THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58468/00 by Alfred KIENDLER against Austria

The European Court of Human Rights (Third Section) , sitting on 20 March 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , Mrs E. Steiner , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 12 October 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Alfred Kiendler, is an Austrian national, who was born in 1920 and lives in Graz. He is represented before the Court by Mr Schmidt, a lawyer practising in Graz.

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant is a retired dentist. In 1960, he concluded a contract with the Styria Regional Health Insurance Board ( Gebietskrankenkasse ). In this context, he instituted numerous proceedings in order to contest the contributions he had to pay to the Styria Medical Association ( Ärztekammer ) on the basis of that contract. Such contributions are collected pursuant to the Regulation on Contributions and Apportionment of Costs ( Beitrags - und Umlageverordnung ). The contributions are calculated on the basis of an estimated income situation and serve to finance a pension and invalidity fund ( Wohlfahrtsfond ).

1. First set of proceedings

On 12 April 1992 the applicant instituted proceedings against the Regional Insurance Board, requesting full reimbursement of the contributions paid to the Styria Medical Association between 1985-1991.

On 16 September 1992 the Styria Regional Joint Arbitration Committee ( Paritätische Schiedskommission ) dismissed his request, finding that the contribution had been levied in accordance with the relevant provisions of the Regulation on Contributions and Apportionment of Costs.

On 15 December 1992 the Regional Appeals Commission ( Landesberufungskommission ) dismissed the applicant’s appeal against this decision.

The applicant filed a complaint with the Constitutional Court.

On 17 June 1993, as a result of similar proceedings instituted by the applicant’s wife, who is also a dentist by profession, the Constitutional Court annulled specified parts of Section 11 of the Regulation on Contributions and Apportionment of Costs as being unlawful.

Referring to that decision, the Constitutional Court, on 12 October 1994, granted the applicant’s complaint and quashed the decision of 15 December 1992, finding that it could not be excluded that the applicant was at a disadvantage due to the application to his case of a provision which had meanwhile be annulled.

On 2 May 1995 the Regional Joint Arbitration Committee again dismissed the applicant’s request.

Thereupon, the applicant lodged another complaint with the Constitutional Court.

On 23 September 1996 the Constitutional Court rejected his complaint on account of formal deficiencies of the impugned decision. In particular, it found that the decision had not been properly issued because the competent civil servant had not signed it.

On an unspecified date, the Arbitration Committee remedied the formal shortcoming of its decision of 2 May 1995.

The applicant again lodged a complaint with the Constitutional Court.

On 7 June 1999 the Constitutional Court dismissed his complaint as being unfounded. This decision was served on the applicant on 9 July 1999.

2. Second set of proceedings

This set of proceedings relates to notifications issued by the Administrative Committee ( Verwaltungsausschuss ) of the Styria Medical Association ordering the applicant to pay his yearly contribution to the pension and invalidity fund ( Vorschreibung der Kammerumlage ). The notifications were issued on 15 May 1991 (for 1990), 10 February 1992 (corrected one for 1989), 28 February 1992 (for 1991), 15 May 1992 (for 1992), 30 December 1993 (for 1993), respectively.

It appears that each time after having received such a notification, the applicant requested the Medical Association to issue a formal decision on the calculation of the contribution due as he intended to file an appeal. As far as can be determined from the documents submitted, he filed such requests on 23 March 1993, 18 February 1994, 21 February 1994, 21 March 1994, 20 September 1994, 2 June 1995, 22 September 1995 and 28 September 1996, respectively.

On 12 September 1994 the applicant, referring to his requests relating to the contributions due for 1989, 1990, 1992 and 1993, requested a transfer of jurisdiction to the Executive Board ( Vorstand ) of the Styria Medical Association as the latter had not taken any action in his matter within the statutory six months period.  This request was based on the relevant provisions of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ).

On 1 December 1994 and on 20 February 1995, respectively, the Appeals Panel ( Beschwerdeausschuss ) of the Styria Medical Association rejected the applicant’s request for a transfer of jurisdiction, reasoning that the proceedings at issue did not fall within the ambit of the General Administrative Procedure Act.

The applicant filed a complaint against this decision with the Constitutional Court.

On 27 November 1995 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success and referred the case to the Administrative Court.

On 6 August 1996 the Administrative Court, referring to its decision of 25 June 1996, quashed the impugned decision. In the case referred to, which had also been brought before the court by the applicant, the Administrative Court had found that the applicant had a right to a decision as the material proceedings fell under the scope of the General Administrative Procedure Act.

On 15 June 1997 the applicant filed a further request for the transfer of jurisdiction.

On 15 July 1997 the Appeals Panel granted the applicant’s request of 12 September 1994 for a transfer of jurisdiction, verified the calculation of the applicant’s contributions for 1989 to 1994 and dismissed his request for suspensive effect.

On 9 December 1997 the Appeals Panel granted the applicant’s further request for transfer of jurisdiction dated 15 June 1997. However, referring to its decision of 15 July 1997, it refused to re-calculate his contributions on the ground that the matter was res iudicata .

Meanwhile, on 8 August 1995 and 10 May 1996, respectively, the Administrative Committee of the Medical Association had informed the applicant about the contributions due for the calendar years 1995 and 1996.

On 28 September 1996 the applicant requested the Medical Association to issue a formal decision on the calculation of the contribution.

On 14 March 1997 the Administrative Commission of the Medical Association rejected that request.

The applicant appealed.

On 14 October 1997 the Appeals Panel granted the applicant’s appeal, verified the calculation of the applicant’s contributions ordered for 1995 and 1996 and dismissed his request to suspend from collecting them.

The applicant filed a complaint with the Constitutional Court.

On 7 June 1999 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success and referred the case to the Administrative Court.

On 14 December 1999 the Administrative Court, in three identical decisions regarding the periods 1989 to 1993, 1994 and 1995 to 1996, dismissed his complaint as being unfounded. As far as the applicant had complained that the Appeal Panel of the Styria Medical Association was not a tribunal within the meaning of Article 6 of the Convention, the court, referring to its constant case-law as well as various decisions issued in cases brought before it by the applicant in the past, stated that Article 6 was not applicable to the proceedings at issue. The decision was served on the applicant on 16 February 2000.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the alleged unfairness of the two sets of proceedings, claiming in particular that they were not concluded within a reasonable time. As to the second set of proceedings, he also complains that the Appeal Panel of the Medical Association was not a tribunal within the meaning of that provision and that one of the organs of the Appeal Board was allegedly biased. Finally, relying on Article 1 of Protocol No. 1, he complains about the Austrian authorities’ refusal to reimburse his annual contributions.

THE LAW

1. The applicant complains that the two sets of proceedings at issue were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant also complains under Article 6 of the Convention that, in the second set of proceedings, his matter was not dealt with by an independent and impartial tribunal within the meaning of that Article, claiming in particular that the Appeal Panel of the Styria Medial Association did not meet the standards of a tribunal.

Article 6 of the Convention, insofar as relevant reads as follows:

“1. In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing ...by an independent and impartial tribunal established by law.”

As to the applicability of Article 6 to the instant case, the Court recalls that proceedings concerning the payment of contributions to a social security scheme do fall within the scope of this provision (see Schouten and Meldrum v. the Netherlands , judgment of 9 December 1994, Series A no. 304, pp. 19-24, §§ 47-60).

However, the Court finds that i t can be left open whether or not the Appeals Panel of the Styria Medical Association is a tribunal within the meaning of that provision, as, in any event, the applicant, by lodging a complaint with the Administrative Court, had access to a tribunal meeting the requirements of that provision. In this respect, the Court reiterates that it has considered the scope of the Administrative Court’s review in this point as being sufficient to satisfy the requirements of Article 6 of the Convention unless it declines jurisdiction (see, for example, Zumtobel v. Austria, judgment of 12 September 1993, Series A no. 268-A, p. 13-14, §§ 31-32, Müller and Others v. Austria , dec. no. 26507/95, 23 November 1999, unreported). In the present case, there is no indication that the Administrative Court considered itself incompetent to decide on the merits of the applicant’s complaint.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. Finally, the applicant complains that the Austrian authorities’ refusal to refund his contributions paid to the Styria Medical Association amounted to a breach of Article 1 of Protocol No. 1, which 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 Court recalls that Article 1 of Protocol No. 1 aims at securing the peaceful enjoyment of existing possessions. Future income only constitutes a “possession” if it has been earned or where an enforceable claim exists (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 23, § 50; Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p.23, § 48), or where the applicant may argue that he has at least a “legitimate expectation” of obtaining the effective enjoyment of a property right (see Pine Valley Developments Ltd. and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 23, § 51).

The Court observes that the applicant concluded a contract with the Styria Regional Health Insurance Board and thereby consented to the collection of contributions in favour of the Styria Medical Association in accordance with the Regulation on Contributions and Apportionment of Costs. It follows that the applicant did not, at any time, have a “legitimate expectation” to obtain reimbursement of the contributions collected on the basis of that contract, let alone an enforceable compensation claim. Therefore, the applicants’ complaint falls outside the scope of Article 1 of Protocol No. 1.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of the proceedings;

Declares the remainder of the application inadmissible.

Vincent Berger G eorg Ress Registrar President