Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28610/95

by Franz HANDWERKER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 22 July 1995 by

Franz HANDWERKER against Germany and registered on 20 September 1995

under file No. 28610/95;

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 applicant is a German citizen, born in 1970 and residing in

Traitsching. Before the Commission he is represented by

Mr. G. Althammer, a lawyer practising in Cham.

A. Particular circumstances of the case

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

In 1992 the applicant had a serious accident at work and has been

handicapped ever since. He receives an invalidity pension

(Erwerbsunfähigkeitsrente) under the old age and invalidity pension

scheme of the Social Insurance Code (Reichsversicherungsordnung) and,

in addition, a pension after accident (Unfallrente) under the same Act.

The applicant, assisted by counsel, intended to sue the person

who was responsible for his accident. However, Section 636 and 637 of

the Social Insurance Code excludes a claim for compensation of damages

against a person who had caused an accident at work. On

20 September 1993 the applicant, therefore, introduced a constitutional

complaint to the Federal Constitutional Court (Bundesverfassungs-

gericht), submitting that the above provisions of the Social Insurance

Code were unconstitutional.

On 28 September 1993 the Federal Constitutional Court informed

the applicant that his constitutional complaint would have no prospect

of success. A constitutional complaint directed against a provision

of law as such could only be filed within one year after the law at

issue had entered into force. Since the relevant provisions of the

Social Insurance Code had entered into force long ago, a complaint

about the constitutionality of these provisions could only be raised

indirectly, that is in the context of constitutional complaint

concerning proceedings in which this law has been applied by a court

or other public authority. The applicant did not pursue his

constitutional complaint.

In January 1994, the applicant requested the Weiden Labour Court

(Arbeitsgericht) to grant him legal aid for civil proceedings against

the person who had caused the accident.

On 28 February 1994 the Weiden Labour Court (Arbeitsgericht)

refused to grant legal aid. It found that compensation claims against

a person who had caused an accident at work were excluded by

Sections 636 and 637 of the Social Security Act. The applicant's

action therefore had no prospect of success and legal aid could not be

granted.

On 25 March 1994 the Nuremberg Regional Labour Court

(Landesarbeitsgericht) dismissed the applicant's appeal against the

refusal of legal aid.

On 8 February 1995 the Federal Constitutional Court declined to

deal with the applicant's constitutional complaint for lack of prospect

of success. The Constitutional Court noted that the exclusion of

compensation claims against a person who has caused an accident at work

was justified as the injured person in this particular case was not

only entitled to an invalidity pension but also to a pension after

accident. The pension after accident must be conceived as a substitute

for compensation claims against the person who had caused the accident.

B. Relevant domestic law

According to S. 636 of the Social Insurance Code (Reichs-

versicherungsordnung) the employer is only liable to pay compensation

for personal injury caused by an accident at work to the insured person

working in his enterprise, or to his relatives or surviving dependants,

even if they are not entitled to a pension, if he has wilfully caused

the accident or if the accident happened while the insured person was

participating in general traffic. Any payment which the insured person,

his relatives or surviving dependants receive from the social security

authorities is to be deducted from the compensation claim.

S. 637 provides that, in case of an accident at work, S. 636 also

applies to compensation claims of the insured person, his relatives or

surviving dependants, directed against an employee working in the same

enterprise, if the latter has caused the accident by a work-related

activity.

COMPLAINTS

The applicant complains that if his accident would not have

happened at work or if he had been self employed and not subject to the

general social insurance scheme, he would have had the possibility to

sue the person responsible for the accident for compensation of

damages. He therefore had been discriminated against persons belonging

to these groups. He invokes Articles 2, 5 and 14 of the Convention and

provisions of the European Social Charter.

THE LAW

The applicant complains that he cannot raise a compensation claim

for damages against the person who had caused his accident at work.

In his view, he had been discriminated against persons who had suffered

an accident outside work or who were self employed and not insured

under the general social insurance scheme. He invokes Articles 2, 5

and 14 (Art. 2, 5, 14) of the Convention and provisions of the European

Social Charter.

Insofar the applicant relies on provisions of the European Social

Charter, the Commission recalls that under Article 19 (Art. 19) of the

Convention it is only competent to ensure the observance of the

engagements undertaken by the High Contracting Parties in the present

Convention.

The applicant has also invoked Articles 2, 5 and 14

(Art. 2, 5, 14) of the Convention with regard to the above matter. The

Commission finds that the exclusion of compensation claims may raise

an issue which comes within the ambit of Article 6 para. 1

(Art. 6-1) of the Convention. The Commission therefore finds it

appropriate to examine the application under Article 14 of the

Convention in conjunction with Article 6 para. 1 (Art. 14+6-1) of the

Convention (see No. 10475/83, Dec. 9.10.84, D.R. 39 p. 246).

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

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

everyone is entitled to a fair ... hearing ... by an independent

and impartial tribunal established by law."

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

Convention secures to everyone the right to have any claim relating to

his civil rights and obligations brought before a court or tribunal.

In this way the Article embodies a "right to a court", of which the

right of access, that is the right to institute proceedings before a

court in civil matters, constitutes one aspect only (Eur. Court HR,

Fayed v. the United Kingdom judgment of 21 September 1994 Series A no.

294-B, p. 49, para. 65)

The Commission recalls further that for the purpose Article 14

(Art. 14) of the Convention a difference in treatment is discriminatory

only if it has no objective and reasonable justification or if there

is no reasonable relationship of proportionality between the means

employed and the aim sought to be realised (Eur. Court HR, Darby v.

Sweden judgment of 23 October 1990, Series A no. 187, p. 12, para. 31;

Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A

no. 291-B, p. 32, para. 24).

In the present case, the provisions of the Social Insurance Code,

which excludes compensation claims under civil law against the person

who had caused an accident, applied to the applicant's compensation

claim as he had suffered an accident at work. The Federal

Constitutional Court, in its decision of 8 February 1995, found that

the exclusion of compensation claims under the Social Insurance Code

was justified as the injured person was entitled to a pension after

accident which must be conceived as a substitute for compensation

claims.

Having regard to the finding of the Federal Constitutional Court,

the Commission finds that the difference in treatment of persons

insured under the Social Insurance Code and other persons who suffer

an accident is based on an objective and reasonable criterion. In the

Commission's view, the States may take into account the specific

dangers of working situations and may apply different schemes of social

protection to these situations. Moreover, the applicant was not put

into a less advantageous situation than other persons who suffer from

accidents, as he has the benefit of a pension after accident to which

persons, who had an accident outside work or who are not insured under

the Social Insurance Code, are not entitled.

The Commission also finds that there is a reasonable relationship

of proportionality between the means chosen, that is, the pension after

accident replacing the civil action for damages, and the aim of making

special provisions for persons injured in accidents at work. In this

respect, the Commission observes that no-fault pension schemes offer

many advantages when compared to the traditional action for damages,

frequently characterised as time-consuming, costly and uncertain. The

pension scheme, on the other hand, circumvents the inherent

difficulties of establishing negligence by providing immediate and

certain coverage of the needs of all persons injured in an accident at

work who fall within the scheme of the Social Insurance Code

(see No. 10475/83, Dec. 9.10.84, D.R. 39 pp. 246-254).

Accordingly, the applicant has not been discriminated against in

his right of access to a court as guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that in this respect 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HANDWERKER v. GERMANY

HANDWERKER v. GERMANY

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