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R.W. v. AUSTRIA

Doc ref: 14128/88 • ECHR ID: 001-2618

Document date: February 12, 1990

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R.W. v. AUSTRIA

Doc ref: 14128/88 • ECHR ID: 001-2618

Document date: February 12, 1990

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 14128/88

by R.W.

against Austria

The European Commission of Human rights sitting in private on

12 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 1 July 1988 by

R.W. against Austria and registered on 22 August 1988 under file

No. 14128/88;

Having regard to the report provided for in Rule 40 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

The applicant was born in 1930 in Sweden. In 1956 she acquired

the Austrian nationality by marriage in addition to the Swedish and is

now living in Salzburg. She is represented by Mr. G. Gressel and

Partners, lawyers in Salzburg.

The applicant complains of the refusal by the Austrian social

security authorities (Pensionsversicherungsanstalt der Angestellten)

to recognise the time she spent in high school and university in Sweden

as qualifying period for the purpose of the calculation of her pension

under the Austrian social security system. Her action against this

decision was dismissed by the Social Security Arbitration Court

(Schiedsgericht der Sozialversicherung) on 11 July 1986. The Supreme

Court (Oberster Gerichtshof) confirmed this judgment on 20 October 1987

(served on 22 December 1987) insofar as the period spent in high school

and university was in question. The Supreme Court stated that the

qualifying period had to be calculated by adding together the period

during which the applicant was affiliated to the Austrian social

security system and the time spent in Sweden which was considered as

a qualifying period under Swedish law in accordance with the Agreement

between Austria and Sweden relating to social security matters

(AbkSozSiSchweden). Article 19 (2) of the Agreement provided that

qualifying periods were those during which a person had his/her normal

place of residence in Sweden and had to pay income tax there.

Therefore the time during which the applicant studied in Sweden could

not be taken into account. Furthermore, the applicant could not rely

on the Austrian Social Security Act (ASVG) as the relevant provisions

stipulated that only studies in domestic schools counted as a

"substitute period".

The applicant invokes Article 1 of Protocol No. 1 in conjunction

with Article 14 of the convention. She points out that if her years

of studying were taken into account, she would qualify earlier for an

old-age pension and the amount of the pension would be higher. She

submits that the regulation in Sections 227 et seq. of the Austrian

Social Security Act serves the purpose of preventing that persons who

underwent extended educational training thereby suffer a loss of time

qualifying for insurance benefits. The non-recognition of her studies

in Sweden is in her submission objectively unjustified and therefore

discriminating.

However, Article 14 does not forbid every difference in treatment

in the exercise of the rights and freedoms recognised in the Convention

and its additional Protocols. The competent national authorities are

frequently confronted with situations and problems which, on account

of differences inherent therein, call for different legal solutions.

There does not exist a uniform European social security system and

therefore the transfer of social security rights or expectations from

one State to another is usually regulated in bilateral treaties between

the states are free to determine the extent and the conditions for the

mutual recognition of social security rights.

The applicant's social security rights were determined on the

basis of the Treaty existing between Austria and Sweden on these

matters. This Treaty refers to Swedish law insofar as pension rights

or expectations acquired in Sweden are concerned. The applicant has

not alleged that the time she spend studying in Sweden would count for

the purpose of the calculation of her pension under Swedish law.

Therefore, even assuming that the right to a social security

pension is as such protected by Article 1 of the First Protocol, there

is no appearance of a possible discrimination against the applicant in

the enjoyment of this right.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President to the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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