University of Iowa News Release
June 30, 2004
UI Law Professor Participates in European Social Security Reform Lawsuit
As in the United States, European countries are facing their own social security crisis, and a UI law professor is playing a leading role in helping to determine how the problem is addressed in his native Austria.
Alexander Somek, an expert on Austrian and European constitutional law, is on the legal team opposing a reform plan by the Austrian federal government, claiming the reform unfairly discriminates against women. The team, representing the City of Vienna, will file a case before the Austrian Constitutional Court later this summer in an attempt to overturn the plan as unconstitutional.
"Although the law doesn't directly discriminate against women, the effects discriminate indirectly," Somek said. "Women will be worse off as a result if this reform plan is put into effect."
Austria's public retirement pension crisis is the result of an aging population and a declining population of younger workers who can contribute to the funds that the government uses to pay retiree pensions. As a result, the Austrian government is in the midst of enacting several laws to reform the system, mostly by reducing retirement benefits. One plan expands the number of years that a person must work and contribute to the pension system before they can collect full benefits at their own retirement.
However, Somek's team contends that such a reform places an undue financial burden on women who leave their jobs while raising children and, as a result, reduces their lifetime earnings that are used to determine the size of their pension. The suit contends that these women didn't expect to be financially penalized at retirement for taking time off to raise children, so they are unfairly burdened by the reform. As a result, the plan means that men and women are treated differently, which violates the Austrian constitution's guarantee against such differential treatment.
The Austrian Constitutional Court, a court that decides on the constitutionality of the country's laws, will hear arguments in the suit later this year. Somek is hopeful for a favorable outcome because the court heard a case in the 1980s in which it struck down a law as unconstitutional because it indirectly discriminates against women.
"If the court takes its own precedent seriously, I'm hopeful we can win," he said.
Although the decision will affect only Austria, it could have a ripple effect throughout Europe because courts and parliaments in other countries may look to modify the Austrian plan for their own use.
"Many countries speak the same legal language as their neighbors and the courts often consider what other courts do in their own decision making," he said.
The case is unlikely to have any impact in the United States, though. In most western European countries, a retirement pension from the government is considered a constitutional right once it's been established by statute, Somek said. In fact, German courts have gone so far as to declare the pension part of a person's private property. In the U.S., however, a person's Social Security payments are not constitutionally protected.
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