AS TO THE ADMISSIBILITY OF
Application No. 21812/93
by Werner BRANDNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, 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 25 April 1993 by
W. BRANDNER against Austria and registered on 7 May 1993 under file No.
21812/93;
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 applicant is an Austrian citizen, born in 1921 and living in
Ybbsitz.
It follows from the applicant's statements and the documents
submitted that on 1 November 1986 he qualified for an old age pension
as he had reached the age of 65.
As the applicant decided to continue working as a tax accountant
(Steuerberater) he was consequently obliged to continue to pay social
security contributions as of 11 November 1986.
On 19 November 1990 the applicant wrote to his social security
office complaining of his continued obligation to pay into the pension
fund although these contributions would in no way influence his own
right to an old age pension which had already come into effect. He
requested a decision which he could, if necessary, appeal against.
On 2 January 1991 the Social Insurance Board for Trade
(Sozialversicherungsanstalt der gewerblichen Wirtschaft) decided that
according to the applicable domestic law he was automatically a member
of the social insurance system and therefore had to pay contributions
to the old age pension fund. The fact that he already received an old
age pension was not under the relevant law recognised as a circumstance
justifying an exemption from the obligation to pay contributions.
The applicant then lodged an appeal which was rejected on
30 April 1991 by the Office of the Regional Government of Lower Austria
(Amt der Niederösterreichischen Landesregierung). Referring to the
Administrative Court's (Verwaltungsgerichtshof) jurisprudence the
office stated that there was no doubt that the applicant's obligation
to continue to pay social security contributions after his retirement
was lawful. Insofar as he had alleged a discriminatory treatment in
comparison to civil servants it is pointed out that retired civil
servants likewise have to pay social security contributions if they
exercise a remunerated activity in respect of which membership in a
social insurance fund is obligatory.
A further appeal was rejected by the Federal Ministry for Labour
and Social Affairs on 16 October 1991. It was stated in the decision
that the social security system is based on the principle that all
members of a profession form an association of social solidarity and
their common interests prevail over special interests of the
individual. It also referred to the jurisprudence of the
Constitutional Court (Verfassungsgerichtshof) according to which it was
of no relevance that due to particular circumstances an individual
member of a profession did not necessitate further insurance cover.
He was nevertheless obliged to pay social security contributions.
The applicant then lodged a constitutional complaint which was
rejected by the Constitutional Court on 25 February 1992. The court
referred to its constant jurisprudence according to which it did not
violate any constitutional rights that retired persons had to continue
to pay social security contributions also with regard to the old age
pension funds if they continued to work in a profession for which
membership in the social security insurance was obligatory.
The applicant also brought his case before the Administrative
Court (Verwaltungsgerichtshof) which rejected it on 29 September 1992.
The court stated that it was not competent to deal with the applicant's
complaint as he only alleged a violation of constitutional rights.
COMPLAINTS
The applicant considers that his obligation to continue to pay
social security contributions towards a pension fund, although he is
already receiving an old age pension which will not be increased on
account of his continued contributions, violates his right to the
peaceful enjoyment of possessions as guaranteed by Article 1 of
Protocol No. 1 to the Convention.
THE LAW
The applicant invokes the right to the peaceful enjoyment of
possessions (Article 1 of Protocol No. 1 (P1-1)) which he considers to
be violated because of his obligation to pay social security
contributions for a pension scheme although he is already receiving a
pension and his present contributions will not have any effect on the
amount of this pension.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"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.
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 contributions
or penalties."
The applicant's obligation to pay social security contributions
falls within the scope of the second paragraph of Article 1 of Protocol
No. 1 (P1-1). This does not however bring the matter wholly outside the
supervision of the Commission. It must be examined whether the
contribution of which the applicant complains is disproportionate to
the legitimate aim it pursues (cf. No. 9664/82, Dec. 1.3.83,
unpublished).
In this respect the Commission notes that, as was pointed out by
the domestic authorities, members of a profession form an association
of social solidarity and their common interests prevail over special
interests of the individual. As the applicant continues to work in his
profession, he is therefore under the applicable domestic law obliged
to pay the contribution in question and there is nothing to show that
there are any particular circumstances rendering this obligation to be
an excessive and arbitrary burden.
Insofar as the applicant also seems to complain that his present
contributions do no longer have any effect on the amount of the pension
he is already receiving, the Commission observes that no right to a
pension in a particular amount can be derived from Article 1 of
Protocol No. 1 (P1-1). The social security systems have to take into
account political considerations and the Commission has repeatedly held
that pension adjustments, if effected in accordance with the applicable
domestic law, did not affect property rights (e.g. No. 5849/72, Müller
v. Austria, Comm. Report 1.10.75, D.R. 3, pp. 25 (31); No. 21519/93,
Dec. 30.6.93, unpublished).
In the present case, the applicant has not complained about the
amount of pension he is actually receiving and it can in the
circumstances of his case not be found that, by not increasing the
pension in view of the contributions which he is paying subsequent to
having qualified for the payment of his present pension, the Austrian
authorities deprive him of a right which is protected under Article 1
of Protocol No. 1 (P1-1).
It follows that the application has to be rejected in accordance
with Article 27 para. 2 (Art. 27-2) of the Convention as being
manifestly ill-founded.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy