Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17596/90

by K.I.

against Germany

The European Commission of Human Rights sitting in private

on 14 April 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

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 16 June 1990

by K.I. against Germany and registered on 21 December 1990 under

file No. 17596/90;

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

5 March 1992 and the observations in reply submitted by the

applicant on 4 May 1992 ;

- the decision of 16 May 1992 to adjourn the examination of

the matter pending the Ruiz-Mateos case ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1933 and living

in Dorsten.

The facts of the case, as submitted by the applicant, may

be summarised as follows.

In 1983 the applicant lodged an action with the Labour Court

(Arbeitsgericht) in Düsseldorf claiming a higher staff pension

(Betriebspension) from the defendant company (VEBA AG). The

action was dismissed on 23 May 1984. According to the findings

of the Labour Court the applicant, as employee, and the

defendant's predecessor (Rechtsvorgänger), as employer, had

concluded an employment contract on 16 December 1970. This

contract referred to a Protocol of 1 December 1970

(Zeichnungsprotokoll) according to which the applicant's staff

pension would be calculated on the basis of the amount of his

salary in October 1970. By letter of 15 December 1972 the

applicant had been informed that the defendant company took the

place of his previous employer.

The staff pension eventually paid by the defendant was,

according to the Labour Court, correctly calculated in accordance

with the Protocol of 1 December 1970. Even if, at the relevant

time, the applicant did not know the contents of the Protocol,

he did, as a former employee of a notary (Notariatsgehilfe), have

enough professional experience to realise the importance of the

reference to this text. Therefore the regulations provided for

in the said Protocol had become binding for him. These

regulations were furthermore not affected by any of the grounds

of nullity invoked by the applicant.

The applicant's appeal (Berufung) was rejected by the

Regional Labour Court (Landesarbeitsgericht) in Düsseldorf on 17

May 1985. The Court also dismissed the applicant's supplementary

action (weitergehende Klage). According to the detailed and

extensively reasoned judgment comprising 58 pages, the Regional

Labour Court agreed with the lower court that the Protocol of 1

December 1970 was valid and binding and did not affect the

applicant's expected pension in a disproportionate manner. The

Court added that even if the Protocol did not qualify as a

collective bargaining agreement, its regulations were

nevertheless binding as they had been made part of the

applicant's employment contract.

The Appellate Court refused to grant leave to appeal on

points of law (Revision).

The applicant's objections against the denial of leave to

appeal were rejected by the Federal Labour Court

(Bundesarbeitsgericht) on 19 June 1986 as being inadmissible.

The Court stated that the applicant had not shown that the

judgment complained of was incompatible with important

jurisprudential principles.

On 31 July 1986 the applicant lodged a constitutional

complaint (Verfassungsbeschwerde) which was rejected by a panel

of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 20 December 1989 (served on 28

December 1989) as being partly inadmissible and as offering no

prospects of success as to the remainder. Insofar as the

applicant had complained of the Federal

Labour Court's decision the constitutional complaint was

considered to be unsubstantiated. The same reason applied,

according to the Federal Constitutional Court, to the complaints

that the Labour Court's and the Regional Labour Court's decisions

violated the principle of equality before the law and the

applicant's property right. Insofar as he had invoked violations

of fundamental procedural rights in connection with the

composition of the Regional Labour Court, the Constitutional

Court found that the appointment by that court of lay judges had

been effected in accordance with the Federal Labour Court's

jurisprudence and did not disclose any appearance of

arbitrariness. As to the applicant's complaint that the Protocol

of 1 December 1970 had wrongly been considered to be effective,

although it had been signed by representatives not competent to

act on behalf of the defendant's predecessor, the Constitutional

Court stated that this question could be left undecided as in any

event the Protocol was binding for the defendant company and its

employees and for whom the applicant had worked since 1 January

1973. As to the applicant's complaint that the Regional Court

had wrongly accepted as correct certain other allegations, the

Constitutional Court stated that the reasoning in question was

contained only in an obiter dictum and did not form the basis of

the Regional Court's decision.

Further it is stated that there was nothing to show that the

Regional Labour Court had disregarded any relevant allegation as

to the non-observance of a salary increase of 1 December 1970 and

its effect on the salary system within the defendant company.

Finally, as regards the interpretation and application of

ordinary substantive and procedural law by the Labour Courts, the

Constitutional Court considered that there was no appearance of

any arbitrariness.

COMPLAINTS

The applicant considers that the proceedings before the

Federal Constitutional Court lasted too long. Furthermore he

complains that the Federal Constitutional Court wrongly

considered his complaint about discriminatory treatment to be

unsubstantiated, and that it wrongly denied a violation of

procedural rights on account of the composition of the Regional

Labour Court. He states in the latter respect that the Labour

Court file had gone astray and that it is therefore impossible

for him to find out whether any relevant incorrectness had been

committed in appointing the lay judges. He further submits that

it followed from the material before the Regional Labour Court

that the Protocol of 1 December 1970 had not been signed by

either a competent representative of the defendant company or a

representative of its predecessor. Therefore the Federal

Constitutional Court was wrong to state that no relevant

arguments had been disregarded by the Regional Labour Court in

this respect. He further maintains that contrary to the

Constitutional Court's findings his submissions in the Labour

Court proceedings that a salary increase had been outbalanced by

a suppression of other payments were relevant and had therefore

also wrongly been disregarded.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 June 1990 and

registered on 21 December 1990.

On 2 December 1991 the Commission decided to communicate the

application to the respondent Government under Rule 48 para. 2

(b), of its Rules of Procedure.

The Government's observations were submitted by letter dated

5 March 1992 and the applicant's reply by letter of 4 May 1992.

On 16 May 1992 the Commission decided to adjourn the

proceedings pending the outcome of the Ruiz Mateos case before

the European Court of Human Rights. Judgment in that case was

delivered on 23 June 1993 (Eur. Court H.R.,Ruiz Mateos judgment

of 23 June 1993, Series A no. 262).

THE LAW

1. The applicant mainly complains of the length of the

Constitutional Court proceedings which he instituted on 3 July

1986 and which ended on 20 November 1989. He invokes Article 6

(Art. 6) of the Convention, the relevant part of which reads as

follows:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

The respondent Government contest the applicability of

Article 6 (Art. 6) of the Convention and submit that, in any

event, the proceedings in question did not exceed a reasonable

time.

After a preliminary examination of the facts and the

submissions of the parties, the Commission considers that the

application raises complex factual and legal issues which require

an examination of the merits. The Commission concludes,

therefore, that the application is not manifestly ill-founded

within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring

the application inadmissible have been established.

2. Insofar as the applicant alleges violations of his right

under Article 6 para. 1 (Art. 6-1) to a fair hearing in the

Labour Court proceedings the Commission notes that the Regional

Labour Court examined the applicant's case in a careful and

extensively reasoned manner. The Commission further points out

that it does not have the competence to examine whether errors

of law or fact have been committed by the domestic courts unless

such errors disclose a possible violation of Convention rights.

However, as was already stated by the Federal Constitutional

Court, there is nothing to show that the Regional Labour Court

arbitrarily disregarded relevant arguments or submissions the

cognisance of which would have necessarily led to a judgment in

the applicant's favour. Even if the person who had signed the

decisive Protocol of 1 December 1970 on the defendant company's

behalf had, at the relevant time, not been competent to do so,

there is nothing to show that the defendant company did not find

itself bound throughout the years by the regulations contained

in that Protocol. In these circumstances the Commission does not

see any reason to question the Federal Constitutional Court's

finding that the Regional Labour Court had not disregarded in an

arbitrary manner any relevant arguments in this respect.

The applicant has furthermore not shown that his submissions

relating to alleged discriminatory treatment, overtime payments

and salary increase were of such importance that they would have

justified a decision in his favour had they been correctly

considered and appreciated by the Regional Labour Court.

The Commission concludes that the applicant's submissions

are limited to a criticism of the domestic decisions without

disclosing any appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention. This part of the application

therefore has to be rejected as being manifestly ill-founded

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

Convention.

3. The applicant further alleges a violation of his right that

his case be decided by a "tribunal established in accordance with

the law" as stipulated in Article 6 para. 1 (Art. 6-1) of the

Convention. However the Commission notes that, according to the

Federal Constitutional Court, the Regional Labour Court had

appointed lay judges in accordance with the jurisprudence of the

Federal Labour Court. The applicant has again not shown that

this finding is incorrect and that a substantial and arbitrary

error was committed in connection with the composition of the

chamber of the Regional Labour Court which decided his appeal.

This part of the application has likewise to be rejected as being

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 COMPLAINT ON THE LENGTH OF THE PROCEEDINGS,

ADMISSIBLE without prejuding the merits ;

REJECTS THE REMAINDER OF THE APPLICATION.

Secretary to the Commission President of the

Commission

(H.C. Krüger) (C.A. Nørgaard)

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K.I. v. GERMANY

K.I. v. GERMANY

LEXI