Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20024/92

by Gerhard SÜSSMANN

against Germany

The European Commission of Human Rights sitting in private on

30 August 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 May 1992 by

Gerhard Süssmann against Germany and registered on 22 May 1992 under

file No. 20024/92;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

16 November 1993 and the observations in reply submitted by the

applicant on 18 December 1993;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant, born in 1916, is a German national and resident

in Karlsruhe.

The applicant, who was employed in the German civil service,

receives a supplementary pension (Versorgungsrente). Employees in the

German civil service have a supplementary old age insurance,

administered by the Supplementary Pensions Office (Versorgungsanstalt

des Bundes und der Länder), which authorises entitlement to a

progressive supplementary pension.

In March 1982 and again in March 1984 the statutes of this

pension scheme were amended in order to avoid that the amounts paid

under the general old age pension scheme, plus the amounts paid under

the supplementary pension scheme for the civil service, exceeded the

last net salaries of the employees in the civil service. These

amendments also affected cases where insurance contracts already

existed or pensions were paid. On 16 March 1988, the Federal Court of

Justice (Bundesgerichtshof), in leading cases, confirmed the lawfulness

of the amendment.

On 16 May and 3 June 1988 the Supplementary Pensions Office fixed

the amount of the applicant's supplementary pension in accordance with

the amended statutes.

The applicant appealed to the Arbitration Tribunal (Schieds-

gericht) at the Supplementary Pensions Office. Arbitration was

provided for under the statutes of the Supplementary Pensions Office.

On 20 February 1987 the Arbitration Tribunal dismissed his

appeal. On 10 March 1989 the High Arbitration Court (Oberschieds-

gericht) dismissed his further appeal.

On 11 July 1988 the applicant filed a constitutional complaint

(Verfassungsbeschwerde) with the Federal Constitutional Court (Bundes-

verfassungsgericht). His case was assigned to the Second Chamber of

the First Senate at the Federal Constitutional Court. At that time and

in the following two years other complaints on this matter were lodged;

24 cases raised almost the same issues. The Second Chamber also

conducted proceedings in cases concerning, inter alia, the periods of

notice regarding the dismissal of workers (decided on 30 May 1990), the

right of an employer to lock out workers in the course of strikes

(decided on 26 June 1991), and the constitutional complaints of former

civil servants of the German Democratic Republic regarding a provision

of the Unification Treaty terminating their contracts of employment

(decided on 24 April 1991).

On 6 November 1991 three judges of the Second Chamber of the

First Senate at the Federal Constitutional Court refused to admit the

applicant's constitutional complaint on the ground that it offered no

prospect of success.

The Constitutional Court found that his complaint was

inadmissible to the extent that factual or legal issues could have been

raised in proceedings before the competent lower courts. However, the

remainder of his complaints, in particular about the alleged unfairness

of the proceedings before the Federal Court of Justice and the

violation of his right to property, were admissible. The judgments of

the Federal Court of Justice of 16 March 1988 had finally determined

the factual and legal position, and no further appeals were necessary

in order to exhaust remedies.

As regards the applicant's complaint about unfairness, the

Constitutional Court found no indication that the courts had failed

duly to consider factual submissions as to the amendment of the

statutes concerned. The judgments were mainly based upon two opinions

by expert commissions of September 1975 and November 1983. No further

evidence had to be taken.

The Constitutional Court further stated that, assuming the

pension rights concerned fell within the scope of the constitutional

right to property, there was no indication of a violation of this

right. The pension rights could be reduced by amending the statute

under the rules of private law.

The Constitutional Court noted that the Federal Court of Justice

had found the pensions under the scheme managed by the Supplementary

Pensions Office to be governed by private law. This appreciation had

not generally been disputed by the applicant. The Constitutional Court

further noted that the Federal Court of Justice regarded the pension

insurance as insurance for a group of persons (Gruppenversicherung),

the employer being the insured and the employees the beneficiaries.

The Federal Court of Justice, examining the compliance of the amendment

with the employees' interests, had considered that the amendments had,

in reaction to a socially intolerable development, remedied a serious

interference with the purpose of the supplementary pension. It served

the consolidation of all old age pension schemes and was based upon a

decision of principles taken by employers and employed. The wide

margin of appreciation in this context had not been overstepped.

The Constitutional Court held that these findings of the Federal

Court of Justice did not disclose any violation of constitutional

rights. In particular the interests of the individual employees as

beneficiaries could reasonably be protected by the professional

organisations representing them. Having regard to the general interest

in a solid system of old age pensions which could be financed, a

collective safeguard of the employees' interests appeared appropriate.

The deviation from previous case-law of the Federal Court of Justice

regarding the employee as an insured person under the statutes in

question did not amount to a violation of property rights as the case-

law did not have any binding effect.

The Constitutional Court also found that the applicant's doubts

as to the impartiality of the judges at the arbitration courts were

irrelevant, as they were not part of the judiciary, but arbitration

boards under private law.

The decision was served on 5 December 1991.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

the length of his proceedings before the Federal Constitutional Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 May and registered on

22 May 1992.

On 8 September 1993 the Commission decided to communicate the

applicant's complaint about the length of his proceedings before the

Federal Constitutional Court to the respondent Government for

observations on admissibility and merits.

On 16 November 1993 the Government submitted their observations.

The observations in reply by the applicant were submitted on

18 December 1993.

THE LAW

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

Convention about the length of his complaint proceedings before the

Federal Constitutional Court.

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

"in the determination of his civil rights and obligations and of any

criminal charge against him, everyone is entitled to a ... hearing

within a reasonable time".

The Government submit that Article 6 para. 1 (Art. 6-1) does not

apply to the proceedings before the Federal Constitutional Court.

They consider that the criterion applied in the European Court's

case-law, namely whether or not the Constitutional Court's decision was

capable of affecting the outcome of the case which has been litigated

before the ordinary courts, is inappropriate, as there was no case

conceivable in which the Constitutional Court's decision had no effect

on the proceedings before the ordinary courts. The Constitutional

Court's proceedings would thus always be covered by Article 6 para. 1

(Art. 6-1).

The Government are of the opinion that proceedings before the

Federal Constitutional Court, taking into account its particular

position and tasks under the German Basic Law, could not be regarded

as relating to a dispute over "civil rights and obligations". Rather

the Constitutional Court decided on the constitutional aspects of a

case and not on the merits of the dispute between the parties.

The Government submit in particular that the obligation to decide

within a reasonable time could not be applied to the constitutional

complaint proceedings. Although normally such complaints, if they were

inadmissible or offered insufficient prospect of success, were dealt

with within some weeks or months, they could be delayed because of the

workload of the Federal Constitutional Court, or because of the joinder

of similar cases or the priority to be given to more important cases.

The Government also point out the far-reaching consequences for the

functioning and the structure of the Federal Constitutional Court,

should Article 6 (Art. 6) be regarded as applicable.

Finally, they consider that the applicant's complaint about the

length of his constitutional complaint proceedings is, in any event,

not well-founded. They state that in July 1988 when the applicant

lodged his constitutional complaint and in the following two years

there were several other complaints on these matters, and, in the end,

24 cases raising almost the same issues had to be dealt with

simultaneously. The major part of these cases were terminated in

November 1991, including the applicant's complaint. In the course of

these proceedings the Chamber of the Constitutional Court dealing with

these cases was particularly overburdened with work, and had to conduct

proceedings in more urgent cases concerning, inter alia, the periods

of notice regarding the dismissal of workers (decided on 30 May 1990),

the right of an employer to lock out workers in the course of strikes

(decided on 26 June 1991), and the constitutional complaints of former

civil servants of the German Democratic Republic regarding a provision

of the Unification Treaty terminating their contracts of employment

(decided on 24 April 1991).

The Government's views were contested by the applicant.

The Commission, having regard to the arguments advanced by the

parties on the question of the applicability of Article 6 para. 1

(Art. 6-1) of the Convention to the complaint proceedings before the

Federal Constitutional Court, finds that in the present case this

question raises complex legal issues which cannot be decided at the

admissibility stage, but must be joined to the examination of the

merits of the applicant's complaint. In this respect, the Commission

considers, in the light of the case-law of the Convention institutions

on the question of "reasonable time" (the complexity of the case, the

applicant's conduct and that of the competent authorities), and having

regard to all the information in its possession, that a thorough

examination of this complaint is required, both as to the law and as

to the facts.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SÜSSMANN v. GERMANY

SÜSSMANN v. GERMANY

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