Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20095/92

by Heinz SUNDERMANN

against Germany

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 April 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 May 1992 by

Heinz SUNDERMANN against Germany and registered on 9 June 1992 under

file No. 20095/92;

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

Karlsruhe. It follows from his statements and the documents submitted

that the applicant has been receiving since 1 January 1981 a monthly

supplementary pension from the Federal Insurance Office

(Versorgungsanstalt des Bundes und der Länder-VBL) paid in addition to

a pension from the Federal Insurance Office for Employees

(Bundesversicherungsanstalt für Angestellte).

The applicant submits that in consequence of amendments of the

VBL pension was in 1985 recalculated and reduced by about 20%, i.e. by

718, - DM. This amount was however not immediately but gradually

deducted from the monthly pension payments. According to the new

regulations the pension is calculated so as to represent 86% of a

fictitious net income the applicant would receive if he were still

active.

The applicant brought an action against the VBL claiming payment

of his original pension.

This action was dismissed by the Karlsruhe Regional Court

(Landgericht) on 14 February 1986. The Court considered that, contrary

to the submission of the plaintiff, the amendments of the statute of

the defendant party were valid and the reduction neither contrary to

the principle of good faith (Treu und Glauben) nor to any higher

ranking law.

This judgment was confirmed on appeal by the Karlsruhe Court of

Appeal (Oberlandesgericht) on 2 April 1987.

An appeal on points of law (Revision) was rejected by the Federal

Court (Bundesgerichtshof) on 20 April 1988.

The Federal Court considered that the amendments of the defendant

party's statutes had become necessary in order to correct a development

which for reasons of social policy was unacceptable. Its aim was to

eliminate serious disturbances of the pension purpose (gravierende

Störungen des Versorgungszwecks). The purpose was a consolidation of

the total of all pension systems (Gesamtheit der Altersicherungs-

systeme) and the effected changes had become necessary in view of the

economic and demographic development.

The bodies entitled to enact amendments of the statutes had a

wide discretionary power which had not been exceeded in the case at

issue.

The applicant then lodged a constitutional complaint

(Verfassungsbeschwerde) which was rejected by a group of three judges

of the Federal Constitutional Court (Bundesverfassungsgerichtshof) on

6 November 1991 as being clearly ill-founded. The applicant states

that this decision was received by his lawyer on 6 December 1991.

The Constitutional Court pointed out that the pension in question

was an additional one (zusätzliche) and it had for reasons of social,

personal and financial policies been considered undesirable that the

beneficiaries received a global retirement payment exceeding their last

former net income. The Court also referred to the jurisprudence of the

Federal Court which had in another matter twice dealt with the issues

raised in the applicant's case and had likewise confirmed the validity

of the amendments of the statutes of the VBL and the consequences

resulting thereby.

Insofar as the Federal Court had with regard to the issues in

question departed to a certain extent from prior jurisprudence the

Constitutional Court considered that case law was not comparable to

statutory law and that it was subject to possible changes. Therefore

the judgments complained of did not violate the right to the protection

of property nor any other constitutional rights.

COMPLAINTS

The applicant complains that the pension reduction constitutes

a violation of his property right. He invokes Article 1 of Protocol

No. 1 to the Convention in connection with Article 14 of the

Convention. He contests the necessity of a reduction of his pension

and considers himself to be discriminated against. He further submits

that his pension right is derived from a private insurance contract and

any reduction of pension contrary to the original insurance contract

would constitute a violation of his property right. He states that

globally the VBL reduced its obligation to pay pensions by 2/3 as a

consequence of the amendments to its statutes.

The applicant further complains that the first instance court

only allowed the lawyers to plead and that the Federal Constitutional

Court likewise did not grant him a fair hearing in that most of his

arguments were disregarded.

THE LAW

1. The Commission has considered the applicant's complaint about the

reduction of his pension under Article 1 of Protocol No. 1 (P1-1) to

the Convention which provides that every person is entitled to the

peaceful enjoyment of his possessions and that no one shall be deprived

of his possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The question as to whether the claim to an old age pension can

be considered as a possession within the meaning of the above provision

has already been examined in the Commission's earlier case-law.

In particular the reduction here in question has been dealt with

in an analogous application (No. 21519/93) which the Commission

rejected as being manifestly ill-founded on 30 June 1993 on the ground

that according to the findings of the domestic courts the pension

adjustment complained of had been effected in accordance with statutory

provisions. Furthermore there was nothing to show that the pension

reduction complained of amounted to an arbitrary and disproportionate

interference with the right to the peaceful enjoyment of possessions.

The arguments submitted by the present applicant do no contain

any elements that could persuade the Commission to depart from its

prior jurisprudence.

It follows that the complaint under Article 1 of Protocol No. 1

(P1-1) to the Convention read also in conjunction with Article 14

(P1-1+14) of the Convention must be rejected in accordance with

Article 27 para. 2 (Art. 27-2) as being manifestly ill-founded.

2. The applicant further complains under Article 6 (Art. 6) of the

Convention that he was not given a fair hearing.

As regards the fairness of the proceedings the Commission notes

however that the domestic courts carefully dealt with the arguments

submitted by the applicant and there is nothing to show that he was

denied a fair hearing or did not have adequate opportunity to plead his

case with the assistance of his counsel.

It follows that the complaint under Article 6 (Art. 6) of the

Convention 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 Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G.H. THUNE)

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SUNDERMANN v. GERMANY

SUNDERMANN v. GERMANY

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