EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 28634/95

Walter Spannring

against

Austria

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

28634/95 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-27)              3

A. The particular circumstances of the case

(paras. 16-25)              3

B. Relevant domestic law

(paras. 26-27)              3

III. OPINION OF THE COMMISSION

(paras. 28-40)              5

A. Complaint declared admissible

(para. 28) 5

B. Point at issue

(para. 29) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 30-39)              5

CONCLUSION

(para. 40) 6

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              7

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1926 and resident in Schladming . He is represented before the Commission by Mr A. Morawa , a lawyer residing in Washington D.C.

3. The application is directed against Austria. The respondent Government were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns the length of the proceedings relating to the applicant's request for a declaration that his occupation as a tourist-guide required affiliation to the Social Security and Unemployment Insurance Scheme. The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 15 September 1995 and registered on 21 September 1995.

6. On 12 April 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 22 July 1996, after an extension of the time-limit fixed for this purpose. The applicant replied on 25 September 1996.

8. On 10 September 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 24 September 1997 and they were invited to submit such further information or observations on the merits as they wished.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM N. BRATZA, Acting President

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 17 December 1984 the applicant applied to the Styria Regional Insurance Board ( Gebietskrankenkasse ) for a declaration that his occupation as a tourist-guide required affiliation to the Social Security and Unemployment Insurance Scheme ( Kranken -, Unfall -, Pensions- und Arbeitslosenversicherung ).

17. On 21 April 1986 the Insurance Board, following various enquiries , granted the applicant's request.

18. On 23 May 1986 the applicant's employer lodged an appeal with the Styria Provincial Governor ( Landeshauptmann ). Pending the ensuing proceedings, the applicant received pension payments on a provisional basis.

19. On 22 March 1988 the Provincial Governor dismissed the employer's appeal.

20. On 13 April 1988 the employer appealed to the Federal Ministry for Labour and Social Affairs ( Bundesministerium für Arbeit und Soziales ) which on 26 June 1990 decided to quash the Provincial Governor's decision.

21. On 6 August 1990 the applicant appealed against this decision to the Administrative Court ( Verwaltungsgerichtshof ). On 22 October 1991 the Administrative Court, on procedural grounds, quashed the decision of the Federal Ministry for Labour and Social Affairs of 26 June 1990. 

22. On 9 September 1992 the Federal Ministry for Labour and Social Affairs, in the resumed appeal proceedings, found that the applicant's occupation as a tourist-guide had not required affiliation to the Social Security and Unemployment Insurance Scheme.

23. On 20 October 1992 the applicant appealed to the Constitutional Court ( Verfassungsgerichtshof ).

24. On 15 June 1993 the Constitutional Court refused to entertain the applicant's complaint that his case had not been decided by a tribunal, and in proceedings in conformity with Article 6 para. 1 of the Convention, and referred the applicant's complaint to the Administrative Court.

25. On 28 October 1997 the Administrative Court dismissed the applicant's appeal.  It was served upon the applicant's counsel on 11 November 1997.

B. Relevant domestic law

26. 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.

27. 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.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission had declared admissible the applicant's complaint about the length of the proceedings relating to his request for a declaration that his occupation as a tourist-guide required affiliation to the Social Security and Unemployment Insurance Scheme.

B. Point at issue

29. Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

30. Article 6 para. 1 of the Convention, so far as relevant, provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ...".

31. The proceedings in question concerned the applicant's affiliation inter alia to the Social Security and the Unemployment Insurance Scheme.  The purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 of the Convention (cf. Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2179/2180, para. 53; see also No. 20223/92, Comm. Report 18.10.95, endorsed by the Committee of Ministers in its Interim Resolution CM/Del/Dec(96)567 of 25 June 1996).  The Government do not dispute the applicability of Article 6.

32. As regards the period to be taken into account in the application of Article 6, the Commission finds that it started to run on 23 May 1986 when the applicant's employer lodged an appeal with the Provincial Governor.  In this respect, the Commission recalls that obligatory administrative proceedings which precede the court proceedings have to be considered when calculating the relevant period (cf., mutatis mutandis , Eur. Court HR, König v. Germany judgment of 28 June 1978, Series A no. 27, p. 33, para. 98; Duclos v. France judgment, op. cit., p. 2180, para. 54; No. 20223/92, Comm. Report, op. cit.). Therefore, the proceedings lasted from 23 May 1986 until 11 November 1997, that is for approximately eleven and a half years.

33. The applicant submits that the length of these proceedings was unreasonable, in particular with a view to the fact that his right to an old-age pension was at stake. According to him, the proceedings were of no particular complexity. Further, the applicant submits that considerable delays are attributable to the Austrian authorities.

34. 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 in a comparable case.  No unreasonable delays were caused by the competent authorities.  In particular, as from 17 September 1991, when the Administrative Court rendered a judgment on the question of mandatory affiliation in a similar case, all further decisions had to take into account the legal interpretation used in that ruling.  Finally, in their view, the applicant himself contributed to the length of the proceedings.

35. The Commission recalls that the reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the Court's case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment (cf. Eur. Court HR, Duclos v. France judgment, op. cit., para. 55).

36. The Commission finds that the case was not particularly complex in law or fact.  There was only one particular legal issue to be resolved, i.e. whether the applicant had been an employee within the meaning of the Social Security Scheme.

37. No particular delays are attributable to the applicant.  With regard to the Government's argument that he failed to take steps with a view to accelerating the proceedings before the administrative authorities, namely an application under S. 73 of the General Administrative Procedure Act or a complaint with the Administrative Court, pursuant to Articles 130 para. 1 (b) and 132 of the Federal Constitution ( Bundesverfassungs-Gesetz ), the Commission observes that the applicant's complaint relates to a large extent to delays in the proceedings before the Administrative Court itself.

38. As regards the conduct of the authorities, the Commission notes that, in the first set of proceedings, the administrative appeal proceedings before the Provincial Governor and the Federal Ministry for Labour and Social Affairs lasted one year and nine months and two years and one month, respectively, although the Insurance Board had investigated the applicant's case and rendered a decision within one year and four months.  The ensuing proceedings before the Administrative Court lasted from June 1990 until October 1991, i.e. for one year and nearly four months, and resulted in the quashing of the administrative decision for procedural reasons.  The resumed proceedings before the Federal Ministry for Labour and Social Affairs took less than one year. The Constitutional Court proceedings terminated in less than eight months.  The second set of proceedings before the Administrative Court lasted from June 1993 until November 1997 although the same Court had rendered a decision in a similar case already in 1991.  The Government have not advanced any explanation for such a serious delay in proceedings which, at that time, had been pending for seven years already.

39. The Commission, having regard to all circumstances and considering in particular the delay of the second set of proceedings before the Administrative Court, finds that the overall length of the proceedings, which have been pending for approximately eleven and a half years, has exceeded a "reasonable time" within the meaning of Article 6 para. 1 of the Convention.

CONCLUSION

40. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

M.F. BUQUICCHIO      N. BRATZA

   Secretary   Acting President

       to the First Chamber of the First Chamber