AS TO THE ADMISSIBILITY OF
Application No. 21519/93
by Otto KUHLMAN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 30 June 1993, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 3 June 1992 by
Otto Kuhlmann against Germany and registered on 11 March 1993 under
file No. 21519/93;
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 1920 and living in
Koblenz.
It follows from his statements and the documents submitted that
on 20 October 1986 the Arbitration Court (Schiedsgericht) of the
Federal Insurance Office (Versorgungsanstalt des Bundes und der Länder-
VBL) dismissed an action brought against the Federal Insurance Office
(VBL) by the applicant. The applicant had claimed that the Arbitration
Court annul two orders of the defendant by which his pension was
reduced.
It follows from the judgment that the defendant insurance paid
a monthly pension in the amount of DM 2,042.54 to the applicant as of
1 January 1985. On 30 April 1985 it recalculated the applicant's
pension claim on the basis of its amended statutes (amendment of
1 January 1985). Taking into account that the applicant received a
social security pension of DM 2,228.73 it was found that the applicant
could only claim an insurance pension in the amount of DM 1,357.52.
As a consequence the pension payment had to be adjusted in the amount
of DM 685.02 and this would be effective as of the beginning of 1987.
On 31 May 1985 the defendant insurance informed the applicant that as
of 1 July 1985 the adjustable amounts were increased by 3 per cent.
The Arbitration Court considered that, contrary to the submission
of the plaintiff, the amendments of the statutes of the defendant party
were not illegal. The court first pointed out that the contractual
relationship between the parties was of a private law nature.
Therefore the jurisprudence of the Federal Court (Bundesgerichtshof)
was considered to be binding according to which statutory amendments
were valid only if they had been agreed upon or had been authorised
previously. The court considered that the authorisation for the
amendment in question was contained in statutory amendments enforced
since 1 January 1967. The court also considered that the
authorisation, although contained in various provisions, was
sufficiently clear and that the consequences were foreseeable. The
court added that the statutory changes in 1967 had become necessary in
view of economic developments which had the consequence of pensions
often equalling or even exceeding the latest income of the insured
persons. The purpose of the insurance cover offered by the defendant
was however that the insured receive from the defendant party in
addition to already existing social security pension claims an
additional pension by which it should be guaranteed that he received
at least as much as a comparable retired civil servant. In view of
these principles the statutory amendments in question were
unobjectionable as they tended to avoid that the insureds received a
pension which was excessive in comparison to their latest salary.
It was furthermore unobjectionable to establish general criteria
for the calculation of the pensions instead of taking into account the
latest income of the individual insured. This served the purpose of
legal security and speedy processing without having to take into
account various factors like age, family, status etc. in each
individual case.
The Arbitration Court pointed out that transitional provisions
also existed in order to avoid hardship cases.
The court also denied a violation of property rights. It stated
in this respect that pension rights were protected by the guarantee of
property insofar as they were based on important contributions of the
insured person and served the purpose of insuring his existence.
However, even assuming that the first criteria were complied with it
could not be found that a diminution of the pensions to about 90 per
cent of the latest net income could affect the purpose of the pension,
namely to secure the insured's livelihood.
Finally, with regard to the applicant's personal position, the
court pointed out that his latest net income amounted to DM 3,943.50
having been insured for 32 years his maximum insurance claim amounted
to 88.30 per cent of his latest net income. He could therefore claim
only a total pension in the amount of DM 3,482.11 or subsequent to the
increase of 3.1 per cent a total of DM 3,586.25. As the applicant
received a social security pension in the amount of DM 2,228.73 he
could only claim an additional pension from the defendant insurance in
the amount of DM 1,357.52. Consequently the defendant had correctly
calculated his pension as of 1 January 1985 in the amount of
DM 2,042.54. The pension paid as of 1 July 1985 was likewise not
incorrectly calculated.
On 14 April 1989 the Supreme Arbitration Tribunal of the VBL
dismissed the applicant's appeal against the judgment of 20 October
1986 as being unfounded. This court considered inter alia that the new
regulation did not, insofar as it affected the applicant, result in an
unacceptable hardship situation.
On 6 November 1991 a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected the
applicant's constitutional complaint against the aforementioned
decisions. In the view of the Federal Constitutional Court the
applicant's complaint was clearly ill-founded. The decisions
complained of did not disclose any arbitrariness. Also the property
right was not violated. Even private law relations which were governed
by the principle of private autonomy were subject to the limits set by
fundamental rights. Therefore the Federal Court had correctly held
that the changes in the statutory regulations of the defendant
insurance served the purpose of re-adjusting a development which had
become unacceptable from the point of view of social policy. In
addition the Constitutional Court observed that the principle of
proportionality had been respected.
COMPLAINTS
The applicant submits that important losses of the Federal
Insurance Office were for years concealed by the management while the
insured persons now have to carry the burden of those losses. He
mainly complains that his old age pension paid by the Federal Insurance
Office has been reduced. The formal reason for this was an additional
social security pension but in reality the cut-back became necessary
because of mismanagement. He considers that Article 1 of Protocol No.
1 is thereby violated as well as Article 14 of the Convention. He also
alleges a violation of Article 6 of the Convention in the above
proceedings.
THE LAW
The Commission has considered the applicant's complaint
particularly under Article 1 of Protocol No. 1 (P1-1). This Article
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 whether the claim to an old age pension can be
considered as a possession within the meaning of the above provision
has already been examined in the Commission's earlier case-law. In
it's decision on Application No. 4130/69 against the Netherlands
(Yearbook of the European Convention on Human Rights 14 (1971) at pp.
224, 240) the Commission has expressed the opinion that, while no right
to a pension is as such included in the Convention, the making of
compulsory contributions to a pension fund may, in certain
circumstances, create a property right in a portion of such fund and
that such right might be affected by the manner in which the fund is
distributed. In the particular case, the Commission denied the
applicability of Article 1 of Protocol No. 1 (P1-1) because under Dutch
legislation a person did not have, at any given moment, an identifiable
share in the fund claimable by him. In its Report of 1 October 1975
on Application No. 5849/72 (Müller v. Austria, D.R. 3, pp. 25, 31 et
seq.) the Commission extended its reasoning by stating the following:
"30... The Commission considers that even if it is assumed that
Article 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 that pension to a person of a particular amount.
31. The operation of a social security system is essentially
different from the management of a private life 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. Fluctuations of this kind have
nothing to do with the guarantee of ownership as a human right...
32. It is true that, in some cases, a substantial reducing 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..."
The applicant points out that the pension scheme here in question
is not comparable to social security pensions because the relationship
between the Federal Insurance Office and the insured persons is a
purely contractual one and of private law nature.
However, the applicant has not shown that in his case any
contractual rights were violated and that he was denied a pension in
an amount to which he was entitled under the statutory and/or
contractual rules governing his position in the insurance system of the
Federal Insurance Office.
It follows from the findings of the domestic courts that the
pension adjustment complained of had been effected in accordance with
binding statutory provisions. Furthermore, the courts denied a
violation of the applicant's property right stating that the reduction
in question still left the applicant with a total pension amounting to
90% of his latest net income and therefore in no way affected the
purpose of the pension, namely to secure his existence.
In the light of these considerations and taking into account the
applicant's submissions, the Commission cannot find that the pension
reduction complained of amounts to an arbitrary and disproportionate
interference with the right to the peaceful enjoyment of possessions,
nor is there any appearance of a discrimination in the enjoyment of
this right(cf. No. 10671/83, Dec. 4.3.85, D.R. 42 p. 229).
Furthermore, even assuming that Article 6 (Art. 6) of the
Convention applies to the proceedings in question, there is nothing to
show that the applicant was denied a fair hearing.
It follows that the application has to be rejected in accordance
with Article 27 para. 2 (Art. 27-2) as being manifestly ill-founded.
For these reasons the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber Acting President of the
First Chamber
(M.F. BUQUICCHIO) (F. ERMACORA)
Full & Egal Universal Law Academy