PROCEDURE

The case originated in an application (no. 35354/04) 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 Austrian national, Dr. Heidemarie Abrahamian (“the applicant”), on 20 September 2004.

The applicant was represented by Mr G. Witt, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The applicant alleged, in particular, that the Administrative Court had failed to hold an oral hearing on her complaint to that court.

On 2 May 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant is a medical practitioner, employed by a public hospital in Vienna and has also a private surgery. She is a member of the Vienna Medical Association (Ärztekammer), a public law body established under the Medical Practitioner’s Act (Ärztegesetz) with compulsory membership. As a member of that association she is also compulsory affiliated to the pension and invalidity fund (Wohlfahrtsfonds) of that Medical Association under the relevant provisions of the Medical Practitioner’s Act.

On 28 April 2000 the Administrative Committee (Verwaltungsausschuss) of the pension and invalidity fund issued an order against the applicant for payment of compulsory contributions for 1999. It applied the statutory rate of contribution of 15.8% as fixed in the statutes of the pension and invalidity fund.

On 9 May 2000 the applicant appealed. She submitted that the calculation was incorrect and that the obligation to pay contributions was unconstitutional.

On 20 July 2000 the Appeal Committee (Beschwerdeausschuss) of the Medical Association dismissed the applicant’s appeal. It stated that the calculation had been correct and that the other issues raised by the applicant were too general or outside the competence of the Appeal Committee.

On 1 September 2000 the applicant filed a complaint with the Constitutional Court. She complained that the decision was arbitrary and breached her right to peaceful enjoyment of her property. She submitted that Section 112 of the Medical Practitioners Act, which allowed for exemption from the liability to pay contributions to the pension and invalidity fund, did not sufficiently allow for private initiatives in ensuring an adequate pension. Also the provisions of the Medical Practitioners Act which provided for compulsory membership and compulsory affiliation to the pension and invalidity fund were in breach of EU-law and a preliminary ruling on that issue should be obtained by the European Court. On 22 May 2002 she supplemented her complaint.

On 26 June 2002 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospect of success. It stated that, at the most, questions of ordinary law could arise in the applicant’s case, but no issues of constitutional law or the law of the European Union. Insofar as the applicant had alleged that the ordinary law applied by the administrative authorities was unconstitutional, the Constitutional Court, referring to its case-law, considered this allegation unfounded.

The applicant filed a request for transfer of the case to the Administrative Court and, on 21 August 2002, the Constitutional Court did so.

On 8 January 2003 the Administrative Court invited the respondent authority to file observations, which it did on 25 January 2003. On 11 April 2003 the applicant replied.

On 23 May 2003 the Administrative Court quashed the appeal decision of 20 July 2000 and remitted the case back to the Appeal Committee. It found that on one point, namely as regards deductible expenses, the Appeal Committee’s decision had not been sufficiently reasoned.

On 15 October 2003 the Appeal Committee decided again, dismissing the appeal.

On 5 December 2003 the applicant filed a further complaint to the Administrative Court, she also requested that a public hearing be held and that suspensive effect be granted. However, at this stage of the proceedings the applicant failed to reiterate her request for referral to the European Court of Justice.

On 16 December 2003 the Administrative Court invited the respondent authority to file observations, which it did so on 6 February 2004.

On 15 March 2004 the applicant submitted further observations. In her further observations she reiterated her request to submit for a preliminary ruling to the European Court the question of the conformity of the compulsory affiliation to the pension and invalidity fund with EU-law.

Meanwhile, on 27 February 2004 the Administrative Court had dismissed the applicant’s complaint without holding a public hearing. It found that the Appeal Committee had correctly calculated the amount of the applicant’s contributions. This decision was served on the applicant’s counsel on 23 March 2004.