AS TO THE ADMISSIBILITY OF
Application No. 14128/88
by R.W.
against Austria
The European Commission of Human rights sitting in private on
12 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 1 July 1988 by
R.W. against Austria and registered on 22 August 1988 under file
No. 14128/88;
Having regard to the report provided for in Rule 40 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
The applicant was born in 1930 in Sweden. In 1956 she acquired
the Austrian nationality by marriage in addition to the Swedish and is
now living in Salzburg. She is represented by Mr. G. Gressel and
Partners, lawyers in Salzburg.
The applicant complains of the refusal by the Austrian social
security authorities (Pensionsversicherungsanstalt der Angestellten)
to recognise the time she spent in high school and university in Sweden
as qualifying period for the purpose of the calculation of her pension
under the Austrian social security system. Her action against this
decision was dismissed by the Social Security Arbitration Court
(Schiedsgericht der Sozialversicherung) on 11 July 1986. The Supreme
Court (Oberster Gerichtshof) confirmed this judgment on 20 October 1987
(served on 22 December 1987) insofar as the period spent in high school
and university was in question. The Supreme Court stated that the
qualifying period had to be calculated by adding together the period
during which the applicant was affiliated to the Austrian social
security system and the time spent in Sweden which was considered as
a qualifying period under Swedish law in accordance with the Agreement
between Austria and Sweden relating to social security matters
(AbkSozSiSchweden). Article 19 (2) of the Agreement provided that
qualifying periods were those during which a person had his/her normal
place of residence in Sweden and had to pay income tax there.
Therefore the time during which the applicant studied in Sweden could
not be taken into account. Furthermore, the applicant could not rely
on the Austrian Social Security Act (ASVG) as the relevant provisions
stipulated that only studies in domestic schools counted as a
"substitute period".
The applicant invokes Article 1 of Protocol No. 1 in conjunction
with Article 14 of the convention. She points out that if her years
of studying were taken into account, she would qualify earlier for an
old-age pension and the amount of the pension would be higher. She
submits that the regulation in Sections 227 et seq. of the Austrian
Social Security Act serves the purpose of preventing that persons who
underwent extended educational training thereby suffer a loss of time
qualifying for insurance benefits. The non-recognition of her studies
in Sweden is in her submission objectively unjustified and therefore
discriminating.
However, Article 14 does not forbid every difference in treatment
in the exercise of the rights and freedoms recognised in the Convention
and its additional Protocols. The competent national authorities are
frequently confronted with situations and problems which, on account
of differences inherent therein, call for different legal solutions.
There does not exist a uniform European social security system and
therefore the transfer of social security rights or expectations from
one State to another is usually regulated in bilateral treaties between
the states are free to determine the extent and the conditions for the
mutual recognition of social security rights.
The applicant's social security rights were determined on the
basis of the Treaty existing between Austria and Sweden on these
matters. This Treaty refers to Swedish law insofar as pension rights
or expectations acquired in Sweden are concerned. The applicant has
not alleged that the time she spend studying in Sweden would count for
the purpose of the calculation of her pension under Swedish law.
Therefore, even assuming that the right to a social security
pension is as such protected by Article 1 of the First Protocol, there
is no appearance of a possible discrimination against the applicant in
the enjoyment of this right.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President to the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy