AS TO THE ADMISSIBILITY OF
Application No. 24116/94
by Rudolf FIEDLER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the 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 1994 by
Rudolf FIEDLER against Germany and registered on 10 May 1994 under file
No. 24116/94;
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 1926 and living in
Schöneiche. He is represented by Mrs. I. Christoph and Mr. K.-H.
Christoph, lawyers practising in Berlin.
It follows from his statements and the documents submitted that
the applicant was practising and teaching medicine as a university
professor in the former German Democratic Republic (GDR).
At the end of September 1989 the applicant retired and received
a pension for the intelligentsia (Altersversorgung für die
Intelligenz)of 3.296,- M. per month.
In addition he received a social security invalidity pension in
the amount 942,- M, including a supplement for the Armed Forces. The
total of his retirement payments amounted to 4.238,- M per month.
After German unification the retirement pensions were converted
and paid in German Marks (- DM).
As from 1 August 1991 the Transitional social security office
(Überleitungsanstalt Sozialversicherung) reduced the applicant's total
pension rights to 2.010,- DM, namely 1.728,- DM as a social security
pension (Sozialversicherung) and 282,- DM as a supplementary pension
(gekürzte Zusatzversorgungsrente).
On 28 November 1992 the applicant was informed that as from
1 December 1992 he continued to receive a pension in the amount of
2.010,- DM although a calculation in abbreviated proceedings
(pauschaliertes Verfahren) resulted in a lower amount. However, until
the final recalculation (Neuberechnung) of the pension which could not
be claimed before January 1994 he would receive as much as in 1991.
His opposition (Wiederspruch) against these decisions being to
no avail the applicant then brought a social court action claiming a
full old-age pension (dynamisierte Altersrente) and in addition an
amount of 3.296,- DM corresponding to his GDR pension for the
intelligentsia (Zusatzversorgnungsrente).
The action was dismissed by the Social Court (Sozialgericht) in
Frankfurt/Oder on 24 June 1992. The court found that the limitation
of the pension had been lawfully effected in accordance with Section
48 of the Tenth Book of the Social Code (Sozialgesetzbuch, SGB) and
Section 10 (1) no. 1 of the Act (hereinafter referred to as the
"Transformation Act") relating to the transformation of claims and
expectancies based on additional or special pension systems of the
former GDR (Anspruchs und Anwartschaftsüberführungsgesetz) of
18 December 1991.
On 27 January 1993 this judgment was confirmed by the Federal
Social Court which rejected the applicant's appeal on points of law
([Sprung-]Revision) insofar as the applicant claimed a pension in the
total amount of 4.238,- DM.
In its judgment comprising 40 pages this court carefully
examined the applicant's objections against the relevant legislation
and its application in the present case. It found that there existed
no legal basis for the applicant's claim and furthermore the applicant
had no claim vis-à-vis the legislator to enact a law recognising his
alleged pension claim. In fact Section 10 of the Transformation Act
provided for a limitation of pensions which should not exceed
2.010, DM. This limitation was aimed at pension claims
(Versorgungsansprüche) which had been granted as a political favour,
i.e. which constituted a political privilege. The underlying idea was
that these pensions had not, at least not in their total amount, been
useful for the public economy. In these circumstances the limitation
was neither arbitrary nor discriminatory taking into account that
German unification was in view of the economic collapse of the former
GDR a unique process in which the legislator enjoyed a large margin of
appreciation.
The applicant lodged a constitutional complaint which was
rejected by a group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 7 July 1993 as offering no prospects of
success.
Insofar as the applicant had invoked the property right (Article
14 of the Basic Law - GG) the court found that he had not shown that
his alleged pension claims resulted from substantial contributions
(nicht unerhebliche Eigenleistungen) and that the denial of these
claims substantially affected his basic means of existence
(existenzielle Sicherung).
The applicant had furthermore not shown that he was discriminated
against, i.e. that other groups of persons were treated more
favourably. The social court judgments did not disclose any
arbitrariness and there was no appearance of a violation of
constitutional rights.
Background and present legal situation
The former GDR disposed of an all-embracing social security system
with fixed contribution scales providing for a maximum level of 600,-
M. Pension rights accrued after reaching the age limit and having paid
contributions for at lease fifteen years. The minimum pension depended
on the number of years the claimant had worked and in the end varied
between 330,- M and 470,- M. The maximum pension amount was 510,- M.
There also existed a possibility for those whose income exceeded
the maximum level of 600,- M to pay supplementary contributions on a
voluntary basis. The average increase of pension on account of this
regulation amounted to about 70,- M.
In addition to the obligatory social security pension scheme with
the possibility of voluntary added protection there existed additional
pension schemes (Zusatzversorgungssysteme) for members of the state
machinery and mass organisations and the unified trade union (FDGB) as
well as the scientific and technical intelligentsia like medical
doctors, artists, members of the writers union, university professors
etc. The purpose of the additional pension scheme was to ensure to the
persons concerned that their retirement income including the social
security pension amounted to a certain percentage of their last
professional earnings, in general 90% of the last net income. From
1971 onwards certain professions adhering to the additional pension
scheme had to pay contributions but the intelligentsia continued to be
exempt from paying charges. Before German unification some 200,000 to
225,000 people were entitled to payments from the additional pension
scheme. About half of them received no more than 200,- M, while about
800 persons received more than 2.000,- M. Another special pension
scheme existed for civil servants and members of the police and the
armed forces.
Before German unification a Treaty (Staatsvertrag) was concluded
on 18 May 1990 between the FRG and the GDR providing for a trade and
tariff union.
Article 20 (2) of that treaty provided that vested rights and
expectancies (bisher erworbene Ansprüche und Anwartschaften) were
transferred to the social security (werden in die Rentenversicherung
überführt). However payments made on the basis of special regulations
(Sonderregelungen) would be checked for the purpose of suppressing
unjustified or excessive payments (mit dem Ziel ..., ungerechtfertigte
Leistungen abzuschaffen und überhöhte Leistungen abzubauen).
A similar regulation was included in the Unification Treaty of
31 August 1990 (Annexe II, Chapter VIII, subject matter, title III no.
9 lit a to the Treaty). The first sentence of Section 2 (2) of the
above-mentioned Transformation Act (AG) provides accordingly that
vested rights and expectancies relating to pensions for invalidity,
old-age and surviving dependants were as of 31 December 1991
transferred to the social security (Rentenversicherung). The first
sentence of Section 2 (1) of the Transformation Act provides however
for a number of exceptions, i.e. certain pension rights derived from
additional pension schemes (Zusatzversorgungssysteme) are not
transferred, i.e. suppressed.
COMPLAINTS
The applicant considers that the social security orders fixing the
amount of his pension and the social court decisions dismissing his
claims for a higher pension violate Article 1 of Protocol No. 1 also
read in conjunction with Article 14 of the Convention. He submits that
while he did not have to pay contributions in order to receive an
additional pension he nevertheless contributed to the additional
pension fund by way of his work, qualifications and services. He could
therefore trust that the amount of his former GDR pension would be
maintained.
He points out that a substantial part of this pension was
suppressed and argues that there are no justified reasons as the
measure has, in his opinion, in reality a punitive character and
constitutes an act of political revenge.
He considers himself to be discriminated against in comparison
with citizens who have always lived in the Federal Republic of Germany
and also in comparison with those citizens of the former GDR who
acquired pension rights by paying supplementary voluntary
contributions. Furthermore he submits that he is being discriminated
against because his pension is not adjusted to the general increase of
the costs of living.
Furthermore, Section 10 (1) No. 1 of the Transformation Act
provides for a provisional limitation of pensions derived from the GDR
social security system and additional pension schemes to 2.010,- DM.
THE LAW
The applicant submits that the numerical amount of pension he now
receives under the social security system of (the Federal Republic of)
Germany is lower than the pension he would have received under the
social security system of the former GDR where he has completed his
professional career. He argues that while he has not contributed to
the GDR additional pension scheme by money payments he nevertheless
contributed to the GDR pension fund by way of his work, qualifications
and services. Therefore the fact that his rights or expectations to
a complementary pension under the former GDR pension system were not
maintained in the social security law of Germany after the German
unification amounts in his opinion to a taking of property in violation
of Article 1 of Protocol No. 1 (P1-1) to the Convention which
guarantees the right to the peaceful enjoyment of possessions.
The Commission first recalls its constant jurisprudence according
to which the right to an old-age pension is not included as such among
the rights and freedoms guaranteed by the Convention. The Commission
has nevertheless recognised that payment of compulsory contributions
to a compulsory pension fund may, in certain circumstances, create a
property right in a portion of such a fund and that such right might
be affected by the manner in which the fund is distributed (see, e.g.,
Müller v. Austria, Comm. Report 1.10.75, D.R.43 p. 25[31] with further
references ; cf. also No. 10094/82, Dec. 14.5.84, D.R. 38 p. 84 [86]).
The Commission notes that, as was also pointed out by the Federal
Constitutional Court, the applicant has not paid any contributions to
the former Gar complementary pension fund.
He has furthermore, not shown that any capital assets constituting
this fund were gathered by the GDR authorities to the debit of the
adherents and that such assets were taken over by the Federal Republic
and were spent for purposes other than they had been destined for under
the former Gar social security system.
The Commission further recalls that the operation of a social
security system is essentially different from the management of a
private 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 (Müller Report, op.cit., p. 32 para. 31).
These considerations apply a fortiori to the present situation
where in consequence of the collapse of the GDR regime and its economy
(the Federal Republic of) Germany was faced with the sudden necessity
of providing pension payments to all Germans who have reached the age
of retirement and who have before German unification lived and worked
in the former GDR. Therefore the Unification Treaty contained a
regulation providing for the possibility of reducing or suppressing
unjustified or excessive GDR pension rights. There is nothing to show
that this regulation was arbitrary. Consequently, the applicant has
not acquired a valid claim under the social security system of the
Federal Republic of Germany insofar as the additional pension, to which
he was entitled in the former GDR, is concerned.
Finally it has to be noted that according to the finding of the
Federal Constitutional Court, which was not refuted by the applicant,
the applicant's present pension is not of an insufficient level such
as to deprive him of basic means of existence.
It follows that there is no appearance of a violation of Article
1 of Protocol No. 1 (P1-1) and this part of the application has to be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
The applicant has further alleged that he is a victim of
discrimination in violation of Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).
Even on the assumption that Article 14 (Art. 14) is operative the
Commission finds that the applicant has failed to substantiate his
complaint, in particular he has not shown that in respect of his
present pension right he is treated less favourably than other persons
being in a comparable position (see Eur. Court H.R., van der Mussele
judgment of 23 November 1993, Series A no. 70, p. 22, para 46). First
of all the applicant who has lived and worked during the active part
of his life in the former GDR cannot compare his situation to that of
fellow citizens who have always been members of the social security
system of the Federal Republic. Furthermore his situation is likewise
not comparable to those who lived in the former GDR and contrary to the
applicant paid contributions to a complementary pension system.
Even supposing that comparable situations existed the Commission
considers that the difference of treatment is objectively justified by
the fact that pension rights can be made conditional on the payment of
contributions.
It follows that this part of the application likewise has to be
rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention as being manifestly ill-founded.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy