AS TO THE ADMISSIBILITY OF
Application No. 25044/94
by Josef W. DORNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 23 June 1994 by
Josef W. DORNER against Germany and registered on 31 August 1994 under
file No. 25044/94;
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 applicant is an Austrian citizen, born in 1926 and living in
Zurich.
The facts as submitted by the applicant may be summarised as
follows:
Since 1 March 1991 the applicant has been receiving a partial
Austrian pension in the amount of 1.984,40 AS.
This pension was calculated by the Austrian social security
authorities (Pensionsversicherungsanstalt) on the basis of 149 months
of contributions paid in Austria and 475 months of contributions paid
in other states, i.e. a total of 624 months.
On 23 September 1992 the Vienna Social Court (Sozialgericht)
rejected the applicant's claim for a higher pension allegedly resulting
from the taking into account contributions paid by the applicant
between 1947 and 1950.
The court found that Sections 238 and 239 of the Austrian Social
Security Act (ASVG) expressly provided that the period in question was
not to be taken into account. The court added that the legislative
text was clear and left no room for another interpretation.
This judgment was confirmed by the Vienna Court of Appeal
(Oberlandesgericht) on 10 September 1993. This court explained that
the purpose of the provisions in Sections 238 and 239 was to protect
the persons ensured by the social security scheme. In the period in
question the maximum limit of contribution had not been adapted to the
then existing conditions of wages and prices so that there existed an
under-insurance. Even if the applicant's income was, as he claimed,
higher than the average wages at the relevant time the statutory
maximum contribution limit was however so low that taking into account
the period in question would inevitably have a negative effect on the
calculation of the applicant's total pension right. The court
concluded that in these circumstances there was no reason to grant the
applicant's request to submit the question to the Constitutional Court
(Verfassungsgerichtshof) whether or not the regulation complained of
by the applicant in question was compatible with constitutional law.
COMPLAINTS
The applicant argues that the application of the regulation in
question causes him the loss of his pension rights in the amount of 28%
and considers that this violates his right to life as guaranteed by
Article 2 of the Convention.
THE LAW
The applicant complains of the amount of his partial Austrian
pension which he considers to be too low.
While the applicant has invoked Article 2 (Art. 2) of the
Convention the Commission considers that this complaint falls rather
under Article 1 of Protocol No. 1 (P1-1) which guarantees the right to
the peaceful enjoyment of possessions. According to the Commission's
case-law this provision guarantees to persons who have paid
contributions to a social insurance system the right to derive benefit
from the system. However, it cannot be interpreted as an entitlement
to a pension of a particular amount.
The Commission found in this respect:
"The operation of a social security system is essentially different
from the management of a private life insurance company. Because of
its public importance, the social security system must take account of
political considerations, in particular those of financial policy. It
is conceivable, for instance, that a deflationary trend may oblige the
state to reduce the nominal amount of pensions. Fluctuations of this
kind have nothing to do with the guarantee of ownership as a human
right." (cf. No. 5849/72, Müller v. Austria, Dec. 1.1.95, D.R. 3, p.
25 [32]).
While it is true, that in some cases, a substantial reduction of
the pension could be regarded as affecting the very substance of the
right to retain the benefit of the old age insurance system, it follows
from the decisions of the Austrian courts in the present case that the
applicant's pension was correctly calculated in accordance with the
existing Austrian law. This means that the applicant never had a right
to a higher pension. The maximum contribution levels between 1 January
1947 and 31 December 1950 were according to the appellate court so low
that the taking into account of the period in question would in general
have a negative effect on the calculation of pension rights even if the
applicant's wages did at that time exceed the average wages.
It can in these circumstances not be found that the amount of the
applicant's partial Austrian pension was fixed in an arbitrary manner.
It follows that there is no appearance of a violation of Article 1 of
Protocol No. 1 (P1-1) and the application therefore has to be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy