Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15408/89

by B.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 27 May 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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 6 July 1989

by B. against the Federal Republic of Germany and registered

on 28 August 1989 under file No. 15408/89;

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 of the case, as they have been submitted by the

applicant, may be summarised as follows:

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

in Solingen.

In 1981, in the context of divorce proceedings, the Solingen

District Court (Amtsgericht), decided upon the spouses' pension

splitting (Versorgungsausgleich) under S. 1587 b of the Civil Code

(Bürgerliches Gesetzbuch) and transferred part of the applicant's

future pension rights (Rentenanwartschaften), about DM 517 per month

at the time in question, to his divorced wife's pension account at the

Rheinprovinz Insurance Office (Landesversicherungsanstalt).

Since September 1981 the applicant has received a monthly

pension of about DM 1,107, his divorced wife was paid about DM 812.

The applicant's divorced wife died in November 1984.

On 21 December 1984 the Rheinprovinz Insurance Office dismissed

the applicant's request to be paid the full amount of his pension. The

Office found that the conditions of S. 4 para. 2 of the Act concerning

the Settlement of Undue Hardships in Pension Splitting (Gesetz zur

Regelung von Härten im Versorgungsausgleich) were not met.

According to S. 4 para. 2 of the above Act a pension splitting

in the context of divorce proceedings will be undone, if the divorced

spouse deceases before having received any payments, or having

received less than twice the yearly amount of her pension, related to

the end of pension payments.

The applicant's wife had received altogether about DM 25,213,

whereas the limit within the meaning of S. 4 para. 2 of the above Act

was about DM 14,907.

On 21 July 1987 the Düsseldorf Social Court (Sozialgericht)

dismissed the applicant's action for payment of his full pension. His

appeal on points of law (Revision) was dismissed by the Federal Social

Court (Bundessozialgericht) on 21 July 1987.

On 5 July 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) dismissed the applicant's constitutional complaint

(Verfassungsbeschwerde). The Constitutional Court found that S. 4

para. 2 of the above-mentioned Act was consistent with the Basic Law

(Grundgesetz), in particular the guarantee of property.

The Constitutional Court recalled that, in its previous

decision concerning the reform of the divorce law, in particular the

pension splitting, the legislator had been ordered to pass legislation

in order to avoid undue hardships which could possibly arise if a

divorced spouse having received pension rights dies after having been

paid the pension in question for only a short period.

The Constitutional Court considered that the solution found in

S. 4 para. 2 of the above Act was not arbitrary nor disproportionate

to the aim pursued, namely to limit the expenses for the old age

pension schemes. In this respect, the Constitutional Court noted that

the interference with the pension rights concerned took place at the

time of the pension splitting in the context of the spouses' divorce

and was justified under Article 6 para. 1 (protection of marriage and

family) and Article 3 para. 2 (equal rights of men and women) of the

Basic Law. Subsequent to such a pension splitting, two seperate

relationships concerning the divorced spouses' pension rights

existed. Having regard to the social aspects of an old age insurance

scheme, limitation of a re-transfer of pension rights as provided for

in S. 4 para. 2 did not appear unreasonable.

COMPLAINTS

The applicant complains that the part of his pension rights

which had been transferred to the pension account of his belated wife

upon divorce were not transferred back to his account upon her death.

He does not invoke any provision of the Convention.

THE LAW

The applicant complains about the decisions taken by the

German authorities in his case under S. 4 para. 2 of the Act

concerning the Settlement of Undue Hardships in Pension Splitting.

The Commission has examined this complaint under Article 1 of

Protocol No. 1 (P1-1) to the Convention which provides in its first

paragraph:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. 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 Commission recalls that a right to a pension is not as

such guaranteed by the Convention. In certain circumstances, the

payment of contributions to a pension fund may create a property right

in a portion of such a fund and a modification of the pension rights

under such a system could in principle raise an issue under Article 1

of Protocol No. 1 (P1-1) to the Convention. However, even assuming that

Article 1 of Protocol No. 1 (P1-1) guarantees a person who has paid

contributions to a special insurance system the right to derive

benefit from the system, it cannot be interpreted as entitling that

person to a pension of a particular amount (cf. No. 5849/72, Müller v.

Austria, Comm. Report 1.10.75, paras. 30 - 33, D.R. 3 p. 25).

In the present case pension rights were transferred from the

applicant's pension account to his belated wife's account upon their

divorce in 1981. Following her death in 1984 the Rheinprovinz

Insurance Office refused to re-transfer these pension rights on the

ground that the applicant did not meet the conditions of S. 4

para. 2 of the Act concerning the Settlement of Undue Hardships in

Pension Splitting.

The Commission, assuming that the applicant's complaint about

S. 4 para. 2 of the above Act raises an issue under Article 1 of

Protocol No. 1 (P1-1), considers that the limitations on a re-transfer of

pension rights which had been subject to a pension splitting in

divorce proceedings do not amount to deprivation of property contrary

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

The Commission finds that in the circumstances of the present

case there is no appearance of a violation of Article 1 of Protocol

No. 1 (P1-1), nor of any other provision of the Convention. It

follows that the application is manifestly ill-founded within the

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

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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