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AS TO THE ADMISSIBILITY OF

Application No. 18431/91

by Peter BERNSTORFF

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1992, the following members being present:

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

J. A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, 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 28 April 1991 by

Peter Bernstorff against the Federal Republic of Germany and registered

on 1 July 1991 under file No. 18431/91;

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 1939. He is

practising as a lawyer in Hannover.

The applicant complains of his obligatory membership in a

professional social insurance institution and of unfairness of

administrative court proceedings which he unsuccessfully instituted

with a view to being exempted from membership of the institution.

By decision of 3 May 1988 the Hannover Administrative Court

(Verwaltungsgericht) dismissed the action. An appeal was rejected by

the Administrative Court of Appeal (Oberverwaltungsgericht) on

26 March 1990. The court did not grant leave to appeal on points of

law. According to the findings of the courts, the defendant pension

fund had in 1984 reduced the applicant's membership fees to one-tenth

of the maximum social security amount, taking into account that he paid

voluntary contributions to the social insurance system. In addition,

in view of his income situation, the applicant had been exempted from

paying contributions.

The administrative courts pointed out that the defendant

institution, the Lawyers' Pension Fund of Lower Saxony

(Niedersächsisches Versorgungswerk der Rechtsanwälte), had been created

in accordance with an Act of 1982 and that the applicant's obligatory

membership followed from Section 2 (1) of this Act given the fact that

he had been under 45 years of age when the Act came into force.

Referring to the case-law of the Federal Administrative Court

(Bundesverwaltungsgericht), the Administrative Court of Appeal pointed

out that the insurance system in question did not violate any

fundamental rights and was not disproportionate or arbitrary. The

court further held that the obligatory insurance system as applied in

the applicant's case did not violate his personal rights. The fact

that he had no income as a lawyer was irrelevant. It was considered

reasonable and justified that even a lawyer without income remained a

member without having to pay contributions. This made it possible for

him to keep his legal status as an insured person and to reactivate his

rights whenever his income situation improved. As he did not have to

pay any contribution his membership did not in any way affect his

voluntary membership in the social insurance system. Even if in view

of a change in his income situation he would have to pay a minimum

contribution (Solidarbeitrag), he would not have to pay more than

96,20 DM per month. This would not unreasonably affect his economic

situation.

The applicant's complaint about the refusal of leave to appeal

on points of law was rejected by the Federal Administrative Court on

27 August 1990 which in its reasoned decision refers to its own

jurisprudence. The Federal Administrative Court fixed the value of

claim in the amount of 31,332.22 DM. On 16 May 1991 the court

corrected this part of the decision in that it fixed the value of claim

at 4,000 DM.

A constitutional complaint (Verfassungsbeschwerde) was likewise

rejected by a panel of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 24 October 1990 as offering no prospect

of success. The court referred to its jurisprudence according to which

the creation of professional insurance institutions of the kind in

question was compatible with the constitution.

The court added that constitutional rights might be affected

where the obligatory membership appeared to result in compulsory

overinsurance in view of other insurance contracts of the person

concerned or constituted an unreasonable economic burden. None of

these two alternatives were found, particularly in view of the fact

that the applicant was exempted from paying contributions. A violation

of his right to be heard did not follow simply from the fact that the

applicant's legal arguments had been rejected or left aside for reasons

of formal or substantive law. Therefore the courts had not acted

arbitrarily in considering irrelevant the applicant's argument that,

from the point of view of insurance mathematics, the age-limit for

becoming an obligatory member could have been lower.

COMPLAINTS

The applicant mainly complains of his obligatory membership in

the social insurance scheme and the refusal of his request to be

exempted.

The applicant further considers that he was denied a fair hearing

and that the Administrative Court of Appeal for formal reasons did not

take into account his main arguments. The Federal Administrative Court

violated his right to be heard by rejecting, without examining the

merits of his case, his complaint against the refusal of leave to

appeal on points of law. The Federal Administrative Court was biased -

it initially fixed an unreasonable value of claim.

THE LAW

1. In so far as the applicant complains of his obligatory membership

in the social insurance institution his complaint is incompatible with

the Convention ratione materiae as by virtue of its legal nature and

its public functions the insurance institution in question cannot be

considered as an association within the meaning of Article 11 (art. 11)

of the Convention (cf. No. 6054/73, Dec. 6.7.77, D.R. 9, p. 5; Eur.

Court H.R., Lecomte, Van Leuven and De Meyere judgment of 23 June 1981,

Series A No. 43, p. 26 et seq., paras 63-65).

It follows that this complaint is inadmissible under Article 27

para. 2 (art. 27-2) of the Convention.

2. In so far as the applicant complains that his personal request

to be exempted from membership was rejected by the German courts the

Commission points out that it is not competent to examine whether the

domestic courts committed errors of law or fact in deciding upon the

applicant's request except where such errors might have violated

Convention rights.

3. In this conection the Commission notes the applicant's procedural

complaints. It has examined these complaints under Article 6 para. 1

(art. 6-1) of the Convention which guarantees a fair hearing by an

impartial tribunal in the determination of civil rights. However,

assuming that this provision applies, the Commission finds no

indication that substantial and relevant facts or legal arguments

submitted by him in the domestic proceedings have arbitrarily been

disregarded by the competent courts. The Federal Constitutional Court

has rightly pointed out that facts or arguments which for reasons of

formal or substantive law are irrelevant can be disregarded by the

courts. There is furthermore nothing to show that the Federal

Administrative Court arbitrarily rejected the applicant's complaint

about denial of leave to appeal. The court states reasons for its

decision and these reasons are based on jurisprudence. The applicant

has not shown that these reasons are in any way incompatible with

domestic law or arbitrary in view of the particularities of his case.

There is consequently no appearance of a violation of the rights

guaranteed by Article 6 (art. 6) of the Convention in this respect.

As far as the applicant alleges that the Federal Administrative

Court showed bias in fixing a high value of claim, the Commission notes

that the court itself corrected its decision and reduced the value of

claim. These circumstances in no way disclose any appearance of bias.

It follows that this complaint must 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 APPLICATION INADMISSIBLE.

Secretary to the First Chamber Acting President of the First Chamber

(M. de SALVIA) (F. ERMACORA)

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BERNSTORFF v. GERMANY

BERNSTORFF v. GERMANY

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