Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24077/94

by Dieter MANN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

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 5 January 1994 by

Dieter MANN against Germany and registered on 3 May 1994 under file

No. 24077/94;

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 1921 and living in

Magdeburg. He is represented by Mrs. I. Christoph and

Mr. K.H. Christoph, lawyers practising in Berlin.

It follows from his statements and the documents submitted that

the applicant was practising and teaching medicine as a university

professor in the former German Democratic Republic (GDR).

At the end of September 1989 the applicant retired and received

a pension for the intelligentsia (Altersversorgung für die Intelligenz)

in the amount of 1.740,- M per month. In addition he received a social

security invalidity pension in the amount of 615,- M, including a

supplement for the armed forces. The total of his retirement payments

amounted to 2.430,- M per month.

After German unification the retirement payments were converted

and paid in German Marks (DM).

As from 1 August 1991 the Transitional social security office

(Überleitungsanstalt Sozialversicherung) reduced the applicant's total

pension rights to 2.010,- DM, namely 1.052,- DM invalidity pension

(Invalidenaltersrente) and 758,- DM reduced supplementary pension

(gekürzte Zusatzversorgungsrente).

On 2 December 1991 the applicant was informed that as from 1

January 1992 he continued to receive a pension in the amount of 2.010,-

DM until the definite total amount of his pension rights was fixed in

seperate proceedings.

His opposition (Widerspruch) against these decisions being to no

avail the applicant then brought a social court action claiming a full

old age pension (dynamisierte Altersrente) and in addition an amount

of 1.740,- DM corresponding to his GDR pension for the intelligentsia

(Zusatzversorgungsrente).

The action was dismissed by the Social Court (Sozialgericht) in

Magdeburg on 18 August 1992. The court found that the limitation of

the pension had been lawfully effected in accordance with Section 48

of the Tenth Book of the Social Code (Sozialgesetzbuch, SGB) and

Section 10 (1) no. 1 of the Act (hereinafter referred to as the

"Transformation Act") relating to the transformation of claims and

expectancies based on additional or special pension systems of the

former GDR (Anspruchs- und Anwartschaftsüberführungsgesetz) of

18 December 1991.

On 27 January 1993 this judgment was confirmed by the Federal

Social Court which rejected the applicant's appeal on points of law

([Sprung-]Revision) insofar as the applicant claimed a pension of more

than 2.430,-DM per month.

In its judgment comprising 40 pages this court carefully

examined the applicant's objections against the relevant legislation

and its application in the present case. It found that there existed

no legal basis for the applicant's claim and furthermore the applicant

had no claim vis-à-vis the legislator to enact a law recognising his

alleged pension claim. In fact Section 10 of the Transformation Act

provided for a limitation of pensions which should not exceed 2,010.-

DM. This limitation was aimed at pension claims (Versorgungsansprüche)

which had been granted as a political favour, i.e. which constituted

a political privilege. The underlying idea was that these pensions had

not, at least not in their total amount, been useful for the public

economy. In these circumstances the limitation was neither arbitrary

nor discriminatory taking into account that German unification was in

view of the economic collapse of the former GDR a unique process in

which the legislator enjoyed a large margin of appreciation.

The applicant lodged a constitutional complaint which was

rejected by a group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 7 July 1993 as offering no prospects of

success.

Insofar as the applicant had invoked the property right (Article

14 of the Basic Law - GG) the court found that he had not shown that

his alleged pension claims resulted from substantial contributions

(nicht unerhebliche Eigenleistungen) and that the denial of these

claims substantially affected his basic means of existence

(existenzielle Sicherung).

The applicant had furthermore not shown that he was discriminated

against, i.e. that other groups of persons were treated more

favourably. The social court judgments did not disclose any

arbitrariness and there was no appearance of a violation of

constitutional rights.

Background and present legal situation

The former GDR disposed of an all-embracing social security

system with fixed contribution scales providing for a maximum level of

600,- M. Pension rights accrued after reaching the age limit and

having paid contributions for at lease fifteen years. The minimum

pension depended on the number of years the claimant had worked and in

the end varied between 330,- and 470,- M. The maximum pension amount

was 510,- M .

There also existed a possibility for those whose income exceeded

the maximum level of 600,- M to pay supplementary contributions on a

voluntary basis. The average increase of pension on account of this

regulation amounted to about 70,- M.

In addition to the obligatory social security pension scheme with

the possibility of voluntary added protection there existed additional

pension schemes (Zusatzversorgungssysteme) for members of the state

machinery and mass organisations and the unified trade union (FDGB) as

well as the scientific and technical intelligentsia like medical

doctors, artists, members of the writers union, university professors

etc. The purpose of the additional pension scheme was to ensure to the

persons concerned that their retirement income including the social

security pension amounted to a certain percentage of their last

professional earnings, in general 90% of the last net income. From

1971 onwards certain professions adhering to the additional pension

scheme had to pay contributions but the intelligentsia continued to be

exempt from paying charges. Before German unification some 200,000 to

225,000 people were entitled to payments from the additional pension

scheme. About half of them received no more than 200,- M, while about

800 persons received more than 2.000,- M. Another special pension

scheme existed for civil servants and members of the police and the

armed forces.

Before German unification a Treaty (Staatsvertrag) was concluded

on 18 May 1990 between the FRG and the GDR providing for a trade and

tariff union.

Article 20 (2) of that treaty provided that vested rights and

expectancies (bisher erworbene Ansprüche und Anwartschaften) were

transferred to the social security (werden in die Rentenversicherung

überführt). However payments made on the basis of special regulations

(Sonderregelungen) would be checked for the purpose of suppressing

unjustified or excessive payments (mit dem Ziel ..., ungerechtfertigte

Leistungen abzuschaffen und überhöhte Leistungen abzubauen).

A similar regulation was included in the Unification Treaty of

31 August 1990 (Annexe II, Chapter VIII, subject matter, title III no.

9 lit a to the Treaty). The first sentence of Section 2 (2) of the

above-mentioned Transformation Act (AG) provides accordingly that

vested rights and expectancies relating to pensions for invalidity, old

age and surviving dependants were as of 31 December 1991 transferred

to the social security (Rentenversicherung). The first sentence of

Section 2 (1) of the Transformation Act provides however for a number

of exceptions, i.e. certain pension rights derived from additional

pension schemes (Zusatzversorgungssysteme) are not transferred, i.e.

suppressed.

COMPLAINTS

The applicant considers that the social security orders fixing

the amount of his pension and the social court decisions dismissing his

claims for a higher pension violate Article 1 of Protocol No. 1 also

read in conjunction with Article 14 of the Convention. He submits that

while he did not have to pay contributions in order to receive an

additional pension he nevertheless contributed to the additional

pension fund by way of his work, qualifications and services. He could

therefore trust that the amount of his former GDR pension would be

maintained.

He points out that a substantial part of this pension was

suppressed and argues that there are no justified reasons as the

measure has, in his opinion, in reality a punitive character and

constitutes an act of political revenge.

He considers himself to be discriminated against in comparison

with citizens who have always lived in (the Federal Republic of)

Germany and also in comparison with those citizens of the former GDR

who acquired pension rights by paying supplementary voluntary

contributions. Furthermore he submits that he is being discriminated

against because his pension is not adjusted to the general increase of

the costs of living.

Furthermore, Section 10 (1) No. 1 of the Transformation Act

provides for a provisional limitation of pensions derived from the GDR

social security system and additional pension schemes to 2010, DM.

THE LAW

The applicant submits that the numerical amount of pension he now

receives under the social security system of Germany is lower than the

pension he would have received under the social security system of the

former GDR where he has completed his professional career. He argues

that while he has not contributed to the GDR additional pension scheme

by money payments he nevertheless contributed to the GDR pension fund

by way of his work, qualifications and services. Therefore the fact

that his rights or expectations to a complementary pension under the

former GDR pension system were not maintained in the social security

law of Germany after the German unification amounts in his opinion to

a taking of property in violation of Article 1 of Protocol No. 1 (P1-1)

to the Convention which guarantees the right to the peaceful enjoyment

of possessions.

The Commission first recalls its constant jurisprudence according

to which the right to an old-age pension is not included as such among

the rights and freedoms guaranteed by the Convention. The Commission

has nevertheless recognised that payment of compulsory contributions

to a compulsory pension fund may, in certain circumstances, create a

property right in a portion of such a fund and that such right might

be affected by the manner in which the fund is distributed (see, e.g.,

Müller v. Austria, Comm. Report 1.10.75, D.R.43 p. 25[31] with further

references ; cf. also No. 10094/82, Dec. 14.5.84, D.R. 38 p. 84 [86]).

The Commission notes that, as was also pointed out by the Federal

Constitutional Court, the applicant has not paid any contributions to

the former GDR's complementary pension fund.

He has furthermore, not shown that any capital assets

constituting this fund were gathered by the GDR authorities to the

debit of the adherents and that such assets were taken over by the

Federal Republic and were spent for purposes other than they had been

destined for under the former GDR's social security system.

The Commission further recalls that the operation of a social

security system is essentially different from the management of a

private insurance company. Because of its public importance, the

social security system must take account of political considerations,

in particular those of financial policy. It is conceivable, for

instance, that a deflationary trend may oblige a State to reduce the

nominal amount of pensions (Müller Report, op.cit., p. 32 para. 31).

These considerations apply a fortiori to the present situation

where in consequence of the collapse of the GDR regime and its economy

Germany was faced with the sudden necessity of providing pension

payments to all Germans who have reached the age of retirement and who

have before German unification lived and worked in the former GDR.

Therefore the Unification Treaty contained a regulation providing for

the possibility of reducing or suppressing unjustified or excessive GDR

pension rights. There is nothing to show that this regulation was

arbitrary. Consequently, the applicant has not acquired a valid claim

under the social security system of the Federal Republic of Germany

insofar as the additional pension, to which he was entitled in the

former GDR, is concerned.

Finally it has to be noted that according to the finding of the

Federal Constitutional Court, which was not refuted by the applicant,

the applicant's present pension is not of an insufficient level such

as to deprive him of basic means of existence.

It follows that there is no appearance of a violation of Article

1 of Protocol No. 1 (P1-1) and this part of the application has to be

rejected as being manifestly ill-founded within the meaning of Article

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

The applicant has further alleged that he is a victim of

discrimination in violation of Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).

Even on the assumption that Article 14 (Art. 14) is operative the

Commission finds that the applicant has failed to substantiate his

complaint, in particular he has not shown that in respect of his

present pension right he is treated less favourably than other persons

being in a comparable position (see Eur. Court H.R., van der Mussele

judgment of 23 November 1993, Series A no. 70, p. 22, para 46). First

of all the applicant who has lived and worked during the active part

of his life in the former GDR cannot compare his situation to that of

fellow citizens who have always been members of the social security

system of the Federal Republic. Furthermore his situation is likewise

not comparable to those who lived in the former GDR and contrary to the

applicant paid contributions to a complementary pension system.

Even supposing that comparable situations existed the Commission

considers that the difference of treatment is objectively justified by

the fact that pension rights can be made conditional on the payment of

contributions.

It follows that this part of the application likewise has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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MANN v. GERMANY

MANN v. GERMANY

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