CONCURRING OPINION OF MM. G. JÖRUNDSSON, H.G. SCHERMERS,

                       M. PELLONPÄÄ, B. MARXER.

      We voted with the majority of the Commission to the effect that

there had been no breach of Article 6 of the Convention.  However, we

do not share the opinion of the majority of the Commission that Article

6 of the Convention applies in this case.

      Article 6 para. 1 of the Convention only applies to disputes over

"rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law.  Article 6 does not in

itself guarantee any particular content for "rights and obligations"

in the substantive law of the Contracting States (cf. 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).

      In the present case the applicant, in his complaints to the

Constitutional Court of 22 February 1986 and 11 August 1988, challenged

the constitutionality of provisions of the Pensions Act as amended on

26 September 1985.  In his first complaint he attacked provisions which

provided for the suspension of a widow's or widower's pension while the

person entitled was still gainfully employed, and the transitional

provisions accompanying the introduction of a widower's pension. In his

second complaint he only attacked the constitutionality of the latter

provision.

      Pursuant to part II. para. 2 of the 8th Amendment to the Pensions

Act, the applicant was entitled to a reduced pension.  He does not

submit that the Regional Government did not correctly apply the law in

force.  It has to be stressed that ordinary Austrian law unequivocally

excluded the applicant from the benefit of a full widower's pension.

In his complaint to the Constitutional Court he attacked the existing

legislation with a view to obtaining a basis for new claims.  The

subject matter of the applicant's constitutional complaint was not a

claim to a full widower's pension but the applicant's allegation that

the legislation in force which did not support such a claim was in

conflict with constitutional provisions of Austrian law.  The

constitutional complaint therefore did not concern an existing right

but the creation of a new right which was more favourable to his claim

for a full widower's pension.  As there was no existing right, the

applicant was merely able to allege before the Constitutional Court

that he ought to have one.  However, such an allegation is not, of

itself, sufficient to constitute a "civil right" in domestic law.

      In this respect the present case must also be distinguished from

the Ruiz-Mateos judgment of the European Court of Human Rights, where

the applicants complained about the proceedings before the Spanish

Constitutional Court, in which the latter examined the

constitutionality of an expropriation by law which had deprived them

of a previous right (see Eur. Court H.R., Ruiz-Mateos judgment of 23

June 1993, Series A no. 262, p. 24, paras. 58-59; see also Procola

judgment of 28 September 1995, para. 39, to be published in Series A

no. 326).

      Furthermore it should be noted that Article 13 of the Convention

does not guarantee a remedy allowing a Contracting state's statutes as

such to be challenged before a national authority on the ground of

their being contrary to the Convention or to equivalent domestic legal

norms (see James and Others judgment of 21 February 1986, Series A no.

98-B, p. 47, para. 85; Leander judgment of 26 March 1987, Series A

no. 116, p. 30, para. 77).  Even less can Article 6 apply to

proceedings, in which the review of the constitutionality of ordinary

legislation is sought, like, in the present case, the provisions of the

Austrian Pensions Act.

      For these reasons we find that the proceedings before the

Constitutional Court did not concern the determination of "civil rights

and obligations" within the meaning of Article 6 para. 1 of the

Convention.

                                                        (Or. English)