Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29753/96

by Elke and Gerhard MÜLLER-EBERSTEIN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 14 March 1995 by

Elke and Gerhard MÃœLLER-EBERSTEIN against Germany and registered on

8 January 1996 under file No. 29753/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, born in 1940 and 1911, respectively, are German

nationals and a married couple. They are resident at Kochel am See.

In the proceedings before the Commission, they are represented by

MM. T. and W. Weyer, lawyers practising in Bielefeld.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicants, may be

summarised as follows.

The second applicant is a retired managing clerk of a stock

company. When this company went bankrupt in 1979, a private Pension

Guarantee Fund (Pensions-Sicherungs-Verein), a statutory insurance body

in case of bankruptcy (Träger der gesetzlichen Insolvenzsicherung),

took over the payment of his operational pension (Betriebsrente).

In 1991 the second applicant instituted proceedings before the

Cologne Labour Court (Arbeitsgericht) against the Pension Guarantee

Fund claiming an increase of his operational pension in view of the

general price increments.

On 16 January 1992 the Labour Court dismissed the second

applicant's claim. The Labour Court, having regard to the case-law of

the Federal Labour Court (Bundesarbeitsgericht), observed that

employers had a statutory duty equitably to review operational pensions

every three years. However, this obligation did not generally extend

to statutory insurance bodies which could possibly be requested to pay

an increased pension only in cases of an economic crisis. The

applicant had failed to show any such exceptional circumstances.

On 9 October 1992 the Cologne Labour Court of Appeal

(Landesarbeitsgericht) dismissed the second applicant's appeal

(Berufung). The Labour Court of Appeal confirmed that the defendant

was not obliged to compensate for general price increases. In

particular, the second applicant had failed to show that it had been

his previous employer's constant practice to apply a precise adjustment

of the operational pensions, which would have eventually bound the

defendant.

On 5 October 1993 the Federal Labour Court dismissed the second

applicant's appeal on points of law (Revision). The Court confirmed

the reasoning of the Cologne Labour Court of Appeal. It further

dismissed the second applicant's procedural complaints and considered

in particular that he had failed duly to raise his complaints about

insufficiencies in the taking of evidence.

On 10 March 1994 the applicant lodged a constitutional complaint

(Verfassungsbeschwerde) with the Federal Constitutional Court

(Bundesverfassungsgericht), alleging that the refusal of his claim

infringed his constitutional rights.

Sitting as a panel of three members, on 13 September 1994 the

Second Chamber of the First Senate (zweite Kammer des Ersten Senats)

of the Federal Constitutional Court declined to accept the case for

adjudication. In its summary decision the Federal Constitutional Court

referred to S. 93b, taken in conjunction with S. 93a, of the Federal

Constitutional Court Act (Gesetz über das Bundesverfassungsgericht),

in the version of 11 August 1993. The decision was notified to the

second applicant on 28 September 1994.

The second applicant subsequently complained to the Federal

Constitutional Court about the lack of reasoning in its decision of

13 September 1994. By letter of 20 December 1994 the First Senate

informed the second applicant that, pursuant to S. 93d para. 1, third

sentence, of the Federal Constitutional Court Act, the decision to

decline acceptance of a case did not require any particular reasoning.

It was also noted that the Federal Constitutional Court Act had been

amended in this respect in order to ease its workload. No subsequent

explanations could, therefore, be given.

B. Relevant domestic law

According to Article 93 para. 1 (4a) of the Basic Law

(Grundgesetz) the Federal Constitutional Court rules on constitutional

complaints which may be lodged by any person who considers that the

public authorities have infringed one of his or her fundamental rights

or one of his or her rights as guaranteed under Articles 20 (4), 33,

38, 101, 103 and 104 of the Basic Law.

The composition and functioning of the Federal Constitutional

Court are governed by the Federal Constitutional Court Act.

SS. 90 to 96 concern constitutional complaints. S. 90 para. 1

determines the right to bring such proceedings in line with Article 93

para. 1 (4a) of the Basic Law. In its paragraph 2, it lays down a rule

on the exhaustion of ordinary remedies. Any complaint has to be

reasoned in accordance with S. 92.

S. 93a para. 1 provides that a constitutional complaint requires

acceptance prior to a decision (Annahme zur Entscheidung). According

to paragraph 2 of S. 93a, a constitutional complaint shall be accepted

if (a) it raises questions of fundamental importance from a

constitutional point of view, or (b) if such acceptance is necessary

for the protection of the rights enumerated in S. 90 para. 1; this may

also be the case if the refusal of acceptance would cause the

complainant a particularly serious prejudice. SS. 93b and 93c concern

the distribution of competences between the senates and the chambers.

S. 93d contains further procedural rules, including the rule that the

decision to decline acceptance does not require any particular

reasoning.

S. 95 provides that if a constitutional complaint is upheld, the

decision shall state which provision of the Basic Law has been

infringed and by which act or omission. If a decision is concerned,

the Federal Constitutional Court shall quash the decision.

COMPLAINTS

The applicants complain under Article 6 para. 1 of the Convention

about the lack of reasoning in the Federal Constitutional Court's

decision of 13 September 1994.

THE LAW

The application relates to the alleged lack of a sufficient

reasoning in the Federal Constitutional Court's decision of

13 September 1994, according to which it declined to accept the second

applicant's constitutional complaint. The applicants invoke Article 6

para. 1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1), as far as relevant, provides as

follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair ... hearing ... by [a] ...

tribunal ..."

The Commission finds that the first applicant, who was not a

party to the German court proceedings, cannot claim to be a victim,

within the meaning of Article 25 (Art. 25), of the alleged breach of

Article 6 (Art. 6) of the Convention.

As regards the second applicant's complaint, the Commission

recalls that proceedings come within the scope of Article 6 para. 1

(Art. 6-1) of the Convention, even if they are conducted before a

constitutional court, where their outcome is decisive for civil rights

and obligations (cf. Eur. Court HR, Süßmann v. Germany judgment of 16

September 1996, para. 41, to be published in Reports 1996). In the

present case the dispute before the labour courts concerned the amount

of the second applicant's operational pension entitlement, which was

of a pecuniary nature and therefore a civil right within the meaning

of Article 6 (Art. 6) (cf. Süßmann judgment, loc cit., para. 42). The

complaint proceedings before the Federal Constitutional Court could

have been directly decisive for the dispute over the second applicant's

civil rights, had the constitutional complaint been accepted for

adjudication and further been successful. However, the Second Section

of the First Division, sitting as a panel of three judges, had declined

to accept the second applicant's constitutional complaint without

giving reasons as to the merits of the submissions made by the second

applicant. The question therefore arises whether these proceedings

involved a "determination" of the second applicant's rights (cf., a

contrario, Süßmann judgment, loc. cit., paras. 43-45). However, this

matter need not be resolved, as this complaint is anyway inadmissible

for the following reasons.

The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges

the courts to give reasons for their judgments, but cannot be

understood as requiring a detailed answer to every argument (cf. Eur.

Court HR, Ruiz Torija and Hiro Balani v. Spain judgments of 9 December

1994, Series A nos. 303 A/B, p. 12, para. 29 and pp. 29-30, para. 27,

respectively). However, the Commission has already found that, if the

relevant domestic law authorises a superior court to reject an appeal

on the ground that it raises no legal issue of fundamental importance

and offers no prospect of success, it may be sufficient for that court

simply to refer to the provision authorising this procedure (cf.

No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240; see also No. 20335/92,

Dec. 6.9.95; and No. 28631/95, Dec. 15.5.96; not published).

In the instant case, the Commission observes that the Federal

Constitutional Court decided to decline acceptance of the second

applicant's case on the basis of S. 93b, in conjunction with S. 93a of

the Federal Constitutional Court Act. In its decision, reference was

made to these legal provisions.

The Commission considers that in these circumstances there is no

appearance that the proceedings before the Federal Constitutional Court

did not comply with Article 6 para. 1 (Art. 6-1).

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MÜLLER-EBERSTEIN v. GERMANY

MÜLLER-EBERSTEIN v. GERMANY

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