THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 73711/01 by Erna MATHEIS against Germany

The European Court of Human Rig hts (Third Section), sitting on 1 February 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr L. Caflisch , Mr C. Bîrsan , Mr V. Zagrebelsky , Mrs A. Gyulumyan , M r s R. Jaeger, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 23 February 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Erna Matheis, is a German national, who was born in 1923 and lives in St. Ingbert in Germany . She is represented before the Court by the law firm Walter & Kollegen, practising in Saarbrücken in Germany .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant used to work as a bank employee. Since her retirement at the age of 60 on 31 July 1983 , she receives a pension under the statutory old-age insurance scheme ( gesetzliche Rentenversicherung ), an additional pension under a supplementary insurance scheme for bank employees ( Zusatzversicherung ) and an additional monthly allowance granted by her former employer ( Ruhegeld ).

On 21 December 1983 the applicant marrie d a retired civil servant of 73 years of age who - since January 1975 - received a pension under the old-age pension scheme for civil servants ( Beamtenversorgung ).

On 23 January 1994 the applicant ' s husband died. According to Articles 19 and 22 of the Civil Servant ' s Pension Act ( Beamtenversorgungsgesetz , see relevant domestic law below) a civil servant ' s widow, whose marriage has been celebr ated after the civil servant has entered retirement, is not allowed to a regular survivor ' s pension ( Witwengeld ), but to a maintenance allowance ( Unterhaltsbeitrag ) , which is meant to ensure that her overall monthly income reaches at least the amount of the regular survivor ' s pension . It is calculated as follows: From the amount of the regular survivor ' s pension t he competent authorities deduce the widow ' s own earned income ( Erwerbseinkommen ) and income replacements ( Erwerbsersatzeinkommen ), with the exception of an allowance ( Freibetrag ) which amounts to 30 % of the minimum survivor ' s pension.

In the applicant ' s case the competent authority deduced the applicant ' s whole other income, including her pension, her supplementary pension and the additional payments from the original widow ' s allowance. After adding the above- mentioned allowance, this resulted in a remaining monthly payment of 246.36 DEM [approximately 125 EUR].

On 20 November 1995 , following administrative proceedings, the applicant lodged a claim with the Saarland Administrative Court ( Verwaltungsgericht) with the aim to be awarded a higher maintenance allowance. She argued that her own supplementary pension and additional payments could not be regarded as income replacements within the meaning of Article 22 of the Civil Servant ' s Pension Act and could therefore not be taken into account when calculating her monthly allowance as a widow . She further pointed out that under the statutory old-age insurance scheme, additional payments deriving from a private insurance scheme did not diminish the survivor ' s pension, and that the same should apply under the Civil Servant ' s Pension Act.

On 8 October 1997 the Saarland Administrative Court rejected her claim.

On 5 November 1998, following the applicant ' s appeal, the Saarland Administrative Court of Appeal ( Oberverwaltungsgericht ) quashed the Administrative Court ' s judgment and fully granted the applicant ' s claim, finding that the term “income replacement” had to be interpreted in the same way as in the relevant provisions on the statutory old-age insurance scheme and therefore did not include the additional payments received under a private pension scheme.

On 21 October 1999 the Federal Administrative Court ( Bundesverwaltungsgericht ) quashed the Court of Appeal ' s judgment and rejected the applicant ' s claim. According to that court, the relevant provisions had to be interpreted autonomously, because they differed considerably. The statutory old-age insurance only pays pensions and no allowances to widows. Considering the wording as well as the aim of the provision, which was to secure that the widow ' s overall income did reach at least the amount of the regular survivor ' s pension, that court found that all of the applicant ' s monthly income, including her claims under private pension schemes, had to be taken into account. The Federal Administrative Court pointed out that the widow ' s allowance was merely meant to prevent hardships arising from the fact that the applicant was not entitled to a regular survivor ' s pension. It would be in contradiction to th is aim not to take payments under a private pension scheme into account.

On 20 December 1999 the applicant lodged a constitutional complaint. She argued that the Federal Administrative Court had misinterpreted the relevant provisions and that its judgment violated her property rights and her right to equal treat ment under the German Basic Law. On 11 April 2000 the applicant requested the Federal Constitutional Court to seek a preliminary ruling by the Court of Justice of the European Communities as to whether the national legal practice on the assessment of income replac ements complied with Community l aw, in particular with the law on equal treatment.

On 18 August 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant ' s complaint, finding that it was up to the lower instance courts to interpret the law and that the decision in question did not violate any of the applicant ' s rights under the Basic Law. This decision was served on the applicant on 25 August 2000 .

Pensions of civil servants and their surviving spouses are governed by the Civil Servant ' s Pension Act, the relevant provisions of which at the material time read as follows:

Article 19

“A civil servant ' s widow ... receives a survivor ' s pension. This does not apply, if

... 2. the marriage was celebrated after the civil servant had entered retirement and had reached the age of 65 ... ”

Article 22

“If Article 19 § 1 No. 2 applies ... the widow has to be granted a maintenance allowance amounting to the survivor ' s pension. Earned income and income replacements have to be taken into account to an appropriate degree ... ”

The administrative regulations for implementing the Civil Servant ' s Pension Act ( Verwaltungsvorschriften ) provide that an amount of 30 % of the minimum widow ' s pension has to be deduce d from the widow ' s other income when calculating the maintenance allowance.

According to Article 18 (a) subsections 2 and 3 of the fourth volume of the Social Law book ( SGB IV ) - which provides the general definitions for pensions under the statutory old-age insurance scheme - pensions paid under a private insurance scheme are not to be regarded as income replacements and are therefore not to be taken into account when assessing a survivor ' s pension under the statutory old-age insurance scheme.

COMPLAINTS

1. The applicant complained under Article 1 of Protocol No. 1 that the impugned decisions violated her right to the enjoyment of her pension claims.

2. Invoking Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention , the applicant complained that she had been discriminated against when compared to a widow who touched a survivor ' s pension under the statutory old-age insurance scheme and to a widow who had married a civil servant at a time when the latter was still professionally active.

3. Under Article 6 of the Convention, the applicant complained that the Federal Constitutional Court failed to seek a preliminary ruling from the Court of Justice of the European Communities without giving any reasons for this.

THE LAW

1. The applicant complained that the domestic authorities ' decision to take her own pensions - which were based on private pension schemes - into account when calculating her widow ' s allowance violated her right to the enjoyment of her pension claims. The applicant relied on Article 1 of Protocol No. 1, which reads as follows:

“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court recalls that the making of contributions to a pension fund may, in certain circumstances, create a property right asserted un der Article 1 of Protocol No. 1 (see Gaygusuz v. Austria , judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, §§ 39-41; Truhli v. Croatia (dec.), no. 45424/99, 12 December 2000; Wessels ‑ Bergervoet v. the Netherlands (dec.), no. 34462/97, 3 October 2000; Willis v. United Kingdom , no. 36042/97, § 33, ECHR 2002 ‑ IV ).

Assuming that the applicant ' s claim to a widow ' s allowance constitutes a possession within the meaning of Article 1 of Protocol No. 1, the Court reiterates that this provision cannot be interpreted as giving an in dividual a right to a pension of a particular amount. Furthermore, Contracting States enjoy a wide margin of appreciation in regulating their soc ial policy (see Skorkiewicz v. Poland (dec.), no. 39860/98 , 1 June 1999 ; and Truhli, cited above). In view of political and financial considerations and the essentially social character of the payments, a Contracting State cannot be contested the right of taking into account the respective person ' s other sources of income when assessing the amount of the widow ' s allowance (see, mutatis mutandis, Hesse-Anger v. Germany , (dec.) no. 45835/99, 17 May 2001 ). Accordingly, the national decision to diminish the applicant ' s widow ' s allowance with regard to her own private pension claims does not violate her rights under Article 1 of Protocol No. 1.

It follows that this part of the complaint is manifestly ill-founded and must be rejected under Article 35 § 4.

2. The applicant further alleged that she has been discriminated against contrary to Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention , which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicant complained, first, about unequal treatment when compared to persons who are entitled to a survivor ' s pension under the statutory old ‑ age insurance scheme. She pointed out that payments under a private insurance scheme were not taken into account when assessing pensions granted under the statutory old-age in surance and maintained that this difference in treatment was not based on any objective and reasonable justification.

Secondly, she complained about unequal treatment when compared to a widow who had married a civil servant at a time when he was still professionally active. She pointed out that the latter received a full widow ' s pension, whilst her own pension was reduced with respect to her own income.

The Court reiterates, first, that Article 14 of the Convention is applicable if the facts at issue fall with in the ambit of one or more of the other substantive provisions of the Convention and the Protocols (see, among other authorities, Gaygusuz , cited above, § 36).

Assuming applicability of Article 1 of Protocol No. 1 in the present case, the Court reiterates that a difference of treatment is discriminatory for the purposes of Article 14 of the Convention if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting State enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situation justify a different treatment (see , among other authorities , Willis , cited above, § 39).

With respect to the different calculation of survivor ' s pension under the statutory old-age insurance scheme and under the civil servant ' s pension scheme, the Court takes note of the structural difference s between the two systems. While the old-age insurance is based on the contributions made by the insured and the principle of social compensation ( sozialer Ausgleich ), the civil-servant ' s system is based on the principle of maintenance support. As the Convention organs have accepted at several occasions, the considerable differences deriving from this distinction justify different regulations (see Hesse-Anger , cited above, with further references to the case-law of the Commission).

With respect to the applicant ' s further complaint about being treated differently from a widow who had married a civil servant at a time when he was still professionally active, the Court notes the different situation of these surviving spouses, in particular with respect to their own possibility to provide for old age. Taking further into account the fact that the applicant herself had already reached retirement age when marrying her late husband and that she already received several pensions deriving from different sources in her own right, the Court finds the measure to limit her allowance with respect to her other sources of income to fall within the State ' s margin of appreciation.

It follows that this part of the complaint is manifestly ill-founded and must be rejected under Article 35 § 4.

3. The applicant finally complained under Article 6 § 1 of the Convention that the Federal Constitutional Court refused to seek a preliminary ruling by the Court of Justice of the European Communities without giving any reasons for this.

The Court recalls that the Convention does not guarantee, as such, any right to have a case referred to the Court of Justice of the European Communities for a preliminary ruling under Article 234 of the EU Treaty. Nevertheless, refusal of a request for such a referral may infringe the fairness of proceedings if it appears to be arbitrary (see , among other authorities , Bakker v. Austria (dec.), no. 43454/98, 13 June 2002 ; and Schweighofer and Others v. Austria (dec.) nos. 35673/97, 35674/97, 36082/97 and 37579/97, 24 August 1999 ).

The Court notes that the Federal Constitutional Court did not explicitly deal with the applicant ' s request for a preliminary ruling. However, since the Court of Justice does not have jurisdiction to interpret national law or assess its validity, questions referred for a preliminary ruling must concern the interpretation or validi ty of a provision of Community l aw only. As the applicant did not establish that her constitutional complaint related to any relevant question of Community l aw, there is no indication that the Federal Constitutional Court ' s decision not to seek a preliminary ruling was in any way arbitrary.

This complaint has therefore to be rejecte d in accordance with Article 34 § 4 as being manifestly ill-founded within the meaning of § 3 of that same provision.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President