L.B. v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, L.B., is an Austrian national of Hungarian origin, born in 1939 and living in Maria Enzersdorf (Austria). He is represented before the Court by Mr R. Armster, a lawyer practising in Maria Enzersdorf. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant has lived in Austria since 1971 and obtained Austrian citizenship in 1979. On 9 October 1991 he filed a request with the Employees Pension Insurance Office (Pensionsversicherngsanstalt der Angestellten) to pay contributions under Section 227 of the General Social Security Act (Allgemeines Sozialversicherungsgesetz - “ASVG”) for the time he had been at school and had studied in Hungary. On 18 March 1992 the Employees Pension Insurance Office dismissed the request. It found that the applicant had not shown that he had undergone a period of training as specified by Section 227 ASVG. On 26 August 1992 the Regional Governor of Lower Austria (Landeshauptmann) dismissed the applicant’s appeal. He noted that periods of training in foreign countries were not mentioned in S. 227 ASVG. Therefore it was not possible to pay contributions for these periods. On 6 April 1993 the applicant filed a complaint with the Constitutional Court claiming that the above decision violated the principle of equality (Gleichheitssatz). On 15 June 1993 the Constitutional Court refused to entertain the applicant’s complaint for lack of prospect of success. It referred to its previous case-law on Section 227 § 1 ASVG, according to which territorial restraints (territoriale Beschränkung) of the social security system were in accordance with the Federal Constitution: Just as being employed in Austria was a legitimate requirement for participation in the social pensions scheme, the substitute requirement of having undergone training in Austria - and not abroad - was the same. Upon the applicant’s request it transferred the case to the Administrative Court. On 22 November the applicant supplemented his complaint to the Administrative Court. He argued that although the wording of Section 227 § 1 (1) ASVG explicitly mentioned attending a school in Austria as a condition this criterion should rather be construed as to mean training for a diploma which is subsequently recognised by Austria authorities. On 24 June 1997 the Administrative Court dismissed the applicant’s complaint. It rejected the applicant’s argument and found that the wording of Section 227 § 1 (1) ASVG was clear and unambiguous and required that such training be attended in Austria. It was reasonable to enable backpayments into the pension scheme for periods of pre-professional training only in cases when, without such training, the person concerned would have been employed in Austria and would have contributed to the Austrian social pension system. The Austrian social pension scheme is based on the principle that pension rights are acquired by contributions during a person’s employment (Beitragszeiten). Section 227 of the General Social Security Act also provides for the possibility to pay pension contributions for certain periods during which a person was not gainfully employed. By paying such contributions a person acquires pension rights and – when he or she retires – receives a higher pension. Section 227 § 1 of the Act defines these latter periods (Ersatzzeiten). As to periods of training, the provision only includes periods during which a person has attended an Austrian secondary school or university (inländische mittlere Schule oder Hochschule).