AS TO THE ADMISSIBILITY OF Application No. 16130/90 by Sigurdur SIGURJONSSON against Iceland The European Commission of Human Rights sitting in private on 10 July 1991, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL F. ERMACORA G. SPERDUTI 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 Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 22 December 1989 by Sigurdur Sigurjonsson against Iceland and registered on 2 February 1990 under file No. 16130/90; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having regard to the observations submitted by the respondent Government on 11 December 1990 and the applicant's observations in reply submitted on 28 January 1991; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is an Icelandic citizen, born in 1952. He is a taxi driver and resides in Reykjavík, Iceland. Before the Commission he is represented by his lawyer, Mr. Jón Steinar Gunnlaugsson. In 1984 when the applicant applied to the Frami Automobile Drivers' Association for a licence to operate a taxicab from a taxi- station in Reykjavik the questions concerning taxi licences were regulated on the basis of Act No. 36/1970 on Motor Vehicles for Public Hire, and Regulation No. 320/1983 issued by the Minister of Communications concerning inter alia the allocation of taxicab operating licences in Reykjavík. Section 2 of the said Act authorised the Minister of Communications, at the request of the relevant union of operators of motor vehicles transporting persons (in the present case Frami), to limit the number of taxicabs operating in the union area, provided certain conditions were fulfilled. Section 2 also stated that such limitations should be set out by the Minister in a separate Regulation for each individual area. Section 10 of the Act provided that the Minister of Communications should issue a Regulation providing for the implementation of the Act in further detail containing, inter alia, provisions on allocation of licences for taxicab operation. Section 6 of Regulation No. 320/1983, issued in accordance with the above Act, 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 vehicles they operated, and the chairman by the Minister. 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 Supervision of Taxicab Operation (hereafter called the Committee). The decisions of the Committee suspending or revoking a licence could be appealed to the Minister of Communications. 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." 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 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)). As already indicated above the applicant applied, on 26 September 1984, for a licence to operate a taxicab. The application was written on a form printed for the purpose and was, according to its printed text, addressed to the Frami Automobile Drivers' Association. It stated that the applicant had until that time operated a taxicab accommodating up to eight passengers for more than 7 years and 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." On the basis of the above Act and Regulation the applicant was granted an operating licence by the then "licence allotters" (now the Committee) on 24 October 1984. His attention was drawn to his duty to become a member of Frami. 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. 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 that (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. ..." 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.". 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. 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." The Ministry of Communications sent a copy of its letter to the Chief of Police of Reykjavík. 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, and stated his intention of bringing a lawsuit for a declaratory judgment confirming this view following the courts' summer recess. His main arguments were explained 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. On 18 September 1986 the applicant instituted proceedings against the Committee for Supervision of Taxicab Operation 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. The applicant's claim in court was based, inter alia, on the argument that, with reference to Article 73 of the Constitution of the Republic of Iceland, 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. 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. 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. 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 where judgment was pronounced by seven judges on 15 December 1988. A majority of four judges 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) "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, 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." The Court's majority rejected, however, the applicant's argument that he could not, on account of Article 73 of the Icelandic Constitution, be obliged to remain a member of Frami. The Court stated in this respect as follows: (translation) "This provision (Article 73) of the Constitution is unchanged in substance from Article 55 of the Constitution relating to Matters Particular to Iceland, of 5 January 1874, which in turn was adopted from Article 92 of the Fundamental Law of Denmark, 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 effect, 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 Article 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." Three judges dissented, confirming as a whole the judgment of the lower court. 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. 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 conductors 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. Following the entry into force of Act No. 77/1989 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 Article 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 to the Human Rights Commission and the European Court of Human Rights." The applicant has not challenged the new legislation in the domestic courts. COMPLAINTS The applicant complains that due to the fact that 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. The applicant invokes Article 11 of the Convention or, in the alternative, Articles 9, 10 and 13 of the Convention. Relating to the construction of Article 11 of the Convention, the applicant in particular points out 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 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. The applicant maintains that the Convention (and in fact, the Constitution of Iceland as well) 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. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 22 December 1989 and registered on 2 February 1990. On 2 July 1990 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the application. After two extensions of the time-limit the Government submitted their observations on 11 December 1990. The applicant's observations in reply were submitted on 28 January 1991. THE LAW The applicant has complained that due to the fact that the Icelandic Government's decision to oblige by law all persons licensed as taxicab operators in Reykjavik 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. The applicant invokes Article 11 (Art. 11) of the Convention or, in the alternative, Articles 9, 10 and 13 (Art. 9, 10, 13) of the Convention. The Commission finds that the applicant's complaint must be examined under Article 11 (Art. 11) of the Convention rather than the alternative Articles to which he has referred. 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 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 State." First, the Commission recalls, however, that it is not required to decide whether or not the facts submitted by an applicant disclose any appearance of a violation of the provisions referred to if the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies has not been complied with. In other words, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. In the present case the respondent Government have argued that the legislation to which the applicant objects is new and has not been subject to review by the courts. Under Icelandic law the courts may lawfully diverge from their own precedents and therefore the applicant should have instituted proceedings in the ordinary courts of law regardless of any prior judgments concerning the matter. As he did not do so the Government maintain that he has not complied with the requirement of Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies. The applicant maintains that the Supreme Court in its judgment of 15 December 1988 clearly stated that Article 73 of the Icelandic Constitution did not prevent the legislator from obliging taxicab operators by legislation to become or remain members of a private association. In these circumstances it would be without any prospects of success to institute proceedings in court when the legislator makes use of this possibility. The Commission shares the applicant's view. It recalls that if it can be established that the remedies that may exist are ineffective or inadequate, the domestic remedies rule does not apply (see for example No. 8462/79, Dec. 8.7.80, D.R. 20 p. 184). By judgment of 15 December 1988 the Icelandic Supreme Court accepted that a professional licence to operate a taxicab could be made conditional upon the membership of an association, provided there was a legal basis for this requirement. Since such a legal basis has now been created by Act No. 77/1989 which took effect on 1 July 1989 the Commission finds that challenging this legislation in the ordinary courts of law would offer no prospects of success. Accordingly no effective remedy was available within the meaning of Article 26 (Art. 26) of the Convention for which reason the Commission does not reject the application for non-observance of the domestic remedies rule. It is thus called upon to deal with the substance of the case. In this respect the Commission has taken cognizance of both parties' submissions. After a preliminary examination of the case the Commission has reached the conclusion that it raises serious issues as to the interpretation and application of Article 11 (Art. 11) of the Convention and that these issues can only be determined after a full examination of their merits. It follows that the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Commission unanimouly DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits of the case. Secretary to the Commission President of the Commission (H. C. KRUGER) (C. A. NØRGAARD)