CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)