CASE OF ZEMAN v. AUSTRIA
Violation of Art. 14+P1-1;Not necessary to examine P1-1 alone;Pecuniary damage - reserved;Costs and expenses - reserved
Christos Rozakis
8. The applicant was born in 1939 and lives in Vienna. 9. At the time of the events the applicant was a civil servant in the administration of the Vienna Municipality. On 21 June 1988 the applicant’s wife, who was also a civil servant in the administration of the Vienna Municipality, died. During her working life she had paid contributions to the pension scheme established under the Pension Act (Pensionsordnung) and the Pension Allowance Act (Ruhe- und Versorgungsgenuβzulagen-gesetz). 10. By decision of 22 August 1988 the Vienna Municipality (Stadtwerke) granted the applicant a survivor’s pension (Versorgungsgeld- und Versorgungsgeldzulage) under the relevant provisions of the Pension Act of 1966, and the Pension Allowance Act. Section 15 of the Pension Act in force at the relevant time provided for a survivor’s pension in the amount of 60 % of the retirement pension of the applicant’s late wife. Hereto was added a proportionate supplementary allowance under Section 6 of the Pension Allowance Act. 11. According to the transitory provision contained in Article II of the Pension Act the monthly payments to which the applicant was entitled amounted to one-third of the survivor’s pension from 1 July 1988, two-thirds of the survivor’s pension from 1 January 1989 and the full survivor’s pension from 1 January 1995. 12. On 1 January 1995 the fourteenth amendment of the Pension Act of 1966 came into force and Article II became invalid with effect from that day. 13. According to Section 15 of the amended Pension Act the survivor’s pension amounted to between 40 and 60% of the retirement pension of the deceased civil servant, the concrete percentage to be calculated on the basis of the retirement pensions of both spouses. 14. According to Section 64e of the Amended Pension Act, former Section 15 was still applicable to entitlements to a widow’s pension or a pension of a widower who was incapable of gainful employment and indigent, which had been acquired prior to 1 January 1995. 15. On 2 January 1995 the Vienna Municipality reduced the amount of the applicant’s survivor’s pension to 40% of his late wife’s retirement pension. 16. On 16 January 1995 the applicant appealed against this decision. He submitted that, had he been a woman in a similar position, former Section 15 of the Pension Act would have applied to him and he would have been entitled to a survivor’s pension in the amount of 60% of his late wife’s retirement pension instead of the 40% which he received now under the amended Pension Act and the Pension Allowance Act. This violated his constitutional right to equal treatment. 17. On 16 May 1995 the Appeals Board of the Vienna Municipality (Berufungssenat) dismissed the appeal. 18. On 13 July 1997 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). 19. On 8 October 1997 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success. 20. On 19 December 2001 the Administrative Court (Verwaltungs-gerichtshof) to which the case had been transferred upon the applicant’s request, dismissed the applicant’s complaint. 21. It referred, inter alia, to case-law of the Constitutional Court concerning similar provisions of the Pension Act 1965. The Constitutional Court had found that in the light of continuing change in attitudes towards the equality of sexes, an exclusion of a widower from survivor’s payments would, as a rule, constitute a violation of the principle of equal treatment. 22. There was, however, no constitutional concern about provisions which, in the course of an adjustment process, provided for equal rights of widows and widowers to a survivor’s pension as of a certain date, but maintained differences as regards the entitlement to survivor’s pensions acquired prior to that date. This decision was served on the applicant’s counsel on 25 January 2002. 23. In its 1986 version the relevant provisions of the Vienna Pension Act (Pensionsordnung für Wien, LGBl Nr. 34/1986) read as follows: "The surviving spouse of a civil servant is entitled to a monthly pension if the civil servant himself had such a claim on the day of his death, or if he would have had such a claim upon retirement on that day." “ A survivor’s pension shall amount to 60 % of the civil servant’s retirement pension......” "The monthly instalments to which the widower or the former husband are entitled, are - from 1 August 1986 onwards the amount of one third; - from 1 January 1989 onwards the amount of two thirds; - and from 1 January 1995 onwards the full amount. If the widower or former husband is incapable of gainful employment and indigent, this restriction does not apply." 24. On 1 January 1995, when the fourteenth amendment to the Pension Act came into force, the relevant provisions of this Act were amended as follows: “1. A survivor’s pension shall amount to a certain percentage of the civil servant’s retirement pension ... 3. ...the percentage shall lie between 40 and 60 ...” “Provided the entitlement [to a survivor’s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable - to the survivor’s pension of a widow... - to the survivor’s pension of a widower, if he is incapable of gainful employment and indigent.....” 25. The Pension Act has meanwhile repeatedly been amended. Current Section 72 § 1 reads: “Provided the entitlement [to a survivor’s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable - to the survivor’s pension of a widow... - to the survivor’s pension of a widower, if he is incapable of gainful employment and indigent.....” 26. Section 6 of the Pension Allowance Act (Ruhe- und Versorgungs-genuβzulagengesetz) grants a survivor entitled to a survivor’s pension [under the Pension Act] a supplementary pension allowance amounting to a certain percentage of the civil servant’s retirement supplementary allowance. The percentage corresponds to the percentage relied on when calculating the survivor’s pension under the Pension Act.