Administrative fine for operating without a limousine driver professional card; scope of the IMA and economic freedom

Facts

The appellant, a French national holding an EU/EFTA residence permit, was domiciled in Geneva from 5 May 2015 to 15 February 2016, then in Nyon (canton of Vaud). Since 14 September 2015 he has held a limousine registered in the canton of Vaud, used for the professional transport of persons.

On 1 October 2015 he was checked at Geneva International Airport while loading a client who had ordered through the Uber application. He did not hold a valid limousine driver card for Geneva. On 28 October 2015 he registered with the Vaud commercial register a sole proprietorship, whose seat has been in Nyon since 24 February 2016.

During a check on 21 July 2016, carried out with the road safety brigade, he picked up a client in the city centre of Geneva for CHF 15. He stated that he worked as a self-employed person, without a professional card, and that he carried out the majority of his rides within Geneva territory. The cantonal Service asked him for communal authorisations by invoking the IMA, and he did not respond. A check on 12 November 2016 concerned a Geneva ride to France for CHF 20 to 30, without a professional card. A professional card for a vehicle for transport with driver (VTC) was issued to him on 18 August 2017, at his request.

By decision of 5 July 2018, the Service de police du commerce et de lutte contre le travail au noir (cantonal Service) imposed on him an administrative fine of CHF 930 for violation of Art. 5 para. 1 and Art. 7 aLTaxis (exercising the activity of limousine driver without a professional card), pursuant to Art. 45 para. 1 aLTaxis.

By judgment of 13 February 2019 (ATA/139/2019), the Administrative Chamber of the Court of Justice of Geneva partially upheld the appeal, reducing the fine to CHF 700 because of the time-bar of the facts of 1 October 2015, and dismissed it for the remainder.

The appellant lodges a public law appeal and principally seeks annulment of the cantonal judgment, in the alternative remittal for a new decision, and in the further alternative a reduction of the fine. The cantonal Service seeks a finding of inadmissibility for lateness, in the alternative dismissal. The Court of Justice waives the filing of observations.

Main question: did the application of the IMA allow the appellant to practise without a Geneva card, and are the cantonal requirements and the fine consistent with federal law (primacy of federal law, economic freedom, proportionality)?

Considerations

The Federal Supreme Court examines of its own motion its jurisdiction and the admissibility of the appeal. The public law appeal is open against a final cantonal decision of last instance in a public law matter. The time limit has been observed, notification having taken place on 18 February 2019 and the appeal having been lodged on 20 March 2019. The appellant has standing to appeal. The cassatory conclusions are admissible, the annulment of the fine being sought.

The appeal cannot criticise cantonal law as such, except for arbitrariness or violation of a constitutional right subject to a qualified statement of reasons (Art. 106 para. 2 FSCA). The appellant does not invoke arbitrariness. The questions of time-bar and cantonal transitional law are therefore not examined. The facts are binding on the Federal Supreme Court (Art. 105 para. 1 FSCA), unless established in a manifestly inaccurate manner.

As to the IMA, the principle is that an external provider may practise throughout Switzerland in accordance with the rules of its place of origin, namely the canton where it has its seat or establishment (Art. 1 and 2 IMA). The place of establishment corresponds to the centre of activities. A person must already have effectively carried on the activity in the canton that authorised it; an establishment created solely to benefit from the rules of the internal market constitutes an abuse of rights. In this case, the activity was concentrated in Geneva, the appellant did not demonstrate carrying on the essential part of his activity outside that canton, and the Vaud registration and the domicile in Nyon are not sufficient to make the canton of Vaud the canton of origin. The cantonal court could tenably find an abuse of rights. The registration of the vehicle does not indicate the place of establishment. The inquisitorial maxim is tempered by the duty to cooperate, all the more so as the appellant knew the facts better. The IMA therefore does not apply.

As to the primacy of federal law (Art. 49 Cst.), legislative competence over taxis and authorisations belongs to the cantons, federal law not regulating…