Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20024/92

by Gerhard SÜSSMANN and Irmgard STIELER

against Germany

The European Commission of Human Rights sitting in private on

8 September 1993, 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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

Mr. M. de SALVIA, Deputy 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 and Irmgard Stieler against Germany and registered on

22 May 1992 under file No. 20024/92;

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 facts, as they have been submitted by the applicants, may be

summarised as follows.

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

resident in Karlsruhe. The second applicant, born in 1929, is also a

German national and resident in Düsseldorf. Before the Commission she

is represented by the first applicant.

The applicants, who were both employees in the German civil

service, receive supplementary pensions (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 entitles the employees to receive 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 first applicant's supplementary pension in accordance

with the amended statutes.

The first applicant appealed to the Arbitration Tribunal

(Schiedsgericht) 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 26 August 1988 the applicant filed a constitutional complaint

(Verfassungsbeschwerde) with the Federal Constitutional Court (Bundes-

verfassungsgericht).

On 6 November 1991 the Federal Constitutional Court refused to

admit the first 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 having finally determined

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

order to exhaust remedies.

As regards the first 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 objected to by the first 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 unbearable

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 principle taken by

employers and employed. The wide margin of appreciation in this

context had not been overstepped.

The Constitutional Court found 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 insured person under the statutes in question

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

have any binding effect.

The Constitutional Court also found that the first 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.

The second applicant filed a suit with the Karlsruhe Regional

Court (Landgericht) against the Supplementary Pensions Office claiming

payment of her supplementary pension calculated under the old statute.

On 29 November 1991 the Regional Court dismissed the second applicant's

action. It found that the applicant's claims were partly lodged out

of time and that, in any case, they were unfounded. In this respect

the Regional Court referred to the case-law of the Federal Court of

Justice and the Federal Constitutional Court.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 about

the reduction of their supplementary pension resulting from the

amendment of the statutes of the Supplementary Pensions Office in 1982

and 1984.

2. The applicants complain under Article 6 of the Convention that

there was no fair hearing in the pension cases. The German courts did

not take all relevant arguments into account and did not sufficiently

take evidence. Furthermore, the Arbitration Courts were not

independent.

3. They also complain under Article 6 of the Convention about the

length of the first applicant's proceedings before the Federal

Constitutional Court.

THE LAW

1. The applicants complain about the reduction of their

supplementary pension resulting from the amendment of the statutes of

the Supplementary Pensions Office in 1982 and 1984. They invoke

Article 1 of Protocol No. 1 (P1-1) to the Convention.

The Commission has previously held that the co-ordination of two

pensions in order to prevent cumulation of social benefits does not

violate the right to peaceful enjoyment of possessions, even where one

of the pensions is reduced (No. 10671/83, Dec. 4.3.85, D.R. 42

p. 229).

In the present case, the supplementary pensions paid under the

statutes of the Supplementary Pensions Office were reduced in order to

prevent that payment of the supplementary pension plus normal pension

exceeded the employee's last monthly net income.

The Commission, assuming that the applicants' complaints about

the reduction of their supplementary pensions raise an issue under

Article 1 of Protocol No. 1 (P1-1), considers that the amendment of the

statutes of the Supplementary Pensions Office resulting in such a

reduction of pensions does not amount to a deprivation of property

contrary to Article 1 of Protocol No. 1 (P1-1).

It follows that this complaint is manifestly ill-founded within

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

2. The applicants complain under Article 6 (Art. 6) of the

Convention that there was no fair hearing in the pension cases, in

particular in the proceedings before the Federal Court of Justice. The

German courts did not take all relevant arguments into account and did

not sufficiently take evidence.

The Commission observes that the applicant's submissions mainly

relate to the proceedings before the Federal Court of Justice in the

leading cases.

The Commission, assuming that the applicants are entitled to

raise the alleged unfairness of these proceedings, although they were

not parties, finds that their submissions do not disclose any

appearance of unfairness or arbitrariness.

Consequently, this part of the application is likewise manifestly

ill-founded.

3. Furthermore, the applicants complain under Article 6 para. 1

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

Arbitration Courts.

The Commission considers that the complaint about the lack of

independence and fairness of the Arbitration Courts does not relate to

a tribunal within the meaning of Article 6 para. 1 (Art. 6-1). It

notes that the arbitration procedure under the statutes of the

Supplementary Pensions Office does not exclude remedies before the

civil courts and that it is not compulsory.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

4. As regards the applicants' complaint under Article 6 para. 1

(Art. 6-1) of the Convention about the length of the proceedings before

the Federal Constitutional Court which only concerns the first

applicant who had lodged a constitutional complaint, the Commission

considers that further information is required and accordingly reserves

the admissibility of this part of the application.

For these reasons, the Commission by a majority

1. DECIDES TO ADJOURN THE EXAMINATION OF THE FIRST APPLICANT'S

COMPLAINT ABOUT THE LENGTH OF HIS PROCEEDINGS BEFORE THE FEDERAL

CONSTITUTIONAL COURT;

2. DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

Menu

SÜSSMANN AND STIELER v. GERMANY

SÜSSMANN AND STIELER v. GERMANY

LEXI