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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)

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SCHOTTENBERGER v. AUSTRIA

SCHOTTENBERGER v. AUSTRIA

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