AS TO THE ADMISSIBILITY OF
Application No. 28610/95
by Franz HANDWERKER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
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 22 July 1995 by
Franz HANDWERKER against Germany and registered on 20 September 1995
under file No. 28610/95;
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 1970 and residing in
Traitsching. Before the Commission he is represented by
Mr. G. Althammer, a lawyer practising in Cham.
A. Particular circumstances of the case
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
In 1992 the applicant had a serious accident at work and has been
handicapped ever since. He receives an invalidity pension
(Erwerbsunfähigkeitsrente) under the old age and invalidity pension
scheme of the Social Insurance Code (Reichsversicherungsordnung) and,
in addition, a pension after accident (Unfallrente) under the same Act.
The applicant, assisted by counsel, intended to sue the person
who was responsible for his accident. However, Section 636 and 637 of
the Social Insurance Code excludes a claim for compensation of damages
against a person who had caused an accident at work. On
20 September 1993 the applicant, therefore, introduced a constitutional
complaint to the Federal Constitutional Court (Bundesverfassungs-
gericht), submitting that the above provisions of the Social Insurance
Code were unconstitutional.
On 28 September 1993 the Federal Constitutional Court informed
the applicant that his constitutional complaint would have no prospect
of success. A constitutional complaint directed against a provision
of law as such could only be filed within one year after the law at
issue had entered into force. Since the relevant provisions of the
Social Insurance Code had entered into force long ago, a complaint
about the constitutionality of these provisions could only be raised
indirectly, that is in the context of constitutional complaint
concerning proceedings in which this law has been applied by a court
or other public authority. The applicant did not pursue his
constitutional complaint.
In January 1994, the applicant requested the Weiden Labour Court
(Arbeitsgericht) to grant him legal aid for civil proceedings against
the person who had caused the accident.
On 28 February 1994 the Weiden Labour Court (Arbeitsgericht)
refused to grant legal aid. It found that compensation claims against
a person who had caused an accident at work were excluded by
Sections 636 and 637 of the Social Security Act. The applicant's
action therefore had no prospect of success and legal aid could not be
granted.
On 25 March 1994 the Nuremberg Regional Labour Court
(Landesarbeitsgericht) dismissed the applicant's appeal against the
refusal of legal aid.
On 8 February 1995 the Federal Constitutional Court declined to
deal with the applicant's constitutional complaint for lack of prospect
of success. The Constitutional Court noted that the exclusion of
compensation claims against a person who has caused an accident at work
was justified as the injured person in this particular case was not
only entitled to an invalidity pension but also to a pension after
accident. The pension after accident must be conceived as a substitute
for compensation claims against the person who had caused the accident.
B. Relevant domestic law
According to S. 636 of the Social Insurance Code (Reichs-
versicherungsordnung) the employer is only liable to pay compensation
for personal injury caused by an accident at work to the insured person
working in his enterprise, or to his relatives or surviving dependants,
even if they are not entitled to a pension, if he has wilfully caused
the accident or if the accident happened while the insured person was
participating in general traffic. Any payment which the insured person,
his relatives or surviving dependants receive from the social security
authorities is to be deducted from the compensation claim.
S. 637 provides that, in case of an accident at work, S. 636 also
applies to compensation claims of the insured person, his relatives or
surviving dependants, directed against an employee working in the same
enterprise, if the latter has caused the accident by a work-related
activity.
COMPLAINTS
The applicant complains that if his accident would not have
happened at work or if he had been self employed and not subject to the
general social insurance scheme, he would have had the possibility to
sue the person responsible for the accident for compensation of
damages. He therefore had been discriminated against persons belonging
to these groups. He invokes Articles 2, 5 and 14 of the Convention and
provisions of the European Social Charter.
THE LAW
The applicant complains that he cannot raise a compensation claim
for damages against the person who had caused his accident at work.
In his view, he had been discriminated against persons who had suffered
an accident outside work or who were self employed and not insured
under the general social insurance scheme. He invokes Articles 2, 5
and 14 (Art. 2, 5, 14) of the Convention and provisions of the European
Social Charter.
Insofar the applicant relies on provisions of the European Social
Charter, the Commission recalls that under Article 19 (Art. 19) of the
Convention it is only competent to ensure the observance of the
engagements undertaken by the High Contracting Parties in the present
Convention.
The applicant has also invoked Articles 2, 5 and 14
(Art. 2, 5, 14) of the Convention with regard to the above matter. The
Commission finds that the exclusion of compensation claims may raise
an issue which comes within the ambit of Article 6 para. 1
(Art. 6-1) of the Convention. The Commission therefore finds it
appropriate to examine the application under Article 14 of the
Convention in conjunction with Article 6 para. 1 (Art. 14+6-1) of the
Convention (see No. 10475/83, Dec. 9.10.84, D.R. 39 p. 246).
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
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."
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal established by law."
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention secures to everyone the right to have any claim relating to
his civil rights and obligations brought before a court or tribunal.
In this way the Article embodies a "right to a court", of which the
right of access, that is the right to institute proceedings before a
court in civil matters, constitutes one aspect only (Eur. Court HR,
Fayed v. the United Kingdom judgment of 21 September 1994 Series A no.
294-B, p. 49, para. 65)
The Commission recalls further that for the purpose Article 14
(Art. 14) of the Convention a difference in treatment is discriminatory
only if it has no objective and reasonable justification or if there
is no reasonable relationship of proportionality between the means
employed and the aim sought to be realised (Eur. Court HR, Darby v.
Sweden judgment of 23 October 1990, Series A no. 187, p. 12, para. 31;
Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A
no. 291-B, p. 32, para. 24).
In the present case, the provisions of the Social Insurance Code,
which excludes compensation claims under civil law against the person
who had caused an accident, applied to the applicant's compensation
claim as he had suffered an accident at work. The Federal
Constitutional Court, in its decision of 8 February 1995, found that
the exclusion of compensation claims under the Social Insurance Code
was justified as the injured person was entitled to a pension after
accident which must be conceived as a substitute for compensation
claims.
Having regard to the finding of the Federal Constitutional Court,
the Commission finds that the difference in treatment of persons
insured under the Social Insurance Code and other persons who suffer
an accident is based on an objective and reasonable criterion. In the
Commission's view, the States may take into account the specific
dangers of working situations and may apply different schemes of social
protection to these situations. Moreover, the applicant was not put
into a less advantageous situation than other persons who suffer from
accidents, as he has the benefit of a pension after accident to which
persons, who had an accident outside work or who are not insured under
the Social Insurance Code, are not entitled.
The Commission also finds that there is a reasonable relationship
of proportionality between the means chosen, that is, the pension after
accident replacing the civil action for damages, and the aim of making
special provisions for persons injured in accidents at work. In this
respect, the Commission observes that no-fault pension schemes offer
many advantages when compared to the traditional action for damages,
frequently characterised as time-consuming, costly and uncertain. The
pension scheme, on the other hand, circumvents the inherent
difficulties of establishing negligence by providing immediate and
certain coverage of the needs of all persons injured in an accident at
work who fall within the scheme of the Social Insurance Code
(see No. 10475/83, Dec. 9.10.84, D.R. 39 pp. 246-254).
Accordingly, the applicant has not been discriminated against in
his right of access to a court as guaranteed by Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that in this respect the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy