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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20223/92

Karl Schottenberger

against

Austria

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-6) . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 7-29). . . . . . . . . . . . . . . . . . . . . .2

A. The particular circumstances of the case

(paras. 7-27) . . . . . . . . . . . . . . . . . . .2

B. Relevant domestic law

(paras. 28-29). . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 30-46) . . . . . . . . . . . . . . . . . . . . .4

A. Complaint declared admissible

(para. 30). . . . . . . . . . . . . . . . . . . . .4

B. Point at issue

(para. 31). . . . . . . . . . . . . . . . . . . . .4

C. Article 6 para. 1 of the Convention

(paras. 32-45). . . . . . . . . . . . . . . . . . .4

1. The applicability of Article 6 para. 1

of the Convention

(paras. 33-38). . . . . . . . . . . . . . . . 4

2. Compliance with Article 6 para. 1

of the Convention

(paras. 39-45). . . . . . . . . . . . . . . . 5

CONCLUSION

(para. 46). . . . . . . . . . . . . . . . . . . . .7

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . 8

I. INTRODUCTION

1. The present Report concerns Application No. 20223/92 by

Karl Schottenberger against Austria, introduced on 29 April 1992 and

registered on 24 June 1992.

2. The applicant, born in 1920, is an Austrian national and resident

in Salzburg. He was a tourist guide by profession and is now a

pensioner. Before the Commission he is represented by Mr. A. Morawa.

The Government of Austria are represented by their Agent,

Ambassador F. Cede, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

3. The application was communicated to the respondent Government on

12 January 1994. Following an exchange of memorials, the applicant's

complaint about the length of proceedings relating to his affiliation

to the Social Security and the Unemployment Insurance Scheme was

declared admissible on 17 January 1995. The decision on admissibility

is appended to this report.

4. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 18 October 1995 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

5. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the Austrian

Government.

6. The text of this Report is now transmitted to the Committee of

Ministers of the Council of Europe in accordance with Article 31

para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

7. 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.

8. 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).

9. 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.

10. 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.

11. On 19 June 1985, the applicant reached the relevant age for

entitlement to an old-age pension.

12. On 27 November 1985 the Federal Ministry for Social Affairs

dismissed the further appeal of the travel agency.

13. 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.

14. On 24 March 1986 the Administrative Court dismissed the

aforementioned request.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. On 23 June 1989 the applicant filed observations upon the

evidence proceedings.

21. On 3 May 1990 the applicant lodged a complaint with the

Administrative Court about the administration's failure to take a

decision.

22. 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.

23. On 26 June 1990 the Federal Ministry for Social Affairs upheld

the appeal of the travel agency.

24. On 25 September 1990 the complaint proceedings regarding alleged

inactivity were therefore discontinued.

25. Both the applicant and the Regional Insurance Board of Salzburg

lodged appeals against the decision of 26 June 1990 with the

Administrative Court.

26. 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.

27. The judgment was served upon the applicant on 12 November 1991.

B. Relevant domestic law

28. 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.

29. 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

30. The Commission has declared admissible the applicant's complaint

that the Austrian authorities failed to determine the applicability of

the Social Security and Unemployment Insurance Scheme to his case

within a reasonable time.

B. Point at issue

31. Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

32. Article 6 para. 1 (Art. 6-1) 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

...".

1. The applicability of Article 6 para. 1 (Art. 6-1) of the

Convention

33. 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

Social Security and to the Unemployment Insurance 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.

34. 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.

35. The Commission finds that the proceedings at issue concerned a

dispute between the applicant and the social insurance authorities

relating to the applicant's affiliation inter alia to the Social

Security and to the Unemployment Insurance Scheme. The outcome of this

dispute was directly decisive for his rights and obligations, namely

for his entitlement to a pension and for his obligation to pay the

employee's contributions to the said schemes (Eur. Court H.R., Zander

judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22).

36. As regards the question whether the rights and obligations at

issue were "civil" in nature, the Commission recalls that Article 6

para. 1 (Art. 6-1) of the Convention was previously found to apply in

the field of social insurance (see Eur. Court H.R., Feldbrugge judgment

of 29 May 1986, Series A no. 99, pp. 12-16, paras. 26-40; Deumeland

judgment of 29 May 1986, Series A no. 100, pp. 22-25, paras. 60-74;

Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, p. 17,

para. 46). All these cases concerned entitlement to social security

benefits. While in the Feldbrugge and Deumeland cases the Court

examined whether the public-law or private-law features of the

respective social insurance system predominated, in the case of

Schuler-Zgraggen it took the view that today Article 6 (Art. 6) applies

as a general rule in the field of social insurance. In a more recent

case, concerning employers' contributions to the social insurance

system, the Court again applied the method of analysis adopted in the

Feldbrugge case (Eur. Court H.R., Schouten and Meldrum judgment of

9 December 1994, to be published in Series A no. 304, paras. 49-60).

37. The present case concerns both aspects of social insurance,

namely the applicant's entitlement to pension benefits and his

obligation to pay the employee's contributions inter alia to the Social

Security Scheme. It is, therefore, not clear which approach has to be

taken. However, the Commission finds that the applicant's obligation

to pay the employee's contributions to the social insurance system was

only a precondition to his entitlement to pension benefits, which

appears to be the primary issue of the case. In this respect, the same

arguments, which were considered decisive in the case of Schuler-

Zgraggen, can be adduced. Despite the public-law features pointed out

by the Government, the contested proceedings did not only affect the

applicant in his relations with the administrative authorities as such

but concerned his means of subsistence after retirement. The applicant

was claiming an individual, economic right flowing from specific rules

laid down in Austrian law (Schuler-Zgraggen judgment, loc. cit.).

38. For these reasons, the Commission finds that Article 6 para. 1

(Art. 6-1) of the Convention is applicable to the proceedings at issue.

2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

39. As regards the length of the proceedings, 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. According to him, the proceedings were of no particular

complexity. Although extensive evidence had to be taken, most of it

consisted in documentary evidence. Nor was the legal point at issue

very complex, as the criteria for assessing whether someone was an

employee within the meaning of the Social Security Scheme had been

long-established in the Administrative Court's jurisprudence. Further,

the applicant submits that considerable delays are attributable to the

Austrian authorities.

40. 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, depended on a whole set of criteria, which required extensive

taking of evidence and there was no jurisprudence of the Administrative

Court on a comparable case. Moreover, three different administrative

authorities and the Administrative Court had jurisdiction to determine

the issue. No unreasonable delays were caused by the competent

authorities. In particular, when the Administrative Court was seized

in February 1986, proceedings between the applicant and his employer

were pending before the Labour Courts. The Administrative Court

received the Supreme Court's judgment in the above proceedings in

February 1988 and then gave its own judgment in November 1988. In the

renewed proceedings before the Federal Ministry for Social Affairs,

which lasted from December 1988 until the end of June 1990, new

evidence had to be taken. Further, the file could not be dealt with

between August 1989 and June 1990 due to staff shortage. Finally, the

applicant himself contributed to the length of the proceedings by

repeatedly submitting new evidence and by using all remedies available.

41. The Commission finds that the administrative proceedings have to

be considered when calculating the relevant period (Eur. Court H.R.,

König judgment of 28 June 1978, Series A no. 27, p. 33, para. 98).

Therefore, the proceedings lasted from 20 March 1984 until

12 November 1991, that is for seven years and about eight months.

42. 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

(Eur. Court H.R., Cesarini judgment of 12 October 1992, Series A

no. 245-B, p. 26, para. 17).

43. 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. Although this question related

to the whole period of the applicant's employment with the travel

agency, which lasted from 1956 to 1983, it does not appear from the

parties' submissions that documentary evidence was difficult to obtain

due to the lapse of time or that large numbers of witnesses had to be

heard. No particular delays are attributable to the applicant.

44. As regards the conduct of the authorities, the Commission notes

the Government's argument that the case had to be dealt with by three

administrative instances and the Administrative Court. However, the

Commission finds that considerable delays occurred at several stages.

The first set of proceedings before the Administrative Court lasted

from February 1986 until November 1988, that is for two years and nine

months. The Government failed to show why waiting for the outcome of

proceedings between the applicant and the travel agency before the

Labour Courts was in the interest of expediency. As regards the renewed

proceedings before the Federal Ministry for Social Affairs, the

Government submit that the file was not dealt with from August 1989

until June 1990 due to staff shortage. This delay is also attributable

to the Government, as it is for the Contracting States to organise

their legal systems in a way that their authorities can meet the

requirements of Article 6 (Art. 6) (Eur. Court H.R., Vocaturo judgment

of 24 May 1991, Series A no. 206, p. 32, para. 17). Finally, no

explanation has been given for the delay between the end of June 1990,

when the Federal Ministry gave its decision and the second decision of

the Administrative Court, which was given in September 1991. These

delays appear particularly serious in view of the fact that the

applicant's claim to pension benefits depended on the outcome of the

proceedings.

45. For these reasons, the Commission finds that a period of eight

years and two months cannot be regarded as "reasonable" for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

46. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 of the Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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SCHOTTENBERGER v. AUSTRIA

SCHOTTENBERGER v. AUSTRIA

LEXI