AS TO THE ADMISSIBILITY OF
Application No. 20223/92
by Karl SCHOTTENBERGER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1995, 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
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 29 April 1992 by
Karl Schottenberger against Austria and registered on 24 June 1992
under file No. 20223/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
22 April 1994 and the observations in reply submitted by the
applicant on 17 June 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of this case, as they have been submitted by the
parties, may be summarised as follows:
The applicant is an Austrian citizen, born in 1920, and residing
in Salzburg. In the proceedings before the Commission, he is
represented by Mr. A. Morawa.
A. Particular circumstances of the case
On 9 September 1983 the applicant, represented by counsel,
requested the Salzburg Regional Insurance Board (Salzburger
Gebietskrankenkasse) to declare that his occupation as a tourist-guide
for a travel agency between 1956 and 1983 be qualified as employment
requiring affiliation to the Social Security and Unemployment Insurance
Scheme.
On 29 February 1984 the Salzburg Regional Insurance Board, having
heard the applicant on 31 October 1983, decided that both the Social
Security and the Unemployment Insurance Scheme were applicable to the
applicant's former professional activity. The Board held that the
contract between the applicant and the travel agency could be
assimilated to a contract of employment, as he was bound by general
instructions and regularly paid. In this regard, it referred to the
relevant provisions of the Social Security Scheme (Allgemeines
Sozialversicherungsgesetz) and the Unemployment Insurance Scheme
(Arbeitslosenversicherungsgesetz) (see below, Relevant domestic law).
On 20 March 1984 the travel agency lodged an appeal (Einspruch)
against this decision with the Regional Governor of Salzburg
(Landeshauptmann). The Office of the Salzburg Regional Government (Amt
der Salzburger Landesregierung) listed the case for a hearing on
30 November 1984.
On 10 December 1984 the Regional Governor of Salzburg, following
the hearing on 30 November 1984, confirmed the decision of the Salzburg
Regional Insurance Board.
On 19 June 1985, the applicant reached the relevant age for
entitlement to an old-age pension.
On 27 November 1985 the Federal Ministry for Social Affairs
dismissed the further appeal of the travel agency.
On 28 January 1986, the travel agency lodged an appeal with the
Administrative Court, which was received by the Court on 10 February
1986, and requested that the execution of the decision be suspended
during the proceedings.
On 24 March 1986 the Administrative Court dismissed the
aforementioned request.
On 23 April 1986 the Federal Ministry for Social Affairs provided
the Administrative Court with the files. The travel agency, the
Regional Insurance Board and the applicant submitted their observations
on 25, 28 and 29 April 1986 respectively. On 13 November 1986 the
travel agency submitted documents relating to proceedings before the
Salzburg Labour Court between itself and the applicant concerning the
applicant's employment. The travel agency further submitted the
decision of the Appeal Court in these proceedings on 28 January 1987
and the Supreme Court's decision on 25 February 1988.
On 10 November 1988 the Administrative Court quashed the decision
of the Federal Ministry for Social Affairs. It found that the
administrative authorities had not sufficiently assessed all relevant
evidence and not discussed all the travel agency's arguments.
On 16 January 1989 the Federal Ministry for Social Affairs,
having received the Administrative Court's judgment on 9 December 1988,
ordered the Office of the Salzburg Regional Government to take
additional evidence, including the hearing of several witnesses.
On 13 March 1989 a new hearing relating to the taking of evidence
took place before the Salzburg Regional Government. The applicant and
one witness were heard and the parties were consequently requested to
comment on the results of these new proceedings.
On 13 April 1989 the Salzburg Regional Government informed the
Federal Ministry for Social Affairs that it had not been possible to
hear all the witnesses. However, some of them had submitted written
statements.
On 23 June 1989 the applicant filed observations upon the
evidence proceedings.
On 3 May 1990 the applicant lodged a complaint with the
Administrative Court about the administration's failure to take a
decision.
On 15 May 1990 the Administrative Court requested the Federal
Ministry for Social Affairs to take a decision within three months or
to justify why a decision could not be taken.
On 26 June 1990 the Federal Ministry for Social Affairs upheld
the appeal of the travel agency.
On 25 September 1990 the complaint proceedings regarding alleged
inactivity were therefore discontinued.
Both the applicant and the Regional Insurance Board of Salzburg
lodged appeals against the decision of 26 June 1990 with the
Administrative Court.
On 17 September 1991 the Administrative Court dismissed the
appeal. It found that the applicant was not to be considered as an
employee but that the contractual relation to the travel agency was
more of an independent professional nature.
The judgment was served upon the applicant on 12 November 1991.
B. Relevant domestic law
According to Section 4 para. 1 (1) of the Social Security Scheme
(Allgemeines Sozialversicherungsgesetz) which inter alia governs the
payment of pensions and Section 1 para. 1 (1) of the Unemployment
Insurance Scheme (Arbeitslosenversicherungsgesetz) only employees are
affiliated to the respective Schemes.
Section 4 para. 2 of the Social Security Scheme defines employees
as persons working for remuneration in a personally and economically
subordinate position (Verhältnis persönlicher und wirtschaftlicher
Abhängigkeit); if these characteristics prevail in an independent
professional contractual relation, it is also considered as employment.
COMPLAINTS
The applicant complains that the Austrian authorities failed to
determine the applicability of the Social Security and Unemployment
Insurance Scheme to his case within a reasonable time as required by
Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 April 1992 and registered
on 24 June 1992.
On 12 January 1994 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 22 April 1994, after an extension of the time-limit, the
Government submitted their observations. The observations in reply by
the applicant were submitted on 17 June 1994.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of proceedings concerning the applicability
of the Social Security and Unemployment Insurance Scheme to his case.
Article 6 para. 1 (Art. 6-1), so far as relevant, reads as
follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within reasonable time ..."
The Government submit that Article 6 (Art. 6) is not applicable
to the proceedings at issue, as they were not directly decisive for the
applicant's civil rights. They determined whether the applicant had
been an employee within the meaning of S. 4 of the Social Security
Scheme. However, compulsory insurance, which depends on this question,
does not in all cases lead to pension benefits or to an increase in
such benefits. Moreover, the proceedings fell in the domain of public
law. The social insurance institutions conducting them are acting as
administrative authorities and the social insurance scheme is financed
not only by the employer's and the employee's contributions but also
by contributions of the Federal Government. As regards the compliance
with Article 6 (Art. 6), the Government submit that the proceedings
were extremely complex in fact and in law. The question whether
someone has to be considered as an employee within the meaning of S. 4
of the Social Security Scheme, depends on a whole set of criteria,
which necessitated extensive taking of evidence and there was no
jurisprudence of the Administrative Court on a comparable case. Three
different administrative authorities and the Administrative Court had
jurisdiction to determine the issue. No unreasonable delays were
caused by the competent authorities.
The applicant, referring to the case-law of the Convention
organs, submits that Article 6 (Art. 6) is applicable to the social
security proceedings at issue, which were directly decisive for his and
his employer's obligation to pay contributions, inter alia, to the
pension and to the unemployment scheme and for his claim to pension
benefits, which were due as of 19 June 1985, when he reached the
relevant age for entitlement to an old-age pension. Further, the
applicant submits that an overall duration of more than eight years is
unreasonable, in particular with a view to the fact that his right to
an old-age pension was at stake.
After an examination of the application in the light of the
parties' submissions, the Commission considers that it raises questions
of fact and law which can only be determined by an examination of the
merits. It follows that the application cannot be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
inadmissibility have been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy