AS TO THE ADMISSIBILITY OF
Application No. 29753/96
by Elke and Gerhard MÜLLER-EBERSTEIN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 14 March 1995 by
Elke and Gerhard MÜLLER-EBERSTEIN against Germany and registered on
8 January 1996 under file No. 29753/96;
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 applicants, born in 1940 and 1911, respectively, are German
nationals and a married couple. They are resident at Kochel am See.
In the proceedings before the Commission, they are represented by
MM. T. and W. Weyer, lawyers practising in Bielefeld.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The second applicant is a retired managing clerk of a stock
company. When this company went bankrupt in 1979, a private Pension
Guarantee Fund (Pensions-Sicherungs-Verein), a statutory insurance body
in case of bankruptcy (Träger der gesetzlichen Insolvenzsicherung),
took over the payment of his operational pension (Betriebsrente).
In 1991 the second applicant instituted proceedings before the
Cologne Labour Court (Arbeitsgericht) against the Pension Guarantee
Fund claiming an increase of his operational pension in view of the
general price increments.
On 16 January 1992 the Labour Court dismissed the second
applicant's claim. The Labour Court, having regard to the case-law of
the Federal Labour Court (Bundesarbeitsgericht), observed that
employers had a statutory duty equitably to review operational pensions
every three years. However, this obligation did not generally extend
to statutory insurance bodies which could possibly be requested to pay
an increased pension only in cases of an economic crisis. The
applicant had failed to show any such exceptional circumstances.
On 9 October 1992 the Cologne Labour Court of Appeal
(Landesarbeitsgericht) dismissed the second applicant's appeal
(Berufung). The Labour Court of Appeal confirmed that the defendant
was not obliged to compensate for general price increases. In
particular, the second applicant had failed to show that it had been
his previous employer's constant practice to apply a precise adjustment
of the operational pensions, which would have eventually bound the
defendant.
On 5 October 1993 the Federal Labour Court dismissed the second
applicant's appeal on points of law (Revision). The Court confirmed
the reasoning of the Cologne Labour Court of Appeal. It further
dismissed the second applicant's procedural complaints and considered
in particular that he had failed duly to raise his complaints about
insufficiencies in the taking of evidence.
On 10 March 1994 the applicant lodged a constitutional complaint
(Verfassungsbeschwerde) with the Federal Constitutional Court
(Bundesverfassungsgericht), alleging that the refusal of his claim
infringed his constitutional rights.
Sitting as a panel of three members, on 13 September 1994 the
Second Chamber of the First Senate (zweite Kammer des Ersten Senats)
of the Federal Constitutional Court declined to accept the case for
adjudication. In its summary decision the Federal Constitutional Court
referred to S. 93b, taken in conjunction with S. 93a, of the Federal
Constitutional Court Act (Gesetz über das Bundesverfassungsgericht),
in the version of 11 August 1993. The decision was notified to the
second applicant on 28 September 1994.
The second applicant subsequently complained to the Federal
Constitutional Court about the lack of reasoning in its decision of
13 September 1994. By letter of 20 December 1994 the First Senate
informed the second applicant that, pursuant to S. 93d para. 1, third
sentence, of the Federal Constitutional Court Act, the decision to
decline acceptance of a case did not require any particular reasoning.
It was also noted that the Federal Constitutional Court Act had been
amended in this respect in order to ease its workload. No subsequent
explanations could, therefore, be given.
B. Relevant domestic law
According to Article 93 para. 1 (4a) of the Basic Law
(Grundgesetz) the Federal Constitutional Court rules on constitutional
complaints which may be lodged by any person who considers that the
public authorities have infringed one of his or her fundamental rights
or one of his or her rights as guaranteed under Articles 20 (4), 33,
38, 101, 103 and 104 of the Basic Law.
The composition and functioning of the Federal Constitutional
Court are governed by the Federal Constitutional Court Act.
SS. 90 to 96 concern constitutional complaints. S. 90 para. 1
determines the right to bring such proceedings in line with Article 93
para. 1 (4a) of the Basic Law. In its paragraph 2, it lays down a rule
on the exhaustion of ordinary remedies. Any complaint has to be
reasoned in accordance with S. 92.
S. 93a para. 1 provides that a constitutional complaint requires
acceptance prior to a decision (Annahme zur Entscheidung). According
to paragraph 2 of S. 93a, a constitutional complaint shall be accepted
if (a) it raises questions of fundamental importance from a
constitutional point of view, or (b) if such acceptance is necessary
for the protection of the rights enumerated in S. 90 para. 1; this may
also be the case if the refusal of acceptance would cause the
complainant a particularly serious prejudice. SS. 93b and 93c concern
the distribution of competences between the senates and the chambers.
S. 93d contains further procedural rules, including the rule that the
decision to decline acceptance does not require any particular
reasoning.
S. 95 provides that if a constitutional complaint is upheld, the
decision shall state which provision of the Basic Law has been
infringed and by which act or omission. If a decision is concerned,
the Federal Constitutional Court shall quash the decision.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
about the lack of reasoning in the Federal Constitutional Court's
decision of 13 September 1994.
THE LAW
The application relates to the alleged lack of a sufficient
reasoning in the Federal Constitutional Court's decision of
13 September 1994, according to which it declined to accept the second
applicant's constitutional complaint. The applicants invoke Article 6
para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1), as far as relevant, provides as
follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
The Commission finds that the first applicant, who was not a
party to the German court proceedings, cannot claim to be a victim,
within the meaning of Article 25 (Art. 25), of the alleged breach of
Article 6 (Art. 6) of the Convention.
As regards the second applicant's complaint, the Commission
recalls that proceedings come within the scope of Article 6 para. 1
(Art. 6-1) of the Convention, even if they are conducted before a
constitutional court, where their outcome is decisive for civil rights
and obligations (cf. Eur. Court HR, Süßmann v. Germany judgment of 16
September 1996, para. 41, to be published in Reports 1996). In the
present case the dispute before the labour courts concerned the amount
of the second applicant's operational pension entitlement, which was
of a pecuniary nature and therefore a civil right within the meaning
of Article 6 (Art. 6) (cf. Süßmann judgment, loc cit., para. 42). The
complaint proceedings before the Federal Constitutional Court could
have been directly decisive for the dispute over the second applicant's
civil rights, had the constitutional complaint been accepted for
adjudication and further been successful. However, the Second Section
of the First Division, sitting as a panel of three judges, had declined
to accept the second applicant's constitutional complaint without
giving reasons as to the merits of the submissions made by the second
applicant. The question therefore arises whether these proceedings
involved a "determination" of the second applicant's rights (cf., a
contrario, Süßmann judgment, loc. cit., paras. 43-45). However, this
matter need not be resolved, as this complaint is anyway inadmissible
for the following reasons.
The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges
the courts to give reasons for their judgments, but cannot be
understood as requiring a detailed answer to every argument (cf. Eur.
Court HR, Ruiz Torija and Hiro Balani v. Spain judgments of 9 December
1994, Series A nos. 303 A/B, p. 12, para. 29 and pp. 29-30, para. 27,
respectively). However, the Commission has already found that, if the
relevant domestic law authorises a superior court to reject an appeal
on the ground that it raises no legal issue of fundamental importance
and offers no prospect of success, it may be sufficient for that court
simply to refer to the provision authorising this procedure (cf.
No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240; see also No. 20335/92,
Dec. 6.9.95; and No. 28631/95, Dec. 15.5.96; not published).
In the instant case, the Commission observes that the Federal
Constitutional Court decided to decline acceptance of the second
applicant's case on the basis of S. 93b, in conjunction with S. 93a of
the Federal Constitutional Court Act. In its decision, reference was
made to these legal provisions.
The Commission considers that in these circumstances there is no
appearance that the proceedings before the Federal Constitutional Court
did not comply with Article 6 para. 1 (Art. 6-1).
It follows that 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy