Lexploria

AS TO THE ADMISSIBILITY OF

SUR LA RECEVABILITÉ

Application No. 18168/91

by Dieter ALLESCH and Others

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993, the following members being present:

MM. A. WEITZEL, President

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 April 1991

by Dieter ALLESCH and Others against Austria and registered on 6 May

1991 under file No. 18168/91;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

All applicants are Austrian nationals and civil engineers by

profession (a list of the applicants is attached as Appendix I).

Before the Commission they are represented by Mrs. K. Rueprecht, a

lawyer practising in Vienna.

A. Particular circumstances of the case

The applicants are members of the Federal Engineer Chamber

(Bundes-Ingenieurkammer) and are affiliated compulsorily to its Pension

Fund (Versorgungsfonds).

In 1989 the first to fifth applicants (Group A of the applicants)

applied to the Committee of the Welfare Institution of the Federal

Engineer Chamber (Kuratorium der Wohlfahrtseinrichtung der Bundes-

Ingenieurkammer) to be exempted of the liability to contribute to the

Pension Fund. They submitted that they were already compulsorily

affiliated to a general Old Age Pension Scheme (gesetzliche

Pflichtversicherung) as they were gainfully employed besides their

professional activities as self-employed.

Also the sixth to thirty first applicants (Group B of the

applicants) applied to the Committee to be exempted from the liability

to contribute to the Pension Fund. They submitted that following a

previous gainful employment they continued to be voluntarily affiliated

to a general Old Age Pension Scheme (freiwillige Weiterversicherung).

Before the Committee the applicants of Group A and B submitted

that neither the Federal Engineers Chamber Act (Ingenieur-Kammergesetz)

nor the Statute of the Welfare Institutions of the Federal Engineers

Chamber (Statut der Wohlfahrtseinrichtungen der Bundes-Ingenieurkammer)

provided for an exemption from the liability to pay contributions to

the Pension Fund if members of the Chamber were already insured under

other pension schemes. The compulsory affiliation to the Federal

Chamber's Pension Fund was not objectively justified (sachlich nicht

gerechtfertigt) and thus violated their constitutional right to equal

treatment (Recht auf Gleichheit).

The thirty second to thirty sixth applicants (Group C of the

applicants) applied to the Committee to render a declaratory decision

(Feststellungsbescheid) on their liability to contribute to the Pension

Fund. These applicants were not affiliated to any other pension

scheme. They submitted that the liability to contribute to the Pension

Fund violated their constitutional right to equality and property and

that a declaratory decision was necessary for bringing their case to

the Constitutional Court.

On 19 January, 15 February and 23 March 1990 the Committee

dismissed the applicants' respective applications. In similarly

reasoned decisions, it found that all the applicants were civil

engineers and at the time they became members of the Engineer Chamber

not yet fifty years of age. Thus, the ground for exemption as provided

for in Section 6 of the Statute was not applicable, and all applicants

were liable to contribute. All applicants appealed against the

Committee's decisions.

On 27 April 1990 the Assembly (Kammertag) of the Federal Engineer

Chamber dismissed the appeals by identical decisions against all the

applicants. It found that, according to the jurisprudence of the

Constitutional Court (Verfassungsgerichtshof) and Administrative Court

(Verwaltungsgerichtshof), the liability to contribute to the Pension

Fund was in accordance with the Federal Constitution.

On 19 July 1990 the applicants lodged a joint complaint with the

Constitutional Court. They submitted that the Assembly's decision was

based on unconstitutional provisions of law, that the Assembly's

decision violated the principle of equality and their right to property

and that the Committee and the Assembly were no tribunals within the

meaning of Article 6 para. 1 of the Convention.

On 24 September 1990 the Constitutional Court refused to

entertain the applicants' complaint. Referring to its earlier case

law, the Constitutional Court found that compulsory affiliation to more

than one pension scheme was compatible with the constitutional

principle of equality. As regards the applicant's complaint under

Article 6 para. 1 of the Convention the Court found that Article 6 of

the Convention did not apply as the complaint concerned the applicants'

liability to contribute to a pension scheme and not claims for

benefits.

B. Relevant domestic law

The Federal Engineer Chamber Act, Federal Law Gazette 1969/71

(Ingenieur-Kammergesetz, BGBl. 1969/71) establishes four Regional

Chambers (Länderkammern) and a Federal Chamber (Bundeskammer), which

are public law institutions. Membership in a Regional Chamber and the

Federal Chamber is compulsory for civil engineers who exercise their

profession (S. 5).

The Regional Chambers have to represent the professional, social

and economic interests of its members, to ensure the respect of the

professional honour (Wahrung des Standesansehens) and to control the

fulfilment of the professional duties (S. 2). The Federal Chamber is

competent for matters which concern the professional, social and

economic interests of members of two or more Regional Chambers, inter

alia, to institute and manage the Common Welfare Institutions (gemein-

same Wohlfahrtseinrichtungen) for civil engineers (S. 19 para. 2).

As common welfare institutions for civil engineers and their

surviving dependants, a Pension Fund (Versorgungsfonds) and a Burial

Fund (Sterbekasse) are instituted and managed (S. 27 para. 1). The

means of these Funds are raised by contributions. The amount of the

contributions are fixed by the Federal Chamber's Assembly (Kammertag).

The Assembly has to take into consideration the amount of benefits

granted and to fix the contributions in such an amount that it

corresponds to the necessities of the Funds having regard to their

permanent existence and continued financial capacity (S. 27 para. 4).

The management of the Pension Fund and the Burial Fund is

distinct from the management of other assets of the Federal Chamber,

and is the duty of a Committee (Kuratorium), composed of delegates from

the Regional Chambers (S. 28).

S. 29 provides for the adoption of a Statute for the Welfare

Institutions (Statut der Wohlfahrtseinrichtungen) by the Assembly of

the Federal Engineer Chamber (Kammertag). In the Statute, the

following matters have to be regulated in more detail: the function

of the Pension Fund and Burial Fund; the raising and management of the

Funds' means; the administration of the Committee; the liability to

contribute to the Funds; the granting of benefits, their amount and how

they are paid. The duties of contributors to the Funds have to be

regulated in accordance with Sections 27, 28 and 29 para. 2 to 7 of the

Act. In doing so the principles of insurance mathematics and

management necessities have to be taken into account. The Statute must

be published in the gazettes of the Federal Chamber and the Regional

Chambers (para. 1).

Civil engineers are, if not provided otherwise, liable to

contribute to the Pension Fund and the Burial Fund (S. 29 para. 2).

Civil engineers who do not exercise their profession (Ruhen der

Befugnis) are exempt from the liability to contribute to the Pension

Fund (S. 29 para. 3). Civil engineers who have passed a certain age,

which in the Statute must not be fixed lower than fifty years, can be

exempted as well (S. 29 para. 7).

The Statute has to provide for a reduction of the liability to

contribute to the Pension Fund, which must not surpass the following

percentages: 75 % if a member is affiliated to another general Old Age

Pension Scheme; 85 % if the member's yearly income is lower than the

amount which corresponds to 300 units of the basic fee for civil

engineers (Zeitgrundgebühr) as provided for in the Fee Regulation

(Gebührenordnung) and 75 % in the case of 400 units; 50 % if the

levying of the full contribution would constitute a grave hardship

(S. 29 para. 4). If the contributions are reduced, the benefits are

reduced accordingly (para. 5).

The Statute may also provide that civil engineers exempt from the

liability to contribute may continue to pay contributions on a

voluntary basis or that civil engineers liable to contributions may pay

higher contributions as a voluntary pension insurance (S. 29 para. 6).

The Statute of the Welfare Institutions in force repeats in its

Section 6 the contents of S. 29 of the Chamber of Engineers Act.

Section 7 of the Statue regulates the amount of the contributions to

the Pension Fund by setting out a list of percentages, grouped

according to age, which are applied to the liable person's income. The

percentage is based on the basic fee for civil engineers as provided

for in the Fee Regulation, if the Fee Regulation is amended, the

percentage has to be revised accordingly.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 that

the obligation to pay contributions to the Engineer Chamber's Pension

Fund violated their right to property as it constitutes a

disproportionate restriction of the use of their property. They submit

that the Engineers Chamber Act did not regulate itself with sufficient

precision the liability to contributions and their amount but delegated

this to the Statute of the Welfare Institutions. They also consider

that the compulsory affiliation to the Chamber's Pension Fund was a

disproportionate measure for achieving the aim of securing the

provision of aged civil engineers. In this respect they submit that

the contribution-benefit ratio of the civil engineer's pensions scheme

was much less favourable than private pension plans or even other

pension schemes for liberal professions or the general Old Age Pension

Schemes.

2. The applicants complain under Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1 that they were

discriminated against members of other liberal professions, like

veterinary surgeons, who had the right to be exempted from

contributions to their Chamber's pension scheme if they were employed

as civil servants, while civil engineers in comparable circumstances

could only apply for a reduction of their contributions. Moreover only

civil engineers who were affiliated to a general Old Age Pension Scheme

could apply for a reduction of their contributions while no such

possibility existed for civil engineers who had subscribed to a private

pension plan.

3. Lastly, the applicants complain that the question of their

compulsory affiliation to the Pension Fund was not determined by an

impartial and independent tribunal established by law as required by

Article 6 para. 1 of the Convention.

THE LAW

1. Under Article 1 of Protocol No. 1 (P1-1) the applicants complain

that the obligation to pay contributions to the Engineer Chamber's

Pension Fund violated their right to property.

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

"(1) 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.

(2) 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 penalties."

The Commission recalls that Article 1 of Protocol No. 1

(P1-1) in substance guarantees the right of property and comprises

"three distinct rules": the first rule, set out in the first sentence

of the first paragraph, is of a general nature and enunciates the

principle of the peaceful enjoyment of property; the second rule,

contained in the second sentence of the first paragraph, covers

deprivation of possessions and subjects it to certain conditions; the

third rule, stated in the second paragraph, recognizes that the

Contracting States are entitled, amongst other things, to control the

use of property by such laws as they deem necessary in the general

interest or to secure the payment of taxes or other contributions.

However, the three rules are not "distinct" in the sense of being

unconnected: the second and third rule are concerned with the

particular instances of interference with the right to peaceful

enjoyment of property and should therefore be construed in the light

of the general principle enunciated in the first rule (cf. Eur. Court

H.R., James and Others judgment of 21 February 1986, Series A no. 98,

p. 30 para. 37; Tre Traktörer AB judgment of 7 July 1989, Series A no.

159, pp. 22-23, para. 54).

The obligation to make compulsory contributions to a social

insurance scheme is within the right of a State "to secure the payment

of taxes or other contributions" within the meaning of the second

paragraph of Art. 1 of Protocol No. 1 (see No. 5763/72, Dec. 18.12.73,

Collection 45, p. 76 at 82; No. 11036/84, Dec. 2.12.85, D.R. 45, p. 211

at 222). A financial liability arising out of the raising of taxes or

contributions may adversely affect the guarantee of ownership if it

places an excessive burden on the person concerned or fundamentally

interferes with his financial position. However, it is in the first

place for the national authorities to decide what kind of taxes or

contributions are to be collected. Furthermore, the decisions in this

area will commonly involve the appreciation of political, economic and

social questions which the Convention leaves within the competence of

the Contracting States. The power of appreciation of Contracting

States therefore is a wide one (see No. 11036/84, Dec. 2.12.85, D.R.

45, p.211 at 222).

The Commission notes that in the present case, the applicants'

liability to contribute to the Pension Fund is based on the Engineer

Chamber Act and the Statutes of the Welfare Institutions emanating from

the Assembly of the Federal Chamber. The Commission finds that the

combined application of the provisions of the Engineer Chamber Act and

the Statute provide for a basis in domestic law for the interference

with the applicants' rights which were sufficiently clear to enable the

applicants to foresee their compulsory affiliation and the consequences

thereof (cf. mutatis mutandis Eur. Court H.R., Barthold judgment of 25

March 1985, Series A no. 90, p. 21, para. 45).

The Commission further considers that the liability of civil

engineers to contribute to the Pension Fund was based on considerations

of social policy, namely to secure the provision of aged members of the

profession and of their surviving dependants by a pension scheme based

on the principle of solidarity. The Commission finds no indication

that the rules on compulsory affiliation to the Pension Fund and their

application in the present case went beyond the limits of appreciation

left to the Contracting States.

It follows that there is no appearance of a violation of the

applicants' rights under Article 1 of Protocol No. 1 (P1-1).

This part of the application, therefore, is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants complain further that they were subject to

discrimination in violation of Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The applicants submit that members of other liberal professions,

like veterinary surgeons, had different rules governing their Pension

Fund which they consider to be more advantageous.

The Commission recalls that Article 14 (Art. 14) safeguards

individuals, placed under analogous situations, from discrimination

(see Eur. Court H.R., van der Mussele judgment of 23 November 1983,

Series A no. 70, p. 22, para. 46). The Commission recalls further that

in the quoted judgment the Court has found that no such analogous

situation existed as regards the bar and other professions, like

veterinary surgeons, pharmacists, dentists and the judicial and

parajudicial professions as each of them was characterized by a corpus

of rights and obligations

of which it would be artificial to isolate one specific aspect (loc.

cit.).

In the present case, the Commission likewise considers that the

applicants failed to show that, as regards the Pension Fund set up by

the Federal Engineer Chamber, they were in an analogous situation as

other liberal professions, and in particular veterinary surgeons and

their respective old age pension schemes. The Commission finds that

in these circumstances the differences regarding the liberal

professions do not constitute discrimination prohibited by Article 14

(Art. 14) of the Convention.

The applicants also complain that only civil engineers who were

affiliated to a general Old Age Pension Scheme could apply for a

reduction of their contributions while no such possibility existed for

civil engineers who subscribed to a private pensions plan.

The Commission finds that considerable differences between a

general Old Age Pension Scheme forming part of the general social

policy of a State and based on the principle of solidarity and pension

plans offered by private insurance firms exist. Therefore the

Commission finds that the difference drawn by Section 29 para. 4 of the

Engineer Chamber Act is based on an objective and reasonable criterium

and does not constitute discrimination prohibited by Article 14

(Art. 14) of the Convention.

It follows that this part of the application is also manifestly

ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Lastly, the applicants complain that the question of their

compulsory affiliation to the Pension Fund was not determined by an

impartial and independent tribunal established by law as required by

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

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing ... by an

independent and impartial tribunal established by law."

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention only applies to disputes over "rights and obligations" which

can be said, at least on arguable grounds, to be recognized under

domestic law. The provision does not in itself guarantee any

particular content of the substantive rights recognized in the laws of

the Contracting States (see Eur. Court H.R., James and Others judgment

of 21 February 1986, Series A no. 98, p. 46, para. 81 and Lithgow and

Others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).

The dispute which gives a right to a determination by a court must be

"genuine and of a serious nature" (see Eur. Court H.R., Benthem

judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). The

dispute may relate not only to the actual existence of a right but also

to its scope or the manner in which it may be exercised, and it may

concern both questions of fact and questions of law (see Eur. Court

H.R., van Marle and Others judgment of 26 June 1986, Series A no. 101,

p. 11, para. 32; Karni v. Sweden, Comm. Report 15.12.88, D.R. 62 pp.

90, para. 86).

The Commission notes that the applicants applied to the Committee

of the Federal Engineer Chamber's Welfare Institutions for an exemption

from their liability to contribute to its Pension Fund. They

acknowledged in their applications that they did not meet the

conditions for such an exemption according to Section 29 of the

Engineer Chamber Act. They considered that the lack of a more general

provision allowing for exemption was unconstitutional.

The Commission finds that in the present case there was no

dispute on facts, as the applicants admittedly did not fulfil the

conditions for exemption from the liability to contribute to the

Pension Fund. Furthermore, there was no dispute regarding the scope

or manner of a "right" or "obligation". The applicants merely

challenged the law in force. The Commission finds that the applicants

could not on arguable grounds claim a right of exemption from the

liability to contribute to the Chamber's Pension Fund. The dispute

thus did not concern a right within the meaning of Article 6 para. 1

(Art. 6-1) and the applicants therefore cannot rely on that provision

in this instance.

This part of the application must accordingly be dismissed as

incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

APPENDIX I

List of applicants

Group A

1. Dieter Allesch

born 1943, residing in Vienna

2. Jakob Khayat

born 1955, residing in Vienna

3. Günther Marschall

born 1949, residing in Salzburg

4. Gerhard Schweighofer

born in 1948, residing in Salzburg

5. Martin Treberspurg

born in 1953, residing in Vienna

Group B

6. Gunther Breckner

born in 1951, residing in Vienna

7. Walter Buck

born in 1943, residing in Vienna

8. Georg Michael Feferle

born in 1950, residing in Vienna

9. Thomas Freund

born in 1946, residing in Weitra

10. Thomas Gellert

born in 1951, residing in Vienna

11. Lothar Jell-Paradeiser

Born in 1947, residing in Vienna

12. Günther Lautner

born in 1946, residing in Vienna

13. Heinz Lutter

born in 1945, residing in Vienna

14. Michael Mann

born in 1949, residing in Vienna

15. Peter Mikolasch

born in 1950, residing in Vienna

16. Peter Mlczoch

born in 1949, residing in Vienna

17. Joerg Nairz

born in 1951, residing in Vienna

18. Horst Klaus Neu

born in 1944, residing Vienna

19. Alfons Oberhofer

born in 1948, residing in Vienna

20. Wolfgang Oberlik

born in 1947, residing in Vienna

21. Werner Peters

born in 1949, residing in Vienna

22. Herbert Pohl

born in 1946, residing in Vienna

23. Peter Preiss

born in 1952, residing in Kilb

24. Monika Putz

born in 1953, residing in Stixneusiedl

25. Peter Raab

born in 1952, resaiding in Vienna

26. Peter Scheifinger

born in 1948, residing in Viennna

27. Günther Schmidt

born in 1947, residing in Vienna

28. Eric Steiner

born 1945, residing in Vienna

29. Rudolf Szedenik

born 1950, residing in Großwarasdorf

30. Emmanuel Venetos

born 1953, residing in Vienna

31. Johann Winter

born 1949, residing in Vienna

Group C

32. Thomas Gruber

born in 1953, residing in Salzburg

33. Bernd Hala

born in 1944, residing in Vienna

34. Dieter Hofbauer

born in 1949, residing in Vienna

35. Christian Hundt

born 1948, residing in Salzburg

36. Georg Schönfeld

born 1950, residing in Vienna

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ALLESCH AND OTHERS v. AUSTRIA

ALLESCH AND OTHERS v. AUSTRIA