CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 20223/92                       by Karl SCHOTTENBERGER                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 29 April 1992 by Karl Schottenberger against Austria and registered on 24 June 1992 under file No. 20223/92;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       22 April 1994 and the observations in reply submitted by the       applicant on 17 June 1994;         Having deliberated;         Decides as follows:   THE FACTS         The facts of this case, as they have been submitted by the parties, may be summarised as follows:         The applicant is an Austrian citizen, born in 1920, and residing in Salzburg.   In the proceedings before the Commission, he is represented by Mr. A. Morawa.   A.     Particular circumstances of the case         On 9 September 1983 the applicant, represented by counsel, requested the Salzburg Regional Insurance Board (Salzburger Gebietskrankenkasse) to declare that his occupation as a tourist-guide for a travel agency between 1956 and 1983 be qualified as employment requiring affiliation to the Social Security and Unemployment Insurance Scheme.         On 29 February 1984 the Salzburg Regional Insurance Board, having heard the applicant on 31 October 1983, decided that both the Social Security and the Unemployment Insurance Scheme were applicable to the applicant's former professional activity.   The Board held that the contract between the applicant and the travel agency could be assimilated to a contract of employment, as he was bound by general instructions and regularly paid.   In this regard, it referred to the relevant provisions of the Social Security Scheme (Allgemeines Sozialversicherungsgesetz) and the Unemployment Insurance Scheme (Arbeitslosenversicherungsgesetz) (see below, Relevant domestic law).         On 20 March 1984 the travel agency lodged an appeal (Einspruch) against this decision with the Regional Governor of Salzburg (Landeshauptmann).   The Office of the Salzburg Regional Government (Amt der Salzburger Landesregierung) listed the case for a hearing on 30 November 1984.         On 10 December 1984 the Regional Governor of Salzburg, following the hearing on 30 November 1984, confirmed the decision of the Salzburg Regional Insurance Board.         On 19 June 1985, the applicant reached the relevant age for entitlement to an old-age pension.         On 27 November 1985 the Federal Ministry for Social Affairs dismissed the further appeal of the travel agency.         On 28 January 1986, the travel agency lodged an appeal with the Administrative Court, which was received by the Court on 10 February 1986, and requested that the execution of the decision be suspended during the proceedings.         On 24 March 1986 the Administrative Court dismissed the aforementioned request.         On 23 April 1986 the Federal Ministry for Social Affairs provided the Administrative Court with the files.   The travel agency, the Regional Insurance Board and the applicant submitted their observations on 25, 28 and 29 April 1986 respectively.   On 13 November 1986 the travel agency submitted documents relating to proceedings before the Salzburg Labour Court between itself and the applicant concerning the applicant's employment.   The travel agency further submitted the decision of the Appeal Court in these proceedings on 28 January 1987 and the Supreme Court's decision on 25 February 1988.         On 10 November 1988 the Administrative Court quashed the decision of the Federal Ministry for Social Affairs.   It found that the administrative authorities had not sufficiently assessed all relevant evidence and not discussed all the travel agency's arguments.         On 16 January 1989 the Federal Ministry for Social Affairs, having received the Administrative Court's judgment on 9 December 1988, ordered the Office of the Salzburg Regional Government to take additional evidence, including the hearing of several witnesses.         On 13 March 1989 a new hearing relating to the taking of evidence took place before the Salzburg Regional Government.   The applicant and one witness were heard and the parties were consequently requested to comment on the results of these new proceedings.         On 13 April 1989 the Salzburg Regional Government informed the Federal Ministry for Social Affairs that it had not been possible to hear all the witnesses.   However, some of them had submitted written statements.         On 23 June 1989 the applicant filed observations upon the evidence proceedings.         On 3 May 1990 the applicant lodged a complaint with the Administrative Court about the administration's failure to take a decision.         On 15 May 1990 the Administrative Court requested the Federal Ministry for Social Affairs to take a decision within three months or to justify why a decision could not be taken.         On 26 June 1990 the Federal Ministry for Social Affairs upheld the appeal of the travel agency.         On 25 September 1990 the complaint proceedings regarding alleged inactivity were therefore discontinued.         Both the applicant and the Regional Insurance Board of Salzburg lodged appeals against the decision of 26 June 1990 with the Administrative Court.         On 17 September 1991 the Administrative Court dismissed the appeal.   It found that the applicant was not to be considered as an employee but that the contractual relation to the travel agency was more of an independent professional nature.         The judgment was served upon the applicant on 12 November 1991.   B.     Relevant domestic law         According to Section 4 para. 1 (1) of the Social Security Scheme (Allgemeines Sozialversicherungsgesetz) which inter alia governs the payment of pensions and Section 1 para. 1 (1) of the Unemployment Insurance Scheme (Arbeitslosenversicherungsgesetz) only employees are affiliated to the respective Schemes.         Section 4 para. 2 of the Social Security Scheme defines employees as persons working for remuneration in a personally and economically subordinate position (Verhältnis persönlicher und wirtschaftlicher Abhängigkeit); if these characteristics prevail in an independent professional contractual relation, it is also considered as employment.   COMPLAINTS         The applicant complains that the Austrian authorities failed to determine the applicability of the Social Security and Unemployment Insurance Scheme to his case within a reasonable time as required by Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 29 April 1992 and registered on 24 June 1992.         On 12 January 1994 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.         On 22 April 1994, after an extension of the time-limit, the Government submitted their observations.   The observations in reply by the applicant were submitted on 17 June 1994.   THE LAW         The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of proceedings concerning the applicability of the Social Security and Unemployment Insurance Scheme to his case.         Article 6 para. 1 (Art. 6-1), so far as relevant, reads as follows:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within reasonable time ..."         The Government submit that Article 6 (Art. 6) is not applicable to the proceedings at issue, as they were not directly decisive for the applicant's civil rights.   They determined whether the applicant had been an employee within the meaning of S. 4 of the Social Security Scheme.   However, compulsory insurance, which depends on this question, does not in all cases lead to pension benefits or to an increase in such benefits.   Moreover, the proceedings fell in the domain of public law.   The social insurance institutions conducting them are acting as administrative authorities and the social insurance scheme is financed not only by the employer's and the employee's contributions but also by contributions of the Federal Government.   As regards the compliance with Article 6 (Art. 6), the Government submit that the proceedings were extremely complex in fact and in law.   The question whether someone has to be considered as an employee within the meaning of S. 4 of the Social Security Scheme, depends on a whole set of criteria, which necessitated extensive taking of evidence and there was no jurisprudence of the Administrative Court on a comparable case.   Three different administrative authorities and the Administrative Court had jurisdiction to determine the issue.   No unreasonable delays were caused by the competent authorities.         The applicant, referring to the case-law of the Convention organs, submits that Article 6 (Art. 6) is applicable to the social security proceedings at issue, which were directly decisive for his and his employer's obligation to pay contributions, inter alia, to the pension and to the unemployment scheme and for his claim to pension benefits, which were due as of 19 June 1985, when he reached the relevant age for entitlement to an old-age pension.   Further, the applicant submits that an overall duration of more than eight years is unreasonable, in particular with a view to the fact that his right to an old-age pension was at stake.         After an examination of the application in the light of the parties' submissions, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits.   It follows that the application cannot be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)