Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21812/93

by Werner BRANDNER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 25 April 1993 by

W. BRANDNER against Austria and registered on 7 May 1993 under file No.

21812/93;

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 1921 and living in

Ybbsitz.

It follows from the applicant's statements and the documents

submitted that on 1 November 1986 he qualified for an old age pension

as he had reached the age of 65.

As the applicant decided to continue working as a tax accountant

(Steuerberater) he was consequently obliged to continue to pay social

security contributions as of 11 November 1986.

On 19 November 1990 the applicant wrote to his social security

office complaining of his continued obligation to pay into the pension

fund although these contributions would in no way influence his own

right to an old age pension which had already come into effect. He

requested a decision which he could, if necessary, appeal against.

On 2 January 1991 the Social Insurance Board for Trade

(Sozialversicherungsanstalt der gewerblichen Wirtschaft) decided that

according to the applicable domestic law he was automatically a member

of the social insurance system and therefore had to pay contributions

to the old age pension fund. The fact that he already received an old

age pension was not under the relevant law recognised as a circumstance

justifying an exemption from the obligation to pay contributions.

The applicant then lodged an appeal which was rejected on

30 April 1991 by the Office of the Regional Government of Lower Austria

(Amt der Niederösterreichischen Landesregierung). Referring to the

Administrative Court's (Verwaltungsgerichtshof) jurisprudence the

office stated that there was no doubt that the applicant's obligation

to continue to pay social security contributions after his retirement

was lawful. Insofar as he had alleged a discriminatory treatment in

comparison to civil servants it is pointed out that retired civil

servants likewise have to pay social security contributions if they

exercise a remunerated activity in respect of which membership in a

social insurance fund is obligatory.

A further appeal was rejected by the Federal Ministry for Labour

and Social Affairs on 16 October 1991. It was stated in the decision

that the social security system is based on the principle that all

members of a profession form an association of social solidarity and

their common interests prevail over special interests of the

individual. It also referred to the jurisprudence of the

Constitutional Court (Verfassungsgerichtshof) according to which it was

of no relevance that due to particular circumstances an individual

member of a profession did not necessitate further insurance cover.

He was nevertheless obliged to pay social security contributions.

The applicant then lodged a constitutional complaint which was

rejected by the Constitutional Court on 25 February 1992. The court

referred to its constant jurisprudence according to which it did not

violate any constitutional rights that retired persons had to continue

to pay social security contributions also with regard to the old age

pension funds if they continued to work in a profession for which

membership in the social security insurance was obligatory.

The applicant also brought his case before the Administrative

Court (Verwaltungsgerichtshof) which rejected it on 29 September 1992.

The court stated that it was not competent to deal with the applicant's

complaint as he only alleged a violation of constitutional rights.

COMPLAINTS

The applicant considers that his obligation to continue to pay

social security contributions towards a pension fund, although he is

already receiving an old age pension which will not be increased on

account of his continued contributions, violates his right to the

peaceful enjoyment of possessions as guaranteed by Article 1 of

Protocol No. 1 to the Convention.

THE LAW

The applicant invokes the right to the peaceful enjoyment of

possessions (Article 1 of Protocol No. 1 (P1-1)) which he considers to

be violated because of his obligation to pay social security

contributions for a pension scheme although he is already receiving a

pension and his present contributions will not have any effect on the

amount of this pension.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The applicant's obligation to pay social security contributions

falls within the scope of the second paragraph of Article 1 of Protocol

No. 1 (P1-1). This does not however bring the matter wholly outside the

supervision of the Commission. It must be examined whether the

contribution of which the applicant complains is disproportionate to

the legitimate aim it pursues (cf. No. 9664/82, Dec. 1.3.83,

unpublished).

In this respect the Commission notes that, as was pointed out by

the domestic authorities, members of a profession form an association

of social solidarity and their common interests prevail over special

interests of the individual. As the applicant continues to work in his

profession, he is therefore under the applicable domestic law obliged

to pay the contribution in question and there is nothing to show that

there are any particular circumstances rendering this obligation to be

an excessive and arbitrary burden.

Insofar as the applicant also seems to complain that his present

contributions do no longer have any effect on the amount of the pension

he is already receiving, the Commission observes that no right to a

pension in a particular amount can be derived from Article 1 of

Protocol No. 1 (P1-1). The social security systems have to take into

account political considerations and the Commission has repeatedly held

that pension adjustments, if effected in accordance with the applicable

domestic law, did not affect property rights (e.g. No. 5849/72, Müller

v. Austria, Comm. Report 1.10.75, D.R. 3, pp. 25 (31); No. 21519/93,

Dec. 30.6.93, unpublished).

In the present case, the applicant has not complained about the

amount of pension he is actually receiving and it can in the

circumstances of his case not be found that, by not increasing the

pension in view of the contributions which he is paying subsequent to

having qualified for the payment of his present pension, the Austrian

authorities deprive him of a right which is protected under Article 1

of Protocol No. 1 (P1-1).

It follows that the application has to be rejected in accordance

with Article 27 para. 2 (Art. 27-2) of the Convention as being

manifestly ill-founded.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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BRANDNER v. AUSTRIA

BRANDNER v. AUSTRIA

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