AS TO THE ADMISSIBILITY OF
Application No. 20457/92
by Hermann HAUSSLER
against Germany
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr.K. ROGGE, 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 1 April 1992 by
Hermann HAUSSLER against Germany and registered on 10 August 1992 under
file No. 20457/92;
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 1921 and living in
Munich. It follows from his statements and the documents submitted
that the applicant has been receiving since 1 January 1982 a monthly
supplementary pension in the amount of DM 3,200.40 from the Federal
Insurance Office (Versorgungsanstalt des Bundes und der Länder-VBL).
On 30 April 1985 VBL informed the applicant that the pension had
been recalculated on the basis of its amended statutes (19th amendment
of 1 January 1985). The newly calculated pension amounted to DM
2,497.36. However the difference of DM 703.04 would only gradually be
deducted as from 1987 onwards in six steps amounting to each equalling
1/6th DM 117.17. The reduction was effected on the ground that
pensions in general exceeded the last net income of the pensioners
which they received at the time of their retirement. The pensions had
therefore been recalculated in such a manner as to represent a certain
percentage of a fictitious net salary.
In "mid 1985" the applicant brought an action against the VBL
claiming payment of his original pension.
This action was dismissed by the Karlsruhe Regional Court
(Landgericht) on 14 February 1986. The detailed reasons stated on more
than 20 pages in the judgment can be summarised to the effect that,
contrary to the submission of the plaintiff, the amendments of the
statute of the defendant party were valid and the reduction neither
contrary to the principle of good faith (Treu und Glauben) nor to any
higher ranking law.
This judgment was confirmed on appeal by the Karlsruhe Court of
Appeal (Oberlandesgericht) on 3 November 1988.
An appeal on points of law (Revision) was rejected by the Federal
Court (Bundesgerichtshof) on 20 September 1989.
The applicant then lodged a constitutional complaint
(Verfassungsbeschwerde) which was rejected by a group of three judges
of the Federal Constitutional Court (Bundesverfassungsgericht) on
6 November 1991 as being clearly ill-founded.
The Constitutional Court pointed out that the pension in question
was an additional one (zusätzliche) and it had for reasons of social,
personal and financial policies been considered undesirable that the
beneficiaries received a global retirement payment exceeding their last
former net income. The Court also referred to the jurisprudence of the
Federal Court which had in another matter twice dealt with the issues
raised in the applicant's case and had likewise confirmed the validity
of the amendments of the statutes of the VBL and the consequences
resulting therefrom.
Insofar as the Federal Court had with regard to the issues in
question departed to a certain extent from prior jurisprudence the
Constitutional Court considered that case-law was not comparable to
statutory law and that it was subject to possible changes. Therefore
the judgments complained of did not violate the right to the protection
of property nor any other constitutional rights.
COMPLAINTS
The applicant complains that the Federal Constitutional Court did
not grant him a fair hearing in that most of his arguments were
disregarded. Furthermore he considers that the matter was not decided
within a reasonable time.
He also invokes Article 1 of Protocol No. 1 to the Convention in
connection with Article 14 of the Convention. He contests the
necessity of a reduction of his pension and considers himself to be
discriminated against. He further submits that his pension right is
derived from a private insurance contract and any reduction of pension
contrary to the original insurance contract would constitute a
violation of his property right.
THE LAW
1. The Commission has considered the applicant's complaint about the
reduction of his pension under Article 1 of Protocol No. 1 (P1-1) to
the Convention which provides that every person is entitled to the
peaceful enjoyment of his possessions and that 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 question as to whether the claim to an old age pension can
be considered a possession within the meaning of the above provision
has already been examined in the Commission's earlier case-law.
In particular the reduction here in question has been dealt with
in an analogous application (No. 21519/93) which the Commission
rejected as being manifestly ill-founded on 30 June 1993 on the ground
that according to the findings of the domestic courts the pension
adjustment complained of had been effected in accordance with statutory
provisions and that there was nothing to show that the pension
reduction complained of amounted to an arbitrary and disproportionate
interference with the right to the peaceful enjoyment of possessions.
The arguments adduced by the present applicant do not contain any
elements that could persuade the Commission to depart from its previous
jurisprudence.
It follows that the complaint under Article 1 of Protocol No. 1
(P1-1) to the Convention must be rejected in accordance with Article
27 para. 2 (Art. 27-2) as being manifestly ill-founded.
2. The applicant further complains under Article 6 (Art. 6) of the
Convention that he was not given a fair hearing.
Article 6 para. 1 (Art. 6-1) provides:
" In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law .... "
The Commission notes however that the domestic courts in first
and second instance carefully dealt with the arguments submitted by the
applicant and there is nothing to show that he was denied a fair
hearing or did not have adequate opportunity to plead his case.
It follows that the complaint under Article 6 (Art. 6) of the
Convention about the unfairness of the proceedings likewise has to be
rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention as being manifestly ill-founded.
3. The applicant's last complaint is that his pension claim was not
determined within a reasonable time as required by Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission finds that it cannot, on the basis of the file,
determine the admissibility of the applicant's last complaint at this
stage and considers that it is therefore necessary, in accordance with
Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give
notice of this complaint to the respondent Government.
For these reasons, the Commission by a majority
- DECIDES TO ADJOURN its examination of the complaint about the
length of the proceedings;
- DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy