Lexploria

The European Commission of Human Rights sitting in private on 5 May

1986, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

M.A. TRIANTAFYLLIDES

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art. 25);

Having regard to the application introduced on 26 April 1984 by K.

against the Federal Republic of Germany and registered on 18

October 1984 under file No. 11203/84;

Having regard to the report provided for in Rule 40 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 is a German citizen born in 1902 and resident in Essen.

He is a retired businessman who receives a pension on the basis of

mostly voluntary contributions to the German Employees' Old Age

Insurance Scheme (gesetzliche Rentenversicherung der Angestellten).

On 25 July 1978, the German legislator enacted the Pensions Adaptation

Act No. 21 (21 Rentenanpassungsgesetz), which deferred from 1 July to

1 January the date of the annual adaptation of the pensions to the

general increase of salaries, thereby omitting the adaptation of 1

January 1978. The Act furthermore abandoned the legislative practice

to calculate the adaptation percentage on the basis of the average

income of the insured. Instead, without such reference, the Act fixed

4.5% as the percentage for the year 1979 and 4% as the percentage for

the years 1980 and 1981, respectively.

In 1979 the applicant lodged a constitutional complaint to the Federal

Constitutional Court alleging that the Act in question violated his

property rights and the principle of equality before the law. The

applicant complained, in particular, about the loss of more than 13%

which he had suffered in comparison with the former legislative

practice. He furthermore pointed at the fact that the civil servants'

pensions were not affected by these changes in legislation.

On 10 May 1983, the plenary Federal Constitutional Court pronounced a

leading decision in a parallel case. The court found that pensions on

the basis of the Old Age Insurance Scheme (gesetzliche

Rentenversicherung) were in their substance guaranteed by the right to

respect for property. The court nevertheless left open the question

whether or not the same protection had to be afforded to the

adaptation of pensions. In view of the fact that in any event the

German legislator had lawfully determined the extent of the right to

respect for property as regards both the date and the modalities of

the adaptation. These changes did not call in question the rôle of

the pension in securing individual freedom. They were also not

disproportionate to the aim achieved, namely to avoid a further

deficit of the pension scheme. This overriding public interest also

justified breaching the insured persons' trust in a continuation of

the former legislative practice. Finally, the court found that the

Act did not violate the principle of equality. In particular, the

decisive aim of the Act in question was to secure the financial basis

of the Old Age Insurance Scheme, whereas there were no financial

problems with the quite different system of the Civil Servants'

Pensions Scheme (Versicherung der Beamten und Angestellten des

offentlichen Dienstes). Thus, a differential treatment between

employees and civil servants was justified.

On 3 November 1983, the Federal Constitutional Court dismissed the

applicant's constitutional complaint as offering no prospects of

success. The court referred to the above-mentioned leading decision.

COMPLAINTS

1. The applicant complains under Art. 1 of Protocol No. 1 (P1-1)

that the Pensions Adaptation Act No. 21 violates his right to peaceful

enjoyment of his possessions.

2. The applicant furthermore alleges a violation of Art. 14

(art. 14) of the Convention in that the German legislator did not at

the same time reduce the pensions of civil servants.

3. Moreover, the applicant complains that the Federal

Constitutional Court rejected his constitutional complaint without a

detailed consideration of his case. He relies on Art. 6, para. 1

(art. 6-1) of the Convention.

THE LAW

1. The applicant complains about the reduction of his pension due

to the Pensions Adaptation Act No. 21 of 1978. He relies on Art. 1 of

Protocol No. 1 (P1-1) which secures to everyone the peaceful

enjoyment of his possessions.

The Commission observes that the Pensions Adaptation Act in question,

as the Federal Constitutional Court pointed out, aimed at

strengthening the financial resources of the general Old Age Pensions

Scheme. The Act did not reduce the pensions paid at that time, but

only deferred and reduced the annual increase of pensions for a period

of three years.

The Commission considers that even assuming that Art. 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 such a person to a pension of a

particular amount. 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. Therefore, only a substantial reduction

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 (see Müller v. Austria, Comm. Report 1.10.75, para. 30-33,

D.R. 3 p. 25).

Consequently, in this respect, the complaint does not disclose any

appearance of a violation of Art. 1 of Protocol No. 1 (P1-1).

It follows that this part of the application is manifestly ill-founded

within the meaning of Art. 27, para. 2 (art. 27-2) of the Convention.

2. The applicant also complains under Art. 14 (art. 14) of the

Convention in connection with Art. 1 of Protocol No. 1 (P1-1)

that the Act in question discriminated against the private employees

and voluntarily insured tradesmen, because it did not reduce the

increase of the pensions paid to civil servants.

The Commission, however, recalls its previous case-law, in which it

has recognised the basic difference between the legal situation of

civil servants and that of self-employed tradesmen and private

employees which can justify, under Art. 14 (art. 14) of the

Convention, that the system adopted by the legislator for retirement

pensions of civil servants is not based on the same principles as the

social insurance schemes for tradesmen and employees (No. 7624/76,

Dec. 6.7.77, D.R. 19 p. 100).

The Commission notes that, in the present case, the regulations at

issue were meant to secure the financial basis of the social insurance

system which was mostly financed by contributions and thereby

basically differed from the civil servants' pensions based on the

principle of support.

The Commission therefore concludes that the special treatment of

social insurance pensions is justified in the light of these

considerations in order to secure a just and secure payment of social

insurance pensions in the future.

In these circumstances, there is no appearance of a violation of

Art. 14 (art. 14) of the Convention combined with Art. 1 of Protocol

No. 1 (P1-1).

It follows that this part of the application is also manifestly

ill-founded within the meaning of Art. 27 para. 2 (art. 27-2) of the

Convention.

3. The applicant has further alleged that the proceedings before

the Federal Constitutional Court violated his right to a fair hearing

as guaranteed by Art. 6 para. 1 (art. 6-1) of the Convention.

However, according to the Commission's jurisprudence, Art. 6 (art. 6)

does not apply to proceedings before a Constitutional Court

(No. 8410/78, Dec. 13.12.79, D.R. 18 p. 216).

This part of the application must therefore be rejected as being

incompatible ratione materiae with the provisions of the Convention

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

For these reaons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commisison

(H.C. KRÜGER) (C.A. NØRGAARD)

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K. v. GERMANY

K. v. GERMANY

LEXI