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DORNER v. AUSTRIA

Doc ref: 25044/94 • ECHR ID: 001-2907

Document date: May 15, 1996

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Cited paragraphs: 0
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DORNER v. AUSTRIA

Doc ref: 25044/94 • ECHR ID: 001-2907

Document date: May 15, 1996

Cited paragraphs only

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)

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