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FIRST
SECTION
CASE OF
KLEIN v. AUSTRIA
(Application
no. 57028/00)
JUDGMENT
STRASBOURG
3 March
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Klein v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Christos
Rozakis,
Peer
Lorenzen,
Khanlar
Hajiyev,
George
Nicolaou,
judges,
Ewald
Wiederin, ad
hoc judge,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 10 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57028/00) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austria national, Anton Klein (“the
applicant”), on 25 January 2000.
- The
applicant was represented by Mrs M. Klein, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that the authorities had refused to
grant him an old-age pension from the Vienna Chamber of Lawyers
Pension Fund (“the pension fund”), even though he had
paid contributions to that fund throughout his career as a lawyer,
and that this constituted a breach of his rights under Article 1 of
Protocol No. 1 read alone and in conjunction with Article 14 of the
Convention.
- Mrs E. Steiner, the judge elected in respect of
Austria, withdrew from sitting in the case (Rule 28 of the Rules of
Court). The Government accordingly appointed initially Mr H. Schäffer
to sit as an ad hoc judge in her place and subsequently Mr E.
Wiederin (Article 27 § 2 of the Convention and Rule 29 § 1
of the Rules of Court).
- By
a decision of 4 May 2006 the Court declared the application partly
admissible. However, it declared inadmissible all complaints by
Ms Claudia Klein, who was initially a second applicant.
- Neither
the applicant nor the Government filed additional observations on the
merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant is a former lawyer
who was born in 1932 and lives in Vienna.
- On
24 March 1964 he was admitted to the bar and started to practice as a
lawyer in Vienna.
- On
15 November 1995 the Disciplinary Council (Disziplinarrat) of
the Vienna Chamber of Lawyers (Rechtsanwaltskammer)
provisionally suspended the applicant’s right to practice and
on 18 December 1995 bankruptcy proceedings were opened against him.
Taking note of that fact, on 23 January 1996 the Executive Committee
of the Chamber of Lawyers (Ausschuß der Rechtsanwaltskammer)
decided that the applicant had lost his right to practise as a lawyer
pursuant to section 34(1a) of the Practising Lawyers Act
(Rechtsanwaltsordnung). This provision, as in force at that
time, provided that the right to exercise the profession of a
practising lawyer shall be revoked following the binding opening of
bankruptcy proceedings until their binding termination and the final
dismissal of a request to open bankruptcy proceedings for lack of
sufficient means. It further appears that, in connection with the
bankruptcy proceedings, the applicant was convicted of embezzlement
by the Vienna Regional Court on 28 January 1997 and sentenced to four
years imprisonment and on 28 October 1997 an additional sentence of
one year was imposed on him.
- On
31 March 1996 the applicant asked the Chamber of Lawyers to strike
him out of the List of Lawyers (Rechtsanwaltsliste) for health
reasons. On 30 April 1996 the Chamber of Lawyers informed the
applicant that it had taken note of his request. However, the
Government submitted that the plenary assembly of the Chamber of
Lawyers had struck the applicant out of the List of Lawyers on 16
April 1996. The applicant though submitted that no such decision had
been taken by the plenary assembly.
- It
appears that the Chamber of Lawyers continued to address invoices for
membership fees (including contributions to the pension fund) to the
applicant until August 1997. The Government submitted that those
requests were based on a clerical error by the Chamber’s
administration and that the respective invoices were subsequently
declared void.
- On
4 August 1997 the applicant made an application to the Vienna Chamber
of Lawyers asking it to grant him an old-age pension. In his request
he referred to the fact that he had practised as a lawyer between
1964 and 1995.
- On
16 June 1998 Division IV of the Executive Committee of the Chamber of
Lawyers (Ausschuß der Rechtsanwaltskammer) dismissed the
applicant’s application. It found that, under the relevant
provisions of the Statute of the Chamber of Lawyers Pension Fund, an
old-age pension is granted to a lawyer when he or she reaches the
retirement age, that is, sixty five years old. However, he or
she must also have renounced his or her right to practise as a
lawyer. Given that, before he reached the retirement age, the
applicant had already lost his right to practice as a lawyer, he was
not entitled to an old-age pension.
- On
3 July 1998 the applicant filed an objection (Vorstellung). He
submitted that the above-mentioned decision had been unlawful. If,
however, the findings of Division IV were correct, the regulations on
the entitlement to an old-age pension were unconstitutional because
the decision to refuse him a pension after he had paid contributions
to the pension fund for more than thirty-two years had been
arbitrary.
- On
14 July 1998 the Plenary of the Executive Committee rejected the
objection. It observed that the bankruptcy proceedings which had been
opened against the applicant were still pending and the applicant
could not claim a pecuniary right without the consent of the
receiver. Given that the applicant’s objections had been filed
without the consent of the receiver, the objection had had to be
rejected.
- On
4 September 1998 the applicant lodged a complaint with the
Administrative Court against the above-mentioned decision.
- On
15 February 1999 the Administrative Court quashed the Plenary
decision of 14 July 1998. It found that a pension claim was not one
of the claims falling entirely under the list of assets which were
subject to bankruptcy proceedings. Accordingly, the applicant himself
had had the right to file an objection.
- On
23 March 1999 the Plenary of the Executive Committee decided again on
the applicant’s objection. It found that, under the relevant
provisions of the Statute of the Chamber of Lawyers Pension Fund, the
person applying for the pension must, when reaching the retirement
age, still be a member of the Chamber. Given that, before reaching
the retirement age, the applicant had lost his membership of the
Chamber because he had also lost his right to exercise his
profession, he was not entitled to a pension.
- On
25 May 1999 the applicant lodged a complaint with the Constitutional
Court in which he argued that the decision of the Chamber of Lawyers
had violated the principle of equality and his right to peaceful
enjoyment of his possessions. At the same time he also lodged a
complaint with the Administrative Court.
- On
6 July 1999 the Administrative Court dismissed the applicant’s
complaint. It found that the applicant would have had a right to an
old-age pension only if 1) he had reached the retirement age and 2)
he had still been enrolled in the List of Lawyers of the Austrian
Chamber of Lawyers at that time. While the applicant had met the
first condition, he had not met the second condition because
bankruptcy proceedings had been opened against him which had led ex
lege to the applicant loosing his right to practice and, thereby,
loosing his membership of the Chamber of Lawyers.
- On
6 October 1999 the Constitutional Court refused to deal with the
applicant’s case because it would not have had any prospect of
success.
II. RELEVANT DOMESTIC LAW
- The
rules governing the exercise of the profession of a lawyer are set
out in the Lawyer’s Act (Rechtsanwaltsordnung). Section
50 of the Lawyer’s Act, as amended in 1973 (Lawyer’s Act
Amendment Act), provided a lawyer with a right to an old-age pension,
or, under certain conditions, for a pension for his or her surviving
spouse or descendants. The main principles for pension schemes for
lawyers are set out in section 50(2) of the Lawyer’s Act.
According to these principles, only someone who is inscribed in the
List of Lawyers of a regional Chamber of Lawyers at the time that he
or she reaches the retirement age is entitled to an old-age pension;
he or she must have been inscribed on the List for a period of ten or
fifteen years before reaching the retirement age; the retirement age
is fixed at sixty-eight years and upon reaching that age, a lawyer
must renounce his or her right to exercise the profession. Further
conditions are set out for pensions on account of incapacity to
exercise the profession, widows’ or widowers’ pension and
pensions for descendants. Under section 50(3), the regional
Chambers of Lawyers are free to fix more favourable conditions for
their own pension scheme.
- The
detailed regulations, as set out in the statues of the pension
schemes (Versorgungseinrichtungen) adopted by the plenary
assembly of the Vienna Chamber of Lawyers, repeat the conditions
under section 50(2) of the Lawyer’s Act. The Vienna Chamber of
Lawyers has not made use of the possibility under section 50(3) to
fix more favourable rules with the exception of fixing the retirement
age at sixty-five years.
- The
pension scheme is financed by compulsory contributions from the
members of the pension fund, the amount of which is fixed by the
plenary assembly of the Chamber of Lawyers and roughly calculated on
the basis of the payments to beneficiaries out of the pension fund.
- The
fund has also another source of income. Under Austrian Law, lawyers
do not receive individual payments for services rendered in the
context of legal aid. However, as a compensation for the services
rendered by all lawyers, the State pays an annual lump sum which is
divided among the regional Chambers of Lawyers and put into the
pension funds.
- For
1998 the annual contribution to the pension scheme were fixed at
40,000 Austrian schillings (ATS, approximately EUR 2,900) per member
and the old age pension at ATS 23,000 (approximately EUR 1,670)
payable fourteen times per year. For 1999 the contributions were
fixed at ATS 61,000 (approximately EUR 4,430), reduced
contributions for members under 32 years at ATS 40,000 (approximately
EUR 2,900) and increased contributions for lawyers who were older
than 50 years when inscribed in the List of Lawyers for the first
time at ATS 71,000 (approximately EUR 5,160). Pension payments for
1999 were fixed at ATS 24,000 (approximately EUR 1,745) payable
fourteen times per year. Pension payments were regularly increased
over the years and the amount fixed for 2006 was EUR 2,030.
- By
a federal act of 28 October 2003 (Federal Law Gazette I no. 93/2003),
which entered into force on 1 January 2004, the pension regime of
lawyers was amended. The new system of old-age pensions, as provided
for in sections 49 and 50 of the Lawyer’s Act, provides that
being inscribed in the List of Lawyers at the time of reaching the
retirement age is no longer a condition which must be met in order
for an old-age pension to be granted. Old-age pensions are now also
granted to persons formerly inscribed on the List of Lawyers and,
provided that contributions have been made for a minimum time, they
are calculated using a formula which takes into account the amount of
contributions paid and the period during which they have been paid.
- On
3 December 2003, in an extraordinary meeting, the plenary assembly of
the Vienna Chamber of Lawyers amended the statutes of its pension
scheme following the introduction of the above-mentioned rules.
- Under
the transitory provisions of section 18 of the Vienna statues of the
pension scheme, the new provisions apply only to lawyers claiming an
old-age pension whose right to exercise the profession had not been
withdrawn before the amendment entered into force.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 1 of Protocol
No. 1, alone and in conjunction with Article 14 of the Convention,
that the refusal to grant him an old-age pension from the pension
fund, even though he had paid contributions to that fund throughout
his career as a lawyer, had violated his property rights and had been
arbitrary.
- Article
1 of Protocol No. 1, in so far as relevant, 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.”
A. Submissions by the parties
- The
applicant submitted that Article 1 of Protocol No. 1 applied to his
pension claim. Doubts as to the applicability of this provision would
subside only if the entitlement to a pension was based on transfer
payments by the State and not on contributions made by the person
claiming the pension. Also, the fact that the Chamber of Lawyers was
a self-governing body did not remove his pension claim from the scope
of Article 1 of Protocol No. 1 as argued by the Government,
because this did not mean that they were not at all, or to a lesser
extent, subject to the laws of the State or the rights set forth in
the Convention.
- Referring
to the merits, the applicant pointed out that he had made financial
contributions to (and performed unpaid legal aid services for) the
pension fund for many years, but, because of the lack of a formal
requirement at the time that he had reached the retirement age, his
pension claim had been refused. This constituted an unjustified
enrichment of the pension fund.
- The
applicant also claimed that the formal requirement of being inscribed
on the List of Lawyers at the time of his retirement had been
fulfilled by him. When bankruptcy proceedings had been opened against
him, on 18 December 1995, he had lost the right to practice as a
lawyer, but had not been formally struck out of the List of Lawyers.
Until August 1997 he had received invoices for membership fees to the
Chamber of Lawyers. This had shown that the Chamber itself had
considered that the applicant was still its member. In his view, he
could have been struck out of the List of Lawyers only through a
formal decision confirmed in writing. Given that this had not
occurred, he must have still been on the List.
- The
pension scheme for lawyers was, in general, based on the principle of
solidarity, as was the case with the social insurance pension scheme.
The comparison with a damage insurance scheme was therefore improper
and misleading because arriving at the retirement age could not be
considered an incident causing damage. It was a typical feature of a
pension scheme that the obligation to provide benefits to the insured
person arrived when the period of contribution ended. It was not
realistic to require an insured person to take out another insurance
policy just in case, in the future, he or she looses the right to
practice the profession. But, even if this was the case, this was no
justification to forfeit pension contributions made over a
considerable period. The applicant also pointed to the recent
amendment to the rules on old-age or survivor pensions of lawyers,
according to which being inscribed on the List of Lawyers was no
longer a condition for granting a pension to the interested person.
If these rules had been in force at the time of the events, the
applicant would have been entitled to an old-age pension.
- The
Government argued that Article 1 of Protocol No. 1 did not apply to
the proceedings at issue. While, according to the Court’s
relevant case-law, payments into a pension fund could create a right
to benefits from that fund, the Court, nevertheless, emphasises at
the same time that this was the case only if the conditions laid down
by the law had been met. In the present case, the applicant was
clearly excluded from the pension scheme. The lawyers’ old-age
pension scheme did not correspond to the “conventional”
model of a social insurance scheme in Austria, but was a system of
benefits sui generis. Besides having elements of a social
insurance scheme, it also contained elements of a contractual and, in
particular, a damage insurance scheme. This was evident from the fact
that, under the lawyers’ old-age pension scheme, in order for
the person concerned to be granted an old-age pension, he or she must
have been registered on the List of Lawyers at the time that the
pension was due to be applied. This corresponded to the requirement
under a damage insurance scheme of a valid contractual relationship
at the time that the damage occurred. Because of this particularity,
it was inadmissible to directly compare the lawyers’ pension
scheme to the general social insurance scheme.
- The
Government also pointed out that the Chamber of Lawyers, which
represented the interests of lawyers, had been established as a
self governing body with compulsory membership and democratic
structures, in which the individual members had the opportunity to
exert influence on the tenets of the group and, thus, also on the
statutes of its pension scheme. The State cannot, therefore, be held
responsible for the ensuing regulations to the same extent as in
“classical” social insurance cases.
- The
Government further submitted that, even if one considered Article 1
of Protocol No. 1 applicable, any alleged interference with the
applicant’s property rights had been justified. Given that
lawyers, by comparison with other professions, were subject to
different occupational requirements and had different rights and
duties, the fact that their pension scheme was different to those of
other professions was justified. Lawyers were self-employed and were
highly-qualified members of a profession which contained the
necessary legal knowledge and freedom of decision making to enable
those members to make their own arrangements regarding pension
benefits.
- The
system, about which the applicant now complains, already existed when
he took up his profession and he must have been aware of the
conditions for granting pension payments. He had also benefited from
that system, because funding the pension payments to retired members
of the profession on a pay-as-you-go basis (Umlagesystem)
allowed for relatively small contributions. If the condition about
which the applicant now complained – being inscribed in the
List of Lawyers at the crucial moment – had not existed, the
applicant would certainly have had to pay considerably higher
contributions to the pension fund. The applicant had been free to
join the general social insurance scheme on a voluntary basis.
- As
regards the applicant’s submission that he should have been
considered as having still been inscribed on the List of Lawyers
because no formal written decision had been taken, the Government
submitted that he had been deleted from the List at the latest on 16
April 1996 by a decision taken by the plenary assembly of the Chamber
of Lawyers. In any event, the Administrative Court, in its decision
of 6 July 1999, had clarified that, for the purposes of the pension,
the decisive element was that bankruptcy proceedings had been opened
against him and that he had therefore lost his right to practise as a
lawyer before having reached the retirement age. In so far as the
applicant argued that under the 2004 pension regulations he would be
entitled to an old-age pension, the Government referred to the
transitory provisions of the amendment, according to which the new
system would not be applicable to him.
B. The Court’s assessment
1. Applicability of Article 1 of Protocol No. 1
- The
Government submitted two arguments as to why this provision did not
apply to the present proceedings. First, they argued that, even
though payments into a pension fund could create a right to benefits
from that fund, this was the case only if the conditions laid down by
the law had been met. In the present case, the applicant was clearly
excluded from the lawyers’ pension scheme because he had not
fulfilled the relevant conditions and therefore had no claim to have
his pension protected by Article 1 of Protocol No. 1. Second,
the Government argued that the Chamber of Lawyers, which represented
the interests of lawyers, had been established as a self-governing
body with compulsory membership and democratic structures. The State
therefore could not be held responsible for the ensuing regulations
to the same extent as in “classical” social insurance
cases.
- The
Court reiterates that the right to a pension is not, as such,
guaranteed by the Convention. However, according to the case-law of
the Convention institutions, the right to a pension which is based on
employment can in certain circumstances be assimilated to a property
right (see Apostolakis v. Greece, no.
39574/07, § 27, 22 October 2009).
- This
may be the case where special contributions have been paid: in its
judgment in the case of Gaygusuz v. Austria (see Gaygusuz v.
Austria, 16 September 1996, §§ 39-41, Reports
of Judgments and Decisions 1996 IV), the Court held that
entitlement to a social benefit is linked to the payment of
contributions, and, when such contributions have been made, an award
cannot be denied to the person concerned. That case concerned the
issue of emergency aid granted by the State to people in need, which,
the Court held, was a pecuniary right for the purposes of Article 1
of Protocol No. 1. The Court found a violation of Article 14 of
the Convention combined with Article 1 of Protocol No. 1 because
the Government had refused to grant the award on grounds of
nationality.
- That
may also be the situation where an employer has given a more general
undertaking to pay a pension on conditions which can be considered to
be part of an employment contract (see Sture Stigson v. Sweden,
no. 12264/86, Commission decision of 13 July 1998).
- The
present case differs to a certain extent from the ones quoted above,
because it neither concerns social security benefits in general nor
expectations to receive a pension based on an employment contract.
However, the Court considers that the compulsory affiliation to an
old-age pension scheme, based on the equally compulsory membership of
a professional organisation during the exercise of a profession, may
also give rise to the legitimate expectation to receive pension
benefits at the point of retirement and constitutes a possession
within the meaning of Article 1 of Protocol No. 1.
- Thus,
the Court cannot accept the Government’s argument that
Article 1 of Protocol No. 1 did not apply. On the one hand the
condition of affiliation to the Chamber of Lawyers and the failure to
fulfil this condition as a sufficient reason for forfeiture of a
pension claim cannot in the Court’s view lead to the conclusion
that the applicant had no possession within the meaning of Article 1
of Protocol No. 1. In this respect, the Court also observes that,
following an amendment to the Lawyers’ Act in 2003, being
inscribed in the List of Lawyers at the time of reaching the
retirement age was no longer a condition which had to be met in order
for an old-age pension to be granted. As regards the Government’s
second argument, the Court observes that the Chamber of Lawyers is
not a private association but a public law body, and measures taken
by that body therefore engage the responsibility of Austria as a
State.
- Article
1 of Protocol No. 1 therefore applies to the proceedings at issue.
2. Compliance with Article 1 of Protocol No. 1
- The
Court considers that the refusal to grant the applicant an old-age
pension from the pension fund constituted an interference with the
applicant’s right to peaceful enjoyment of his possessions. The
question is how should the interference be analysed under Article 1
of Protocol No. 1?
- The
Court has stated in the past that the reduction or the forfeiture of
a retirement pension acts neither as a control of use nor a
deprivation of property, but that it falls to be considered under the
first sentence of the first paragraph of Article 1 (see Banfield
v. the United Kingdom (dec.), no. 6223/04, ECHR 2005-XI with
further references). Accordingly, it must be determined whether a
fair balance was struck between the demands of the general interest
of the community and the requirements of the protection of the
individual’s fundamental rights.
- In
the case of Banfield v. the United Kingdom, which concerned
the reduction of the pension of a police officer by 65% after he had
been convicted of criminal offences, the Court found no violation of
Article 1 of Protocol No. 1, because the reduction of the
pension benefit was limited to that part of the applicant’s
pension which corresponded to the contributions by his employer paid
during his time of service and did not concern that part of his
pension which related to his own contributions (see Banfield,
cited above). In the case of Apostolakis v. Greece, which
concerned the automatic deprival of all of the applicant’s
pension rights following a criminal conviction, the Court considered
that that measure had been disproportionate and found a breach of
Article 1 of Protocol No. 1 (see Apostolakis, cited above, §
42).
- In
both cases, the Court emphasised that the State’s entitlement
to bring forfeiture and disciplinary proceedings against the
applicant in addition to the criminal proceedings was well within its
margin of appreciation and met the demands of the general interest of
the community (see Banfield, cited above, and Apostolakis,
cited above, § 41).
- In
the present case, the applicant was convicted of embezzlement (see
paragraph 9) but that conviction had not had any direct effect on his
pension claim. The Executive Committee of the Chamber of Lawyers, the
Plenary of the Executive Committee and eventually the Administrative
Court dismissed the applicant’s request for an old-age pension
because bankruptcy proceedings had been opened against him, and they
had led ex lege to the applicant loosing his right to practice
and, thereby, loosing his membership of the Chamber of Lawyers.
Membership of the Chamber of Lawyers was, however, a condition for
being granted a pension from the pension fund at reaching the age of
at least 65.
- The
Court finds that it is clearly within the margin of appreciation
afforded to the Contracting States to provide by law that members of
the profession of lawyers who no longer have appropriate financial
resources and have been declared bankrupt should no longer exercise
that profession. However, given that no punitive element was
involved, such a legitimate interest cannot go so far that it
justifies the forfeiture of all of the pension claims of the lawyer
concerned.
- The
Government argued that the lawyers’ old-age pension scheme was
a system of benefits sui generis, combining elements of a
social insurance scheme with elements of a damage insurance scheme.
The condition, that a person claiming a pension through the lawyers’
pension scheme must be registered on a List of Lawyers at the time
that the pension is granted, corresponded to the requirement under a
damage insurance scheme of a valid contractual relationship at the
time that the damage occurred. The system, about which the applicant
complained, already existed when the applicant took up his profession
and he must have been aware of the conditions for granting pension
payments. He had also been free to join the general social insurance
scheme (outside the bar) on a voluntary basis.
- The
Court is not persuaded by those arguments. It is true that the
applicant must have been aware of the system as a whole when he
started his profession as a lawyer, but that argument should not be
overstated. In view of the compulsory nature of the affiliation to
the Chamber of Lawyers pension scheme and the compulsory
contributions thereto, it was clearly intended to give to lawyers
reaching the retirement age a pension which largely corresponded to
the cover provided under the social security scheme. In this respect
the Court considers that an old age pension scheme can hardly be
compared to a damage insurance contract, as the Government suggest,
because the latter is designed for providing financial compensation
for damage caused by an event, such as fire, flood or accident, which
is not sure to occur, whereas the former is clearly intended to
provide for means of subsistence in the future during a period of
life in which the capacity to earn will diminish partly or fully. One
cannot, therefore, expect a lawyer to subscribe to a further pension
scheme under the social security system to protect himself against
the complete loss of his or her pension just in case he or she looses
the right to exercise the profession. This must be considered a quite
exceptional risk. It also transpires from the facts which were stated
after the applicant had gone bankrupt, that the Chamber of Lawyers
had had considerable difficulty dealing with a situation which also
seemed unusual to them. Moreover, the subsequent amendment to the
lawyers’ pension scheme in 2003, which abolished the condition
that a lawyer must be inscribed in the List of Lawyers at the time of
reaching the retirement age in order to be granted an old-age
pension, and making the payments of that pension dependent on a
minimum time of contribution (see paragraph 25 above) shows that that
situation was no longer considered appropriate.
- It
seems that, by adopting only the minimum level of regulation for a
member to be included in the system of pension benefits (see Relevant
Domestic Law, paragraphs 21-27 above) and keeping the circle of
potential beneficiaries of the pension scheme small, the Vienna
Chamber of Lawyers strived to keep the contributions to its pension
fund low. However, in the Court’s view, when it comes to a
compulsory scheme, regulations must take into account exceptional
situations like the one in which the applicant found himself.
- The
Court cannot find that, by completely depriving the applicant of all
of his entitlements to a pension, after having contributed to the
pension scheme during the whole of his professional career both
individually and collectively (see §§ 24-25), a fair
balance was struck between the competing interests. It rather seems
as if an excessive individual burden was placed on the applicant (see
Immobiliare Saffi v. Italy, [GC], no. 22774/93, §
59, ECHR 1999-V).
- Accordingly
there has been a breach of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ
IN CONJUNTION WITH ARTICLE 1 OF PROTOCOL NO. 1
- In
respect of the above-mentioned complaint, that the refusal to grant
the applicant an old-age pension from the pension fund even though he
had paid contributions to that fund throughout his career as a
lawyer, the applicant also relied on Article 14 of the Convention
read in conjunction with Article 1 of Protocol No. 1. Article 14
reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] 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
Court reiterates that Article 14 has no independent existence, but
plays an important role by complementing the other provisions of the
Convention and its Protocols, because it protects individuals placed
in similar situations from any discrimination in the enjoyment of the
rights set forth in those other provisions. Where a substantive
Article of the Convention or its Protocols has been invoked, both on
its own and together with Article 14, and a separate breach of the
substantive Article has been found, it is not generally necessary for
the Court to also consider the case under Article 14. However, the
position is reversed if a clear inequality of treatment in the
enjoyment of the right in question is a fundamental aspect of the
case (see Chassagnou and Others v. France [GC], nos. 25088/94,
28331/95 and 28443/95, § 89, ECHR 1999-III, and Dudgeon v.
the United Kingdom, 22 October 1981, § 67, Series A no.
45).
- In
the circumstances of the present case, the Court considers that there
is no cause for a separate examination of the same facts from the
standpoint of Article 14 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- In
respect of pecuniary damage, the applicant claimed 289,808.99 euros
(EUR). He submitted that this sum corresponded to the old-age pension
payments he should have received from the pension fund from 9 July
1997 onwards. Moreover, he claimed that the Court should order the
Government to make future pension payments equal to an ordinary
old-age pension as fixed by the competent organs of the Vienna
Chamber of Lawyers.
- In
respect of costs and expenses, the applicant claimed EUR 39,157.47
for those incurred in both the domestic proceedings and the
proceedings before the Court, including Turnover Tax.
- The
Government pointed out that there should be a causal link between the
violation found and the presumed damage. Moreover, it was not for the
Court to speculate what the outcome of the proceedings would have
been had the authorities or courts acted in conformity with the
requirements of the Convention. In any event the applicant should not
have submitted such a claim himself because, as a person declared
bankrupt, he was no longer in a position to make those claims.
Moreover, the applicant’s claims should be reduced by the
amount of the contributions he had not made to the pension fund which
amounted to EUR 22,004.10 and by the amount of EUR 264,920, which the
Chamber of Lawyers had paid from its own funds to the applicant’s
clients after he had gone bankrupt.
- As
regards the claim for legal costs, the Government asserted that the
sums claimed by the applicant were in general excessive and the costs
for representation in the proceedings before the Vienna Chamber of
Lawyers had been incurred unnecessarily because there had been no
obligation to be represented by counsel.
- The
Court considers that the question of the application of Article 41 is
not ready for a decision. Accordingly, it shall be reserved and the
subsequent procedure shall be fixed after having regard to any
agreement which might be reached between the Government and the
applicant (Rule 75 § 1 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 1 of Protocol No. 1;
2. Holds
that no separate examination of the same issues under Article 14 of
the Convention is required;
3. Holds
that the question of the application of Article 41 is not ready
for a decision; accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months of
the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 3 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
