AS TO THE ADMISSIBILITY OF
SUR LA RECEVABILITÉ
Application No. 18168/91
by Dieter ALLESCH and Others
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 1 December 1993, the following members being present:
MM. A. WEITZEL, President
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
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 19 April 1991
by Dieter ALLESCH and Others against Austria and registered on 6 May
1991 under file No. 18168/91;
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.
All applicants are Austrian nationals and civil engineers by
profession (a list of the applicants is attached as Appendix I).
Before the Commission they are represented by Mrs. K. Rueprecht, a
lawyer practising in Vienna.
A. Particular circumstances of the case
The applicants are members of the Federal Engineer Chamber
(Bundes-Ingenieurkammer) and are affiliated compulsorily to its Pension
Fund (Versorgungsfonds).
In 1989 the first to fifth applicants (Group A of the applicants)
applied to the Committee of the Welfare Institution of the Federal
Engineer Chamber (Kuratorium der Wohlfahrtseinrichtung der Bundes-
Ingenieurkammer) to be exempted of the liability to contribute to the
Pension Fund. They submitted that they were already compulsorily
affiliated to a general Old Age Pension Scheme (gesetzliche
Pflichtversicherung) as they were gainfully employed besides their
professional activities as self-employed.
Also the sixth to thirty first applicants (Group B of the
applicants) applied to the Committee to be exempted from the liability
to contribute to the Pension Fund. They submitted that following a
previous gainful employment they continued to be voluntarily affiliated
to a general Old Age Pension Scheme (freiwillige Weiterversicherung).
Before the Committee the applicants of Group A and B submitted
that neither the Federal Engineers Chamber Act (Ingenieur-Kammergesetz)
nor the Statute of the Welfare Institutions of the Federal Engineers
Chamber (Statut der Wohlfahrtseinrichtungen der Bundes-Ingenieurkammer)
provided for an exemption from the liability to pay contributions to
the Pension Fund if members of the Chamber were already insured under
other pension schemes. The compulsory affiliation to the Federal
Chamber's Pension Fund was not objectively justified (sachlich nicht
gerechtfertigt) and thus violated their constitutional right to equal
treatment (Recht auf Gleichheit).
The thirty second to thirty sixth applicants (Group C of the
applicants) applied to the Committee to render a declaratory decision
(Feststellungsbescheid) on their liability to contribute to the Pension
Fund. These applicants were not affiliated to any other pension
scheme. They submitted that the liability to contribute to the Pension
Fund violated their constitutional right to equality and property and
that a declaratory decision was necessary for bringing their case to
the Constitutional Court.
On 19 January, 15 February and 23 March 1990 the Committee
dismissed the applicants' respective applications. In similarly
reasoned decisions, it found that all the applicants were civil
engineers and at the time they became members of the Engineer Chamber
not yet fifty years of age. Thus, the ground for exemption as provided
for in Section 6 of the Statute was not applicable, and all applicants
were liable to contribute. All applicants appealed against the
Committee's decisions.
On 27 April 1990 the Assembly (Kammertag) of the Federal Engineer
Chamber dismissed the appeals by identical decisions against all the
applicants. It found that, according to the jurisprudence of the
Constitutional Court (Verfassungsgerichtshof) and Administrative Court
(Verwaltungsgerichtshof), the liability to contribute to the Pension
Fund was in accordance with the Federal Constitution.
On 19 July 1990 the applicants lodged a joint complaint with the
Constitutional Court. They submitted that the Assembly's decision was
based on unconstitutional provisions of law, that the Assembly's
decision violated the principle of equality and their right to property
and that the Committee and the Assembly were no tribunals within the
meaning of Article 6 para. 1 of the Convention.
On 24 September 1990 the Constitutional Court refused to
entertain the applicants' complaint. Referring to its earlier case
law, the Constitutional Court found that compulsory affiliation to more
than one pension scheme was compatible with the constitutional
principle of equality. As regards the applicant's complaint under
Article 6 para. 1 of the Convention the Court found that Article 6 of
the Convention did not apply as the complaint concerned the applicants'
liability to contribute to a pension scheme and not claims for
benefits.
B. Relevant domestic law
The Federal Engineer Chamber Act, Federal Law Gazette 1969/71
(Ingenieur-Kammergesetz, BGBl. 1969/71) establishes four Regional
Chambers (Länderkammern) and a Federal Chamber (Bundeskammer), which
are public law institutions. Membership in a Regional Chamber and the
Federal Chamber is compulsory for civil engineers who exercise their
profession (S. 5).
The Regional Chambers have to represent the professional, social
and economic interests of its members, to ensure the respect of the
professional honour (Wahrung des Standesansehens) and to control the
fulfilment of the professional duties (S. 2). The Federal Chamber is
competent for matters which concern the professional, social and
economic interests of members of two or more Regional Chambers, inter
alia, to institute and manage the Common Welfare Institutions (gemein-
same Wohlfahrtseinrichtungen) for civil engineers (S. 19 para. 2).
As common welfare institutions for civil engineers and their
surviving dependants, a Pension Fund (Versorgungsfonds) and a Burial
Fund (Sterbekasse) are instituted and managed (S. 27 para. 1). The
means of these Funds are raised by contributions. The amount of the
contributions are fixed by the Federal Chamber's Assembly (Kammertag).
The Assembly has to take into consideration the amount of benefits
granted and to fix the contributions in such an amount that it
corresponds to the necessities of the Funds having regard to their
permanent existence and continued financial capacity (S. 27 para. 4).
The management of the Pension Fund and the Burial Fund is
distinct from the management of other assets of the Federal Chamber,
and is the duty of a Committee (Kuratorium), composed of delegates from
the Regional Chambers (S. 28).
S. 29 provides for the adoption of a Statute for the Welfare
Institutions (Statut der Wohlfahrtseinrichtungen) by the Assembly of
the Federal Engineer Chamber (Kammertag). In the Statute, the
following matters have to be regulated in more detail: the function
of the Pension Fund and Burial Fund; the raising and management of the
Funds' means; the administration of the Committee; the liability to
contribute to the Funds; the granting of benefits, their amount and how
they are paid. The duties of contributors to the Funds have to be
regulated in accordance with Sections 27, 28 and 29 para. 2 to 7 of the
Act. In doing so the principles of insurance mathematics and
management necessities have to be taken into account. The Statute must
be published in the gazettes of the Federal Chamber and the Regional
Chambers (para. 1).
Civil engineers are, if not provided otherwise, liable to
contribute to the Pension Fund and the Burial Fund (S. 29 para. 2).
Civil engineers who do not exercise their profession (Ruhen der
Befugnis) are exempt from the liability to contribute to the Pension
Fund (S. 29 para. 3). Civil engineers who have passed a certain age,
which in the Statute must not be fixed lower than fifty years, can be
exempted as well (S. 29 para. 7).
The Statute has to provide for a reduction of the liability to
contribute to the Pension Fund, which must not surpass the following
percentages: 75 % if a member is affiliated to another general Old Age
Pension Scheme; 85 % if the member's yearly income is lower than the
amount which corresponds to 300 units of the basic fee for civil
engineers (Zeitgrundgebühr) as provided for in the Fee Regulation
(Gebührenordnung) and 75 % in the case of 400 units; 50 % if the
levying of the full contribution would constitute a grave hardship
(S. 29 para. 4). If the contributions are reduced, the benefits are
reduced accordingly (para. 5).
The Statute may also provide that civil engineers exempt from the
liability to contribute may continue to pay contributions on a
voluntary basis or that civil engineers liable to contributions may pay
higher contributions as a voluntary pension insurance (S. 29 para. 6).
The Statute of the Welfare Institutions in force repeats in its
Section 6 the contents of S. 29 of the Chamber of Engineers Act.
Section 7 of the Statue regulates the amount of the contributions to
the Pension Fund by setting out a list of percentages, grouped
according to age, which are applied to the liable person's income. The
percentage is based on the basic fee for civil engineers as provided
for in the Fee Regulation, if the Fee Regulation is amended, the
percentage has to be revised accordingly.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 that
the obligation to pay contributions to the Engineer Chamber's Pension
Fund violated their right to property as it constitutes a
disproportionate restriction of the use of their property. They submit
that the Engineers Chamber Act did not regulate itself with sufficient
precision the liability to contributions and their amount but delegated
this to the Statute of the Welfare Institutions. They also consider
that the compulsory affiliation to the Chamber's Pension Fund was a
disproportionate measure for achieving the aim of securing the
provision of aged civil engineers. In this respect they submit that
the contribution-benefit ratio of the civil engineer's pensions scheme
was much less favourable than private pension plans or even other
pension schemes for liberal professions or the general Old Age Pension
Schemes.
2. The applicants complain under Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 that they were
discriminated against members of other liberal professions, like
veterinary surgeons, who had the right to be exempted from
contributions to their Chamber's pension scheme if they were employed
as civil servants, while civil engineers in comparable circumstances
could only apply for a reduction of their contributions. Moreover only
civil engineers who were affiliated to a general Old Age Pension Scheme
could apply for a reduction of their contributions while no such
possibility existed for civil engineers who had subscribed to a private
pension plan.
3. Lastly, the applicants complain that the question of their
compulsory affiliation to the Pension Fund was not determined by an
impartial and independent tribunal established by law as required by
Article 6 para. 1 of the Convention.
THE LAW
1. Under Article 1 of Protocol No. 1 (P1-1) the applicants complain
that the obligation to pay contributions to the Engineer Chamber's
Pension Fund violated their right to property.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"(1) Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by
the general principles of international law.
(2) The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other penalties."
The Commission recalls that Article 1 of Protocol No. 1
(P1-1) in substance guarantees the right of property and comprises
"three distinct rules": the first rule, set out in the first sentence
of the first paragraph, is of a general nature and enunciates the
principle of the peaceful enjoyment of property; the second rule,
contained in the second sentence of the first paragraph, covers
deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, recognizes that the
Contracting States are entitled, amongst other things, to control the
use of property by such laws as they deem necessary in the general
interest or to secure the payment of taxes or other contributions.
However, the three rules are not "distinct" in the sense of being
unconnected: the second and third rule are concerned with the
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule (cf. Eur. Court
H.R., James and Others judgment of 21 February 1986, Series A no. 98,
p. 30 para. 37; Tre Traktörer AB judgment of 7 July 1989, Series A no.
159, pp. 22-23, para. 54).
The obligation to make compulsory contributions to a social
insurance scheme is within the right of a State "to secure the payment
of taxes or other contributions" within the meaning of the second
paragraph of Art. 1 of Protocol No. 1 (see No. 5763/72, Dec. 18.12.73,
Collection 45, p. 76 at 82; No. 11036/84, Dec. 2.12.85, D.R. 45, p. 211
at 222). A financial liability arising out of the raising of taxes or
contributions may adversely affect the guarantee of ownership if it
places an excessive burden on the person concerned or fundamentally
interferes with his financial position. However, it is in the first
place for the national authorities to decide what kind of taxes or
contributions are to be collected. Furthermore, the decisions in this
area will commonly involve the appreciation of political, economic and
social questions which the Convention leaves within the competence of
the Contracting States. The power of appreciation of Contracting
States therefore is a wide one (see No. 11036/84, Dec. 2.12.85, D.R.
45, p.211 at 222).
The Commission notes that in the present case, the applicants'
liability to contribute to the Pension Fund is based on the Engineer
Chamber Act and the Statutes of the Welfare Institutions emanating from
the Assembly of the Federal Chamber. The Commission finds that the
combined application of the provisions of the Engineer Chamber Act and
the Statute provide for a basis in domestic law for the interference
with the applicants' rights which were sufficiently clear to enable the
applicants to foresee their compulsory affiliation and the consequences
thereof (cf. mutatis mutandis Eur. Court H.R., Barthold judgment of 25
March 1985, Series A no. 90, p. 21, para. 45).
The Commission further considers that the liability of civil
engineers to contribute to the Pension Fund was based on considerations
of social policy, namely to secure the provision of aged members of the
profession and of their surviving dependants by a pension scheme based
on the principle of solidarity. The Commission finds no indication
that the rules on compulsory affiliation to the Pension Fund and their
application in the present case went beyond the limits of appreciation
left to the Contracting States.
It follows that there is no appearance of a violation of the
applicants' rights under Article 1 of Protocol No. 1 (P1-1).
This part of the application, therefore, is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants complain further that they were subject to
discrimination in violation of Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).
Article 14 (Art. 14) of the Convention reads as follows:
"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."
The applicants submit that members of other liberal professions,
like veterinary surgeons, had different rules governing their Pension
Fund which they consider to be more advantageous.
The Commission recalls that Article 14 (Art. 14) safeguards
individuals, placed under analogous situations, from discrimination
(see Eur. Court H.R., van der Mussele judgment of 23 November 1983,
Series A no. 70, p. 22, para. 46). The Commission recalls further that
in the quoted judgment the Court has found that no such analogous
situation existed as regards the bar and other professions, like
veterinary surgeons, pharmacists, dentists and the judicial and
parajudicial professions as each of them was characterized by a corpus
of rights and obligations
of which it would be artificial to isolate one specific aspect (loc.
cit.).
In the present case, the Commission likewise considers that the
applicants failed to show that, as regards the Pension Fund set up by
the Federal Engineer Chamber, they were in an analogous situation as
other liberal professions, and in particular veterinary surgeons and
their respective old age pension schemes. The Commission finds that
in these circumstances the differences regarding the liberal
professions do not constitute discrimination prohibited by Article 14
(Art. 14) of the Convention.
The applicants also complain that only civil engineers who were
affiliated to a general Old Age Pension Scheme could apply for a
reduction of their contributions while no such possibility existed for
civil engineers who subscribed to a private pensions plan.
The Commission finds that considerable differences between a
general Old Age Pension Scheme forming part of the general social
policy of a State and based on the principle of solidarity and pension
plans offered by private insurance firms exist. Therefore the
Commission finds that the difference drawn by Section 29 para. 4 of the
Engineer Chamber Act is based on an objective and reasonable criterium
and does not constitute discrimination prohibited by Article 14
(Art. 14) of the Convention.
It follows that this part of the application is also manifestly
ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Lastly, the applicants complain that the question of their
compulsory affiliation to the Pension Fund was not determined by an
impartial and independent tribunal established by law as required by
Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing ... by an
independent and impartial tribunal established by law."
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention only applies to disputes over "rights and obligations" which
can be said, at least on arguable grounds, to be recognized under
domestic law. The provision does not in itself guarantee any
particular content of the substantive rights recognized in the laws of
the Contracting States (see Eur. Court H.R., James and Others judgment
of 21 February 1986, Series A no. 98, p. 46, para. 81 and Lithgow and
Others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).
The dispute which gives a right to a determination by a court must be
"genuine and of a serious nature" (see Eur. Court H.R., Benthem
judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). The
dispute may relate not only to the actual existence of a right but also
to its scope or the manner in which it may be exercised, and it may
concern both questions of fact and questions of law (see Eur. Court
H.R., van Marle and Others judgment of 26 June 1986, Series A no. 101,
p. 11, para. 32; Karni v. Sweden, Comm. Report 15.12.88, D.R. 62 pp.
90, para. 86).
The Commission notes that the applicants applied to the Committee
of the Federal Engineer Chamber's Welfare Institutions for an exemption
from their liability to contribute to its Pension Fund. They
acknowledged in their applications that they did not meet the
conditions for such an exemption according to Section 29 of the
Engineer Chamber Act. They considered that the lack of a more general
provision allowing for exemption was unconstitutional.
The Commission finds that in the present case there was no
dispute on facts, as the applicants admittedly did not fulfil the
conditions for exemption from the liability to contribute to the
Pension Fund. Furthermore, there was no dispute regarding the scope
or manner of a "right" or "obligation". The applicants merely
challenged the law in force. The Commission finds that the applicants
could not on arguable grounds claim a right of exemption from the
liability to contribute to the Chamber's Pension Fund. The dispute
thus did not concern a right within the meaning of Article 6 para. 1
(Art. 6-1) and the applicants therefore cannot rely on that provision
in this instance.
This part of the application must accordingly be dismissed as
incompatible ratione materiae with the provisions of the Convention
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 First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
APPENDIX I
List of applicants
Group A
1. Dieter Allesch
born 1943, residing in Vienna
2. Jakob Khayat
born 1955, residing in Vienna
3. Günther Marschall
born 1949, residing in Salzburg
4. Gerhard Schweighofer
born in 1948, residing in Salzburg
5. Martin Treberspurg
born in 1953, residing in Vienna
Group B
6. Gunther Breckner
born in 1951, residing in Vienna
7. Walter Buck
born in 1943, residing in Vienna
8. Georg Michael Feferle
born in 1950, residing in Vienna
9. Thomas Freund
born in 1946, residing in Weitra
10. Thomas Gellert
born in 1951, residing in Vienna
11. Lothar Jell-Paradeiser
Born in 1947, residing in Vienna
12. Günther Lautner
born in 1946, residing in Vienna
13. Heinz Lutter
born in 1945, residing in Vienna
14. Michael Mann
born in 1949, residing in Vienna
15. Peter Mikolasch
born in 1950, residing in Vienna
16. Peter Mlczoch
born in 1949, residing in Vienna
17. Joerg Nairz
born in 1951, residing in Vienna
18. Horst Klaus Neu
born in 1944, residing Vienna
19. Alfons Oberhofer
born in 1948, residing in Vienna
20. Wolfgang Oberlik
born in 1947, residing in Vienna
21. Werner Peters
born in 1949, residing in Vienna
22. Herbert Pohl
born in 1946, residing in Vienna
23. Peter Preiss
born in 1952, residing in Kilb
24. Monika Putz
born in 1953, residing in Stixneusiedl
25. Peter Raab
born in 1952, resaiding in Vienna
26. Peter Scheifinger
born in 1948, residing in Viennna
27. Günther Schmidt
born in 1947, residing in Vienna
28. Eric Steiner
born 1945, residing in Vienna
29. Rudolf Szedenik
born 1950, residing in Großwarasdorf
30. Emmanuel Venetos
born 1953, residing in Vienna
31. Johann Winter
born 1949, residing in Vienna
Group C
32. Thomas Gruber
born in 1953, residing in Salzburg
33. Bernd Hala
born in 1944, residing in Vienna
34. Dieter Hofbauer
born in 1949, residing in Vienna
35. Christian Hundt
born 1948, residing in Salzburg
36. Georg Schönfeld
born 1950, residing in Vienna
Full & Egal Universal Law Academy