (Art. 11)
of the Convention,
b) whether there has been a violation of Articles 9 or 10
(Art. 9, 10) of the Convention, and
c) whether there has been a violation of Article 13 (Art. 13) of the
Convention.
C. Article 11 (Art. 11) of the Convention
45. Article 11 (Art. 11) of the Convention reads as follows:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State."
46. It is in dispute between the parties whether there has been an
interference with the right secured to the applicant by the above
provision.
47. The applicant submits that due to the Icelandic Government's
decision to oblige by law all persons licenced as taxicab operators in
Reykjavík and vicinity to become members of the Frami Automobile
Drivers' Association, he has been compelled to become a member of the
said association against his will as he would otherwise lose his
licence to pursue his occupation.
48. In particular he refers to the connection between the right to
form an association with others and the right to decline membership of
an association. A right to form associations for the promotion of, for
example, political opinions or personal interests would be of little
avail, so the applicant submits, if people could be bound by duty to
be members of other associations whose purpose it is to further
contrary opinions or interests as they please. In the applicant's
opinion the case centres around the question whether he should be
prevented from pursuing his occupation for not being willing to work
against his own views and interests.
49. The applicant maintains that the Convention secures to him the
right to form, with persons of similar views, an association against
the political objective of limiting the number of taxicabs whereas he
should not be compelled to be a member of an association working for
the opposite objective.
50. The Government submit that the Icelandic legislator has held that
compulsory membership of associations may be necessary in various areas
in order to organise the use or distribution of limited resources.
Furthermore, the Icelandic Constitution does not secure the right to
remain outside an association. In the Government's opinion the relevant
provision of the Constitution is not in conflict with the provisions
of the Convention which does not, in the Government's view, provide
that membership of an association may not be made compulsory.
51. The Government maintain that Article 11 (Art. 11) of the
Convention does not protect the "negative" freedom of association and
the fact that the Contracting States refrained from adopting an
explicit provision to that effect indicates that they did not find it
advisable to impose an international obligation of that nature,
preferring to leave such a decision to each individual State.
52. The Commission recalls that, while the Convention organs have
never expressly determined whether Article 11 (Art. 11) guarantees not
only freedom of association in the positive sense, but also, by
implication, a "negative right" not to be compelled to join an
association, a rule according to which no one may be compelled to
belong to an association features for example in Article 20 para. 2
of the United Nations Universal Declaration of Human Rights. It also
features in Article 11 para. 2 of the Community Charter of the
Fundamental Social Rights of Workers, adopted in Strasbourg on
9 December 1989 by the member States of the European Community.
53. Assuming that a general rule such as those mentioned above was
deliberately omitted from the Convention as submitted by the
Government, it does not follow that the negative aspect of a person's
freedom of association falls completely outside the ambit of Article
11 (Art. 11) and that each and every compulsion to join a particular
trade union is compatible with the intention of that provision. To
construe Article 11 (Art. 11) as permitting every kind of compulsion
in the field of trade union membership would strike at the very
substance of the freedom it is designed to guarantee (cf. Eur. Court
H.R., Young, James and Webster judgment of 13 August 1981, Series A
no. 44, pp. 21-22, para. 52).
54. Furthermore, the Commission notes that this negative aspect of
freedom of association is guaranteed, within the Council of Europe, in
Article 5 of the European Social Charter as interpreted by the
Committee of Experts set up under Article 25 of the Charter and to
which Iceland is a Party. Moreover, in line with this interpretation
of the Social Charter, and in seeking to "enhance the political value
of the Charter as an instrument for comparing, appraising and
stimulating national social policies based on respect for human
rights", the Parliamentary Assembly of the Council of Europe on
21 September 1991 adopted its Recommendation 1168 (1991) in which it
proposed the insertion into the Charter of a provision expressly
guaranteeing the negative aspect of freedom of association.
55. According to Article 11 (Art. 11) of the Convention the right to
form and to join trade unions is a special aspect of freedom of
association. The Commission considers that the notion of a freedom
implies some measure of freedom of choice as to its exercise. However,
whether that freedom of choice has been restricted in a way contrary
to Article 11 (Art. 11) of the Convention must, without losing sight
of the above general aspects, be examined in the light of the specific
circumstances of the particular case.
56. In the present case the Commission recalls that the applicant
applied in 1984 for a licence to operate a taxicab under the applicable
domestic legislation then in force. The Commission agrees with the
applicant that he would not have received a licence had he at that
moment refused to become a member of Frami. This is also exemplified
by the events which followed when he ceased paying membership fees.
However, it is clear from the judgment of the Icelandic Supreme Court
of 15 December 1988 that under Icelandic law there was at that time no
legal obligation to be a member of Frami for which reason the
revocation of the applicant's licence was declared null and void. It
follows, therefore, that as a consequence of the present Act on Motor
Vehicles for Public Hire, which entered into force on 1 July 1989, the
applicant was from that date onwards faced with the dilemma either of
joining Frami or of losing his licence for which membership of Frami
had not been a requirement when he first obtained it and which by then
he had had for several years.
57. In these cicumstances the Commission does not find it necessary
to determine whether Article 11 (Art. 11) guarantees the negative
aspect of freedom of association on the same footing as the positive
aspect. A threat of losing the taxicab licence, involving the loss of
livelihood, is a very serious form of compulsion to join a particular
trade union, and in the present case it was directed against a person
who was in possession of such a licence before the introduction of any
legal obligation to join such a union.
58. The Commission finds that such a form of compulsion strikes at
the very substance of the freedom guaranteed by Article 11 (Art. 11),
and therefore there has been an interference with that freedom (cf.
also the Young, James and Webster judgment mentioned above pp. 22-23,
para. 55).
59. Having found that there has been an interference with the freedom
guaranteed in paragraph 1 of Article 11 (Art. 11) of the Convention the
Commission must next consider whether this interference was justified
for any of the reasons set out in paragraph 2 of the that provision.
Accordingly it must be ascertained whether the interference was
"prescribed by law", whether it had a legitimate aim and whether it was
"necessary in a democratic society" for the aforesaid aim.
60. It is undisputed that the interference was prescribed by law. It
follows from Section 8, subsection 1 no. 6, of Act No. 77 on Motor
Vehicles for Public Hire that the applicant must be a member of Frami
in order to retain his taxicab licence. Furthermore, the Commission
will assume for the purpose of this case that the interference had the
aim of protecting the "rights and freedoms of others", this being the
only one of the aims listed in paragraph 2 that might be relevant.
61. What remains to be determined is accordingly whether it was
"necessary in a democratic society" to compel the applicant by law to
become a member of Frami if he wanted to keep his licence as a taxicab
operator.
62. From a general point of view the Commission recalls that when
considering the question of "necessity" a number of principles relevant
to its assessment have developed (cf. for example the above-mentioned
Young, James and Webster judgment p. 25, para. 63, with further
references).
63. Firstly, "necessary" in this context does not have the
flexibility of such expressions as "useful" or "desirable". Secondly,
in a "democratic society" tolerance and broadmindedness require that
a balance must be struck which ensures the fair and proper treatment
of minorities and avoids any abuse of a dominant position. Thirdly, any
restriction imposed on a Convention right must be proportionate to the
legitimate aim pursued.
64. The applicant submits that it is unacceptable that he should be
prevented from pursuing his occupation for not being willing to work
against his own views and interests. Taxicab operation may very well
be made subject to a licence and the number of licence holders limited
without imposing on these a duty to be members of an association like
Frami. The Government's emphasis on the importance of the role played
by Frami and similar associations in implementing the system now in
force is, according to the applicant, based on a misunderstanding. The
Act itself stipulates that the Committee for Taxicab Supervision
controls and supervises its implementation, and the Act, imposing the
obligation on the applicant to be a member of Frami, has no provisions
specifying Frami's purpose or functions. The power to decide in such
matters is exclusively entrusted to Frami itself, which inter alia has
led to a situation where the applicant had to tolerate that Frami's
funds were used to finance measures taken by the association against
a company of which he is one of the owners.
65. Finally, the applicant maintains that whereas Section 5,
subsection 1, of the Act seems to imply that it is necessary that all
persons within a certain area are members of the same association the
Minister of Communications may, under Section 14, subsection 2, grant
a derogation from this where appropriate. This, in the applicant's
opinion, demonstrates that the alleged necessity of union membership
is merely a pretext.
66. The Government submit that Frami is a non-political association
and its activities are not political in nature. The association has the
twofold role of protecting the interests of its members and of
supervising the services which its members are obliged to offer the
public. The fees paid to Frami by the applicant and others are
exclusively used to meet the costs incurred in the exercice of the
functions of the association itself.
67. Frami's functions involve, according to the Government, a control
that the services are actually performed and acceptably carried out,
a control of the use of the licences granted, as well as the granting
of exemptions from various duties as regards taxi services. If
memberships were voluntary Frami would not be able to carry out these
functions as its rules do not apply to non-members. The Government
maintain that where taxicab operation is limited the authorities can
only ensure proper performance by active supervision which has been
accomplished by entrusting it to the unions in question. Those who
apply for a licence are aware of the membership condition and this
requirement is only natural since all licence holders who benefit from
the limitation in numbers must accept administrative regulation of
their occupation in order to ensure an effective implementation.
68. Having regard to the general aspects, the parties' submissions
on the question of necessity as well as the facts of the present case
including the contents of Frami's statutes (see para. 42 above), the
Commission notes that Frami is not a public-law institution founded by
the legislature which might have rendered it an association falling
outside the ambit of Article 11 (Art. 11) of the Convention (cf. Eur.
Court H.R. Le Compte, van Leuven and de Meyere judgment of
23 June 1981, Series A no. 43, pp. 26-27, paras. 64-65). Frami is an
independent trade union and its internal organisation is outside public
control.
69. Furthermore the Commission recalls that Frami has been entrusted
with certain functions under Act no. 77 on Motor Vehicles for Public
Hire. However, Section 10 of the Act provides for the establishment of
a Committee for Taxicab Supervision whose task it is to "supervise and
control the implementation of laws and regulations relating to motor
vehicles for public hire in the union area, the allocation of operating
licences and their revocation, and control the services rendered by
taxi stations". In these circumstances the Commission does not find
that the additional involvement of Frami as a supervisory and
controlling body which, according to the Government, produces certain
advantages, could be considered to be conclusive in respect of the
necessity of the interference complained of. The Commission has not
been informed of any other reasons which could justify the imposition
of the requirement of the applicant's membership of Frami. In
particular the Commission has not found it established that Frami would
have been prevented from protecting its members' occupational interests
(cf. Eur. Court H.R., Swedish Engine Drivers' Union judgment of
6 February 1976, Series A no. 20, pp. 15-16, para. 40) even if the
legislation in force would not oblige taxicab operators, having
objections like the applicant, to join a union like Frami.
70. In these circumstances the Commission finds that the obligation
of membership of Frami which the applicant must endure goes further
than is required to achieve a proper balance between the conflicting
interests of those involved and cannot be regarded as proportionate to
the aim being pursued. Therefore, even taking into account the State's
margin of appreciation, the obligation complained of could not be
considered "necessary in a democratic society" within the meaning of
Article 11 para. 2 (Art. 11-2) of the Convention.
Conclusion
71. The Commission concludes, by seventeen votes to one, that there
has been a violation of Article 11 (Art. 11) of the Convention.
D. Articles 9 and 10 (Art. 9, 10) of the Convention
72. The applicant submits that the obligation to join Frami also
raises issues under Articles 9 and 10 (Art. 9, 10) of the Convention.
The Government have not expressed themselves on this point.
73. The Commission finds, however, that the facts of the present case
which have led the Commission to find a breach of Article 11 (Art. 11)
of the Convention are the same in so far as the issues arising under
Articles 9 and 10 (Art. 9, 10) are concerned. Article 11 (Art. 11)
itself contains elements which are generally part of the rights
guaranteed by Articles 9 and 10 (Art. 9, 10), i.e. it protects a
specific method or way of expressing a conviction or an opinion.
Article 11 (Art. 11), therefore, must in the present case be considered
as the lex specialis in relation to the other Articles. It is therefore
not necessary to deal with the complaints under these Articles
separately.
Conclusion
74. The Commission concludes, unanimously, that it is not necessary
to examine separately whether there has been a violation of Articles 9
and 10 (Art. 9, 10) of the Convention.
E. Article 13 (Art. 13) of the Convention
75. Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
76. The applicant invokes the above provision without, however,
submitting other arguments than those presented in respect of
Article 11 (Art. 11) of the Convention. The Government have not
expressed themselves on this point.
77. The Commission recalls that the applicant's complaint relates to
the fact that Act No. 77 on Motor Vehicles for Public Hire obliges him
to be a member of the Frami trade union. Accordingly, it is the
legislation itself which is the source of the grievance complained of.
In such circumstances a remedy would in effect amount to some sort of
judicial review of legislation because any other review could hardly
be effective. However, the Commission has constantly held that it
cannot be deduced from Article 13 (Art. 13) that there must be a remedy
against legislation as such which is considered not to be in conformity
with the Convention (cf. for example Young, James and Webster v. United
Kingdom, Comm. Report 14.12.79, para. 177, Eur. Court H.R., Series B
no. 39, p. 49). The Commission maintains this view.
Conclusion
78. The Commission concludes, unanimously, that there has been no
violation of Article 13 (Art. 13) of the Convention.
F. Recapitulation
79. The Commission concludes, by seventeen votes to one, that there
has been a violation of Article 11 (Art. 11) of the Convention
(para. 71).
80. The Commission concludes, unanimously, that it is not necessary
to examine separately whether there has been a violation of Articles 9
and 10 (Art. 9, 10) of the Convention (para. 74).
81. The Commission concludes, unanimously, that there has been no
violation of Article 13 (Art. 13) of the Convention (para. 78).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting opinion by Mr. Trechsel
Contrary to the majority of the Commission I have come to the
conclusion that, in the present case, there has been no violation of
Article 11 of the Convention although, in principle, I fully agree that
this guarantee includes a "negative side", i.e. the right not to join
an association.
However, in my view, Frami is not to be regarded as an
association within the meaning of Article 11. In spite of its name it
is not a trade union as its members are self-employed independent
business people operating their own taxicab (cf. Section 16 of the
Regulation No. 308/1989). I am not impressed with the fact that
Section 2 of the Frami statutes refers to "wages" as, in practice,
there can hardly be any employed taxi drivers under the present
legislation.
Although Frami is organised under private law, it falls to be
compared, in my opinion, with organisations such as the Ordre des
médecins which was at issue in the case of Le Compte, Van Leuven and
De Meyere (Eur. Court H.R., judgment of 23 June 1988, Series A no. 43,
pp. 26-27, paras. 64-65). It is, if not created by, at any rate
referred to in legislation (Section 8 of Regulation No. 308/1989) and
de facto also pursues an aim which is in the general interest, namely
the organisation of a system of transportation. It nominates a member
for a supervision committee in accordance with Section 10 of Act
No. 77/1989 on Motor Vehicles for Public Hire which shall issue and
allocate licences for the operation of taxicabs (Section 10 of
Regulation No. 308/1989), may issue rules relating to the services
rendered by taxi stations (Section 20) or extend the validity of
exemptions (Section 21).
I agree that these aims and functions are not reflected in
Section 2 of the Frami statutes as set out in para. 42 of the Report.
However, the Convention organs must look behind the appearances. In
reality, Frami exercises a number of important functions delegated to
the association by the public authorities. To me it is obvious that
this task cannot be attributed to a variety of organisations but must
be limited to a single body. At the same time it is also quite
acceptable that every operator of a taxicab be required to adhere to
this organisation.
I fully accept, on the other hand, that it is not quite
satisfactory to say that Frami is not an organisation within the
meaning of Article 11. It might therefore be argued that compulsory
adhesion is an interference which falls to be examined under para. 2
of Article 11. Under this assumption I find that the interference is
prescribed by law in the interest of the prevention of disorder and the
rights of others (the customers and competitors) and proportional to
those aims. It could reasonably be regarded as "necessary in a
democratic society".
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
22 December 1989 Introduction of the application
2 February 1990 Registration of the application
Examination of Admissibility
2 July 1990 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
11 December 1990 Submission of the Government's
observations
28 January 1991 Submission of the applicant's
observations
10 July 1991 Commission's decision to declare the
application admissible
Examination of the merits
7 December 1991 Consideration of the state of
proceedings
4 April 1992 Consideration of the state of
proceedings
15 May 1992 Commission's deliberations on
the merits, final votes and
adoption of the Report