Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23285/94

by Magnus Gunnar GUDMUNDSSON

against Iceland

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 November 1993

by Magnus Gunnar GUDMUNDSSON against Iceland and registered on

21 January 1994 under file No. 23285/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is an Icelandic citizen, born in 1917. Before the

Commission he is represented by Mr. Jón Steinar Gunnlaugsson, a lawyer

practising in Reykjavík.

The applicant became a taxi driver in Reykjavík in 1944. At that

time the occupation as taxi driver was open and unrestricted for any

qualified person. Restrictions in this respect were first enacted in

1953 by the Law on Taxicabs in Townships, no. 23/1953. Pursuant to this

Act the applicant was granted a taxi licence on 25 May 1955. The

licence permitted him to operate one taxi, carrying up to eight

passengers, from a station in Reykjavík. The applicant subsequently

worked as a taxi driver at the Hreyfill taxi station.

The Law on Taxicabs, no. 77/1989, entered into force on

1 July 1989. According to section 9 para. 1 of the Act a taxi licence

would cease to be valid when the holder of such a licence attained the

age of 70 years. Section 14 para. 4 furthermore stated as follows:

(Translation)

"Notwithstanding the provision of section 9 para. 1,

persons who have attained the age of 66 years or more at

the time the present Law enters into force may be allowed

to retain their operating licences for an additional period

of up to five years, provided they meet in other respects

the conditions set out herein. However, operating licences

may not be extended beyond a holder's age of 75 years."

On 4 January 1993 the applicant received a letter from the Frami

Automobile Drivers' Association, by which he was notified that his taxi

licence had been withdrawn as from 31 December 1992 pursuant to the

above provisions of the Law on Taxicabs.

The applicant considered that this withdrawal of his taxi licence

was contrary to Icelandic constitutional law in that it infringed upon

rights guaranteed to him by the constitutional principle of equality

under the law. On 11 February 1993 he therefore brought legal action

in the District Court of Reykjavík against the Minister of

Communications, the Taxicab Supervision Committee in the area of the

Frami Automobile Drivers' Association, and the Association itself, for

a judgment declaring that his operating licence remained in effect,

despite his having attained the age of 75 years.

As mentioned above, the applicant maintained that his

constitutional right to equality under the law had been infringed and

referred in this context in particular to section 67 of the Icelandic

Constitution which protects private property. He maintained that the

rights stemming from his taxi licence were his property within the

meaning of this provision, and that it consequently was protected as

such. He considered that one important principle inherently included

in this provision was that any limitation or modification of the right

of private property would have to be done in a non-discriminatory

manner. He maintained that the principle of equality was a

constitutional principle applying generally when the rights of the

citizens were limited or restricted and was also an inherent part of

section 69 of the Constitution which protects individual freedom of

employment.

In support of his allegations the applicant pointed out that it

was only professional drivers operating vehicles carrying up to eight

passengers who would lose their occupation when they attained a certain

age. Thus, they did not enjoy a status equal to that of other

professional drivers in this respect, whether they be lorry drivers,

delivery van drivers or long distance bus drivers.

Furthermore, the applicant referred to the fact that the Law did

not oblige all drivers operating passenger vehicles carrying up to

eight passengers to accept such a restriction of the freedom to pursue

their occupation. The restriction only applied to drivers in areas

where the Minister of Communications had made use of his authority

under section 4 of the Law to limit the number of taxicabs. Drivers

outside those areas did not need taxi licences, and therefore they did

not have to accept being deprived of their occupation when they

attained a certain age. Accordingly, the applicant did not enjoy the

same rights as they did.

The District Court of Reykjavík passed judgment in the case on

16 March 1993, by which the applicant's requests were rejected. The

Court confirmed that the principle of equality should be respected in

the disputed legislation but found:

(Translation)

"When considering whether other groups are in incomparable

situations the primary question is whether there were valid

reasons to limit the maximum age requirement to drivers

licensed to operate passenger vehicles carrying up to eight

passengers in the areas where a limitation in the number of

taxicabs is in effect, while not making the same

requirement of other professional drivers. If such reasons

are found, the respective groups cannot be deemed

comparable.

This directs the attention to lorry drivers and delivery

van drivers. The Court sustains the view of the respondents

that the services provided by them in the field of goods

transport are, in nature and content, very different from

those provided by passenger-carrying taxicabs. The

limitation of the number of delivery vans is organised in

a different fashion, and the diversity of the vehicles is

greater. Furthermore, the customer group is different. The

services of lorry drivers are frequently provided by

tender, where different principles apply. These groups are

therefore not comparable.

As regards long distance bus drivers the comparison is not

valid, if only for the reason that both permits for route

services and group travel services are limited in time.

...

The group that gives the closest comparison is that of the

drivers who professionally drive taxis carrying up to eight

passengers outside the areas where the number of taxicabs

is limited. No information on the size of this group has

been submitted.

A limitation in the number of taxicabs entails a

restriction of the freedom of employment of the persons who

seek to employ themselves by driving passenger vehicles in

the areas where a limitation is in effect, and who qualify

in other respects for receiving a licence for such

operation. Taxi drivers licensed to operate within the

limitation areas are also free to operate outside them,

whereas drivers who operate outside the limitation areas

are not allowed to operate within them, cf. section 5

para. 3 of Law no. 77/1989. Only the former group enjoys

protection against unlimited competition, which is

conducive to more secure livelihood. The view of the

respondents that the generally declining ability of older

taxi drivers to provide satisfactory service to the

customers is of less importance outside the limitation

areas can also be accepted, as the customers are there in

a better position to choose a driver who is capable of

providing adequate service.

The view of (the applicant) that the restriction is of an

arbitrary nature cannot be sustained, as the number of taxi

drivers in a given area is not made subject to limitation

unless this is requested by the relevant union of taxicab

drivers, of which all professional taxicab drivers are

members.

Having regard to the above the Court finds that taxi

drivers outside the limitation areas cannot be compared,

with respect to the maximum age limit, to drivers working

within those areas.

The Court therefore holds that the provision of section 9

para. 1, cf. section 14 para. 4, of Law no. 77/1989,

entails an equal restriction of the freedom of employment

of all professional drivers to whom the same conditions

apply, i.e. of those who have been licensed to operate

taxicabs carrying up to eight passengers in areas where a

limitation of the number of taxicabs has been permitted.

Consequently, the equality principle of Icelandic law is

not deemed to have been set aside by the constitutionally

valid enactment of the provisions mentioned. The requests

of (the applicant) that his claims against the respondents

in this case be granted shall therefore be dismissed."

The applicant appealed against this judgment to the Supreme Court

which pronounced judgment on 3 June 1993. Four of the five judges

confirmed the District Court judgment, whereas one judge dissented. In

its judgment the majority stated inter alia as follows:

(Translation)

"The Court sustains the opinion of the District Court that

different considerations apply to the organisation of

taxicab services for passenger transport and to other motor

vehicles operated by professional drivers.

The Court also sustains the view that persons who are

licensed for providing taxi services in areas where their

number is limited are thereby granted a privilege not

enjoyed by persons outside those areas. The conditions of

employment within and outside those areas are therefore not

the same. The considerations underlying the arrangement of

making age requirements a condition for being entitled

to this employment relate to safety and to service quality.

Accordingly, the view of the District Court that section 9

para. 1 of Law no. 77/1989 concerning maximum age of taxi

drivers is based on generally applicable and objective

considerations, and that the enactment of the Law was not

contrary to the principle of equality, since it applies to

all persons in the same circumstances, shall be confirmed.

The Law therefore does not conflict with the equality

principle of the Icelandic Constitution.

The judgment under appeal shall therefore be confirmed."

The dissenting judge stated as follows:

(Translation)

"According to section 69 of the Icelandic Constitution no

restriction may be placed upon individual freedom of

employment, unless legislated for as being required by the

common good. Such restrictions must not conflict with the

constitutional principle of equality under the law. They

must have the same impact on all persons who can be deemed

to be in the same situation as regards the employment in

question, and in this respect section 67 of the

Constitution must also be kept in mind.

The limitation of the number of taxicabs first authorised

by Law no. 25/1955 amending Law no. 23/1953 on Taxicabs in

Townships was based on an assessment of society's needs,

and has been deemed required by the common good, cf.

Supreme Court Reports 1964, p. 960. Among its objectives

was to provide a measure of employment protection to taxi

drivers in certain areas, which drivers in other and less

populous areas did not enjoy. It is, however, uncertain

whether the members of the former group were, in actual

practice, provided by these means with a more secure basis

for gainful employment than were members of the latter

group. This limitation of the number of taxis cannot be

regarded of sufficient importance to justify a reduction in

the status of the taxi drivers to which it applies as

regards their freedom of employment after they have

attained a certain age. In this context it must not be

overlooked that generally the right of any individual to

pursue his occupation is of fundamental importance.

Law no. 77/1989 on Taxicabs was the first enactment that

provided for an age limitation applicable to operators of

taxicabs carrying up to eight persons. The limitation only

applies to taxicab operators in union areas where the

Ministry of Communications has authorised a limitation in

the number of taxicabs. The age limitation, which according

to the above is not justified by a limitation in the number

of taxicabs, involves discrimination on the basis of the

place of residence of the operators. It is already for that

reason unconstitutional. ..."

COMPLAINTS

The applicant maintains that the withdrawal of his taxi licence,

and thus his right to pursue his occupation, as from 1 January 1993

falls under Article 1 of Protocol No. 1 to the Convention. This being

so the applicant maintains that Article 14 protects him from

discrimination when his right to pursue his occupation was restricted.

He maintains that the judgments pronounced in this case fall short of

providing adequate justification for the difference in legal status

between himself and the members of the other groups of professional

drivers. Accordingly, the applicant complains that he has been

discriminated against contrary to Article 14 of the Convention read in

conjunction with Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicant complains that as a result of the application of

sections 9 and 14 of the Law on Taxicabs, no. 77/1989, he has been a

victim of a violation of Article 14 of the Convention, taken together

with Article 1 of Protocol No. 1 (Art. 14+P1-1) to the Convention. As

far as relevant, these provisions read:

Article 14 (Art. 14) of the Convention

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

Article 1 of Protocol No. 1 (P1-1) to the Convention

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. ..."

According to the established case-law of the Commission and the

European Court of Human Rights, Article 14 (Art. 14) complements the

other substantive provisions of the Convention and its Protocols. It

has no independent existence, since it has effect solely in relation

to the "rights and freedoms" safeguarded by these provisions. Although

the application of Article 14 (Art. 14) does not presuppose a breach

of one or more of such provisions there can be no room for its

application unless the facts of the case fall within the ambit of one

or more of the latter (cf. for example Eur. Court H.R., Inze judgment

of 28 October 1987, Series A no. 126, para. 36, p. 17).

The applicant does not allege a violation of Article 1 of

Protocol No. 1 (P1-1) taken alone and it thus suffices to ascertain

whether his complaints fall within the ambit of this provision.

As regards the question as to whether a licence to conduct

certain economic activities could give the licence-holder a right which

is protected under Article 1 of Protocol No. 1 (P1-1), the Commission

considers that the answer will depend inter alia on the question

whether the licence can be considered to create for the licence-holder

a reasonable and legitimate expectation as to the lasting nature of the

licence and as to the possibility to continue to draw benefits from the

exercise of the licensed activity. Furthermore, the Commission notes

that a licence is frequently granted on certain conditions and that the

licence may be withdrawn if such conditions are no longer fulfilled.

In other cases, the law itself specifies certain situations in which

the licence may be withdrawn.

It follows, in the Commission's opinion, that a licence-holder

cannot be considered to have a reasonable and legitimate expectation

to continue his activities, if the conditions attached to the licence

are no longer fulfilled or if the licence is withdrawn in accordance

with the provisions of the law which were in force when the licence was

issued (cf. No. 10426/83, Dec. 5.12.84, D.R. 40 p. 234). As regards

expectations for future earnings, the Commission also recalls its

previous case-law to the effect that future income could only be

considered to constitute a "possession", if it had already been earned

or where an enforceable claim existed to it (cf. Dec. 8410/78,

13.12.79, D.R. 18, p. 216 at 219).

In the present case the Commission recalls that the applicant

became a taxi driver at a time when no particular restrictions were

placed on such activity. It was only at a much later stage the Law on

Taxicabs introduced the age limit for taxi drivers which led to the

withdrawal of the applicant's licence. Until then the Commission finds

that the applicant could be considered as having a legitimate

expectation to continue his activities regardless of his age. In these

circumstances the Commission finds that the facts at issue fall within

the ambit of Article 1 of Protocol No. 1 and that Article 14

(P1-1+14) of the Convention, taken together with that provision,

therefore applies.

As regards the elements of discrimination, as alleged by the

applicant, the Commission recalls that Article 14 (Art. 14) affords

protection against discrimination, that is treating differently,

without objective and reasonable justification, persons in "relevantly"

similar situations (cf. e.g. Eur. Court H.R., Fredin judgment of

18 February 1991, Series A no. 192, p. 19, para. 60). For a claim of

a violation of Article 14 (Art. 14) to succeed, it has therefore first

to be established that the situation of the applicant can be considered

similar to that of others who have been better treated.

The applicant has tried to demonstrate that this condition is

satisfied by referring to the fact that an age limit does not apply to

other professional drivers, such as lorry drivers, delivery van drivers

or long distance bus drivers.

The Commission does not agree with the applicant on this point.

Separate regulations exist in Iceland setting out conditions for

operating taxis, lorries, delivery vans, buses, etc. inter alia due to

the variety of services provided by them and the customer groups

involved. Thus, the Commission considers, as did the national courts,

that licensed taxi drivers, as the applicant, cannot be compared with

other professional drivers outside this profession. Accordingly, no

issue of discrimination contrary to Article 14 (Art. 14) arises.

The applicant also bases his allegation of discriminatory

treatment on the fact that taxi drivers operating outside areas where

a taxi licence is required are not obliged to accept the age limit in

question.

Whereas the Commission agrees with the applicant that the

situation of these two groups of taxi drivers may be considered to be

relevantly similar for the purposes of Article 14 (Art. 14), the

Commission recalls that for the difference of treatment to be

discriminatory within the meaning of this provision it must be found

to have no objective and reasonable justification, that is, if it does

not pursue a legitimate aim or if there is no reasonable relationship

of proportionality between the means employed and the aim sought to be

realised. Furthermore, the Contracting States enjoy a certain margin

of appreciation in assessing whether and to what extent the differences

justify a different treatment in law (cf. e.g. Eur. Court H.R., Lithgow

and Others judgment of 8 July 1986, Series A no. 102, pp. 66-67,

para. 177).

In the present case the Commission recalls that in Iceland the

Ministry of Communications may, at the request of the relevant trade

union of automobile drivers and following the recommendation of the

town councils and the regional boards in the area of the union, limit

the number of motor vehicles for public hire operating there. A

regulation to this effect has been issued by the Ministry of

Communications and it seems to cover most parts of the more densely

populated areas of the country. This licensing system was introduced

already in 1955 and was based on an assessment of society's needs and

on what was deemed required by the common good. The Commission is

satisfied that the reasons for this system are objective and

reasonable. Furthermore, the Commission recalls from the Supreme Court

judgment of 3 June 1993 that the underlying considerations for the

arrangement of making age requirements a condition for being entitled

to employment as a taxi driver relate to safety and service quality.

In view of these legitimate objectives being pursued in the

public interest and having regard to the Icelandic authorities' margin

of appreciation the difference in treatment between taxi drivers inside

and outside areas requiring a taxi licence cannot be considered as

unreasonable or as imposing a disproportionate burden on the applicant

in the specific case, also having regard to the fact that it was not

implemented in respect of him before he had reached the age of 75.

Consequently, the treatment was not discriminatory and the present case

does not disclose any appearance of a violation of Article 14 of the

Convention taken in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1).

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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GUDMUNDSSON v. ICELAND

GUDMUNDSSON v. ICELAND