AS TO THE ADMISSIBILITY OF

                         Application No. 21519/93

                         by Otto KUHLMAN

                         against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

             MM.   F. ERMACORA, Acting President of the First Chamber

                   E. BUSUTTIL

                   A.S. GÖZÜBÜYÜK

            Sir   Basil HALL

             Mr.   C.L. ROZAKIS

            Mrs.  J. LIDDY

             MM.   M. PELLONPÄÄ

                   B. MARXER

                   G.B. REFFI

                  B. CONFORTI

          Mrs. M.F. BUQUICCHIO, Secretary to the First 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 3 June 1992 by

Otto Kuhlmann against Germany and registered on 11 March 1993 under

file No. 21519/93;

     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 1920 and living in

Koblenz.

     It follows from his statements and the documents submitted that

on 20 October 1986 the Arbitration Court (Schiedsgericht) of the

Federal Insurance Office (Versorgungsanstalt des Bundes und der Länder-

VBL) dismissed an action brought against the Federal Insurance Office

(VBL) by the applicant.  The applicant had claimed that the Arbitration

Court annul two orders of the defendant by which his pension was

reduced.

     It follows from the judgment that the defendant insurance paid

a monthly pension in the amount of DM 2,042.54 to the applicant as of

1 January 1985.  On 30 April 1985 it recalculated the applicant's

pension claim on the basis of its amended statutes (amendment of

1 January 1985).  Taking into account that the applicant received a

social security pension of DM 2,228.73 it was found that the applicant

could only claim an insurance pension in the amount of DM 1,357.52.

As a consequence the pension payment had to be adjusted in the amount

of DM 685.02 and this would be effective as of the beginning of 1987.

On 31 May 1985 the defendant insurance informed the applicant that as

of 1 July 1985 the adjustable amounts were increased by 3 per cent.

     The Arbitration Court considered that, contrary to the submission

of the plaintiff, the amendments of the statutes of the defendant party

were not illegal.  The court first pointed out that the contractual

relationship between the parties was of a private law nature.

Therefore the jurisprudence of the Federal Court (Bundesgerichtshof)

was considered to be binding according to which statutory amendments

were valid only if they had been agreed upon or had been authorised

previously.  The court considered that the authorisation for the

amendment in question was contained in statutory amendments enforced

since 1 January 1967.  The court also considered that the

authorisation, although contained in various provisions, was

sufficiently clear and that the consequences were foreseeable.  The

court added that the statutory changes in 1967 had become necessary in

view of economic developments which had the consequence of pensions

often equalling or even exceeding the latest income of the insured

persons.  The purpose of the insurance cover offered by the defendant

was however that the insured receive from the defendant party in

addition to already existing social security pension claims an

additional pension by which it should be guaranteed that he received

at least as much as a comparable retired civil servant.  In view of

these principles the statutory amendments in question were

unobjectionable as they tended to avoid that the insureds received a

pension which was excessive in comparison to their latest salary.

     It was furthermore unobjectionable to establish general criteria

for the calculation of the pensions instead of taking into account the

latest income of the individual insured.  This served the purpose of

legal security and speedy processing without having to take into

account various factors like age, family, status etc. in each

individual case.

     The Arbitration Court pointed out that transitional provisions

also existed in order to avoid hardship cases.

     The court also denied a violation of property rights.  It stated

in this respect that pension rights were protected by the guarantee of

property insofar as they were based on important contributions of the

insured person and served the purpose of insuring his existence.

However, even assuming that the first criteria were complied with it

could not be found that a diminution of the pensions to about 90 per

cent of the latest net income could affect the purpose of the pension,

namely to secure the insured's livelihood.

     Finally, with regard to the applicant's personal position, the

court pointed out that his latest net income amounted to DM 3,943.50

having been insured for 32 years his maximum insurance claim amounted

to 88.30 per cent of his latest net income.  He could therefore claim

only a total pension in the amount of DM 3,482.11 or subsequent to the

increase of 3.1 per cent a total of DM 3,586.25.  As the applicant

received a social security pension in the amount of DM 2,228.73 he

could only claim an additional pension from the defendant insurance in

the amount of DM 1,357.52.  Consequently the defendant had correctly

calculated his pension as of 1 January 1985 in the amount of

DM 2,042.54.  The pension paid as of 1 July 1985 was likewise not

incorrectly calculated.

     On 14 April 1989 the Supreme Arbitration Tribunal of the VBL

dismissed the applicant's appeal against the judgment of 20 October

1986 as being unfounded.  This court considered inter alia that the new

regulation did not, insofar as it affected the applicant, result in an

unacceptable hardship situation.

     On 6 November 1991 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected the

applicant's constitutional complaint against the aforementioned

decisions.  In the view of the Federal Constitutional Court the

applicant's complaint was clearly ill-founded.  The decisions

complained of did not disclose any arbitrariness.  Also the property

right was not violated.  Even private law relations which were governed

by the principle of private autonomy were subject to the limits set by

fundamental rights.  Therefore the Federal Court had correctly held

that the changes in the statutory regulations of the defendant

insurance served the purpose of re-adjusting a development which had

become unacceptable from the point of view of social policy.  In

addition the Constitutional Court observed that the principle of

proportionality had been respected.

COMPLAINTS

     The applicant submits that important losses of the Federal

Insurance Office were for years concealed by the management while the

insured persons now have to carry the burden of those losses.  He

mainly complains that his old age pension paid by the Federal Insurance

Office has been reduced.  The formal reason for this was an additional

social security pension but in reality the cut-back became necessary

because of mismanagement.  He considers that Article 1 of Protocol No.

1 is thereby violated as well as Article 14 of the Convention.  He also

alleges a violation of Article 6 of the Convention in the above

proceedings.

THE LAW

     The Commission has considered the applicant's complaint

particularly under Article 1 of Protocol No. 1 (P1-1).  This Article

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 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

it's decision on Application No. 4130/69 against the Netherlands

(Yearbook of the European Convention on Human Rights 14 (1971) at pp.

224, 240) the Commission has expressed the opinion that, while no right

to a pension is as such included in the Convention, the making of

compulsory contributions to a pension fund may, in certain

circumstances, create a property right in a portion of such fund and

that such right might be affected by the manner in which the fund is

distributed.  In the particular case, the Commission denied the

applicability of Article 1 of Protocol No. 1 (P1-1) because under Dutch

legislation a person did not have, at any given moment, an identifiable

share in the fund claimable by him.   In its Report of 1 October 1975

on Application No. 5849/72 (Müller v. Austria, D.R. 3, pp. 25, 31 et

seq.) the Commission extended its reasoning by stating the following:

     "30... The Commission considers that even if it is assumed that

     Article 1 of Protocol No. 1 (P1-1) guarantees persons who have

     paid contributions to a social insurance system the right to

     derive benefit from the system, it cannot be interpreted as

     entitling that pension to a person of a particular amount.

     31.  The operation of a social security system is essentially

     different from the management of a private life 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.  Fluctuations of this kind have

     nothing to do with the guarantee of ownership as a human right...

     32.  It is true that, in some cases, a substantial reducing of

     the amount of the pension could be regarded as affecting the very

     substance of the right to retain the benefit of an old age

     insurance system..."

     The applicant points out that the pension scheme here in question

is not comparable to social security pensions because the relationship

between the Federal Insurance Office and the insured persons is a

purely contractual one and of private law nature.

     However, the applicant has not shown that in his case any

contractual rights were violated and that he was denied a pension in

an amount to which he was entitled under the statutory and/or

contractual rules governing his position in the insurance system of the

Federal Insurance Office.

     It follows from the findings of the domestic courts that the

pension adjustment complained of had been effected in accordance with

binding statutory provisions.  Furthermore, the courts denied a

violation of the applicant's property right stating that the reduction

in question still left the applicant with a total pension amounting to

90% of his latest net income and therefore in no way affected the

purpose of the pension, namely to secure his existence.

     In the light of these considerations and taking into account the

applicant's submissions, the Commission cannot find that the pension

reduction complained of amounts to an arbitrary and disproportionate

interference with the right to the peaceful enjoyment of possessions,

nor is there any appearance of a discrimination in the enjoyment of

this right(cf. No. 10671/83, Dec. 4.3.85, D.R. 42 p. 229).

     Furthermore, even assuming that Article 6 (Art. 6) of the

Convention applies to the proceedings in question, there is nothing to

show that the applicant was denied a fair hearing.

     It follows that the application has to be rejected in accordance

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

     For these reasons the Commission, unanimously

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber          Acting President of the

                                              First Chamber

      (M.F. BUQUICCHIO)                       (F. ERMACORA)