FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10823/05
by Paul STASCH
against Germany
The European Court of Human Rights (Fifth Section), sitting on
16 October 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 March 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Paul Stasch, is a German national who was born in 1926 and lives in Berlin. He is represented before the Court by Mr K. H. Christoph, a lawyer practising in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a citizen of the German Democratic Republic (“GDR”) and worked for the German State Railways of the GDR
(Deutsche Reichsbahn) as an engineer.
He subscribed to the compulsory general pension scheme
(Sozialpflicht-versicherung) and furthermore made contributions to additional pension schemes (Zusatz- und Sonderversorgungssysteme) open to engineers and employees of the State (hauptamtliche Mitarbeiter des Staatsapparates).
Following German Unification on 3 October 1990 the pension rights acquired under the GDR pension system were transferred to the pension system of the Federal Republic of Germany (“FRG”)
(see ”Relevant domestic law” below).
The applicant retired in February 1991.
1. First set of proceedings
On 3 June 1991 the Federal Insurance Fund for Salaried Employees (Bundesversicherungsanstalt für Angestellte – hereinafter referred to as “Insurance Fund”) fixed the amount of the applicant’s pension based on his contributions to the compulsory general pension scheme.
On 11 October 1991 the Insurance Fund fixed the amount of the applicant’s pension pursuant to his contributions to the additional pension schemes.
By decision of 27 November 1991 the Insurance Fund recalculated the applicant’s amount of pension as of 1 January 1992 based on his contributions to the general pension scheme pursuant to section 307 a of Social Code No. 6. However, his contributions to the additional pension schemes were not taken into account.
On 22 January 1992 the applicant inquired, in an appointment with an agent of the Insurance Fund, why those contributions were not considered. Following further inquiries and the Insurance Fund’s continuing inaction, he brought an action in the Berlin Social Court on 8 December 1992 demanding that the Insurance Fund decide upon his objection.
On 18 May 1993 the Insurance Fund recalculated the applicant’s pension also taking into account his contributions to the additional pension schemes.
On 18 August 1993 the Insurance Fund formally rejected the applicant’s objection against the decision of 27 November 1991. The applicant then pursued the proceedings before the Social Court contesting the aforementioned decisions. He demanded a higher amount of pension for the periods both before and after 1 January 1992.
On 9 January 1995 the Berlin Social Court rejected the applicant’s action against the aforementioned decisions as unfounded, but ordered the Insurance Fund to issue a new decision pursuant to section 307 b of
Social Code No. 6. The applicant then lodged an appeal.
On 17 July 1995 the Insurance Fund issued the decision as ordered by the Social Court and that decision became subject of the proceedings pending before the Social Court of Appeal.
On 6 May 1996 the Social Court of Appeal stayed the proceedings in view of another set of proceedings (see “The second set of proceedings”), but quashed that decision upon the applicant’s complaint on
10 December 1996.
On 23 April 1997 the Berlin Social Court of Appeal rejected the applicant’s appeal as unfounded. It held that the amount of pension based on the applicant’s contributions to the additional pension system had been correctly calculated for the period of 1 February to 31 December 1991 taking into account the subsisting GDR pension law. The court therefore concluded that the minimum amount (Zahlbetrag) protected by the Unification Treaty (see “Relevant domestic law” below) had been accurately determined. It furthermore rejected the applicant’s action against the decision of 17 July 1995 as unfounded.
On 3 August 1999 the Federal Social Court quashed the Social Court of Appeal’s judgment insofar it had rejected the applicant’s action against the decision of 17 July 1995 and ordered the Insurance Fund to re-calculate the applicant’s pension as of 1 January 1992. It rejected the remainder of the applicant’s appeal on points of law. In respect of the period between 1 February 1991 and 31 December 1991 the court found that there was no legal basis for the desired increase, since even the still applicable provisions of GDR law would not allow for such an increase.
On 16 November 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint as inadmissible. The court found that the applicant had not exhausted remedies in respect of the amount of his pension as of 1 January 1992, since the final amount of pension for that period had either not been re-calculated yet - as ordered by the Federal Social Court - or in any event had not been subject of the proceedings.
In respect of the applicant’s remaining complaints, namely the amount of his pension for the period from 1 February 1991 to 31 December 1991,
the court found that the applicant’s complaint was unsubstantiated.
2. The second set of proceedings
On 13 March 1995 the Insurance Fund reduced the applicant’s benefits arising under the additional pension schemes in accordance with the provisions of the Transfer law. On an unknown date the applicant lodged an objection. On 30 June 1997 the Insurance Fund issued a new decision partially quashing the reduction. On 18 September 1997 the Insurance Fund rejected the applicant’s objection.
On 26 September 1997 the applicant brought an action in the Berlin Social Court. On 9 March 1998 the Social Court stayed the proceedings awaiting the outcome of a pilot procedure pending before the
Federal Constitutional Court. During the course of the year 2004 the court re-opened the proceedings. On 6 May 2005 the Social Court rejected the applicant’s action as inadmissible stating that a separate action against the reduction of benefits was not called for, since this issue would have to be addressed in proceedings dealing with the amount of pension. The applicant then lodged an appeal and the proceedings appear to be still pending before the Social Court of Appeal.
B. Relevant domestic law
After the GDR’s accession to the FRG the GDR pension system first remained in place. If a pension was already granted, the amount in marks of the GDR was converted into Deutschmarks at a ratio of 1:1.
Furthermore, the Unification Treaty provided for the payment of a minimum payment (Zahlbetragsgarantie). The overall amount of pension derived from the compulsory general pension system and the additional pension systems was not adapted to the development of wages and salaries (Anpassung an die Lohn- und Gehaltsentwicklung).
That system remained in force until 1 January 1992, the date of the entry into force of the Law on the Transfer of Pension Rights
(Gesetz zur Herstellung der Rechtseinheit in der gesetzlichen Renten- und Unfallversicherung - Rentenüberleitungsgesetz). That law was subsequently inserted into the Social Code No. 6 which also entered into force on 1 January 1992. That law also contained the Law on the Transfer of Pension Rights and Future Pension Rights (Anspruchs- und Anwartschaftsüber-führungsgesetz – “Transfer law”) which stipulated that the additional pension systems would be closed. It furthermore provided for the reduction of benefits deriving from the additional pension schemes in certain cases.
Section 307 a of Social Code No. 6 provided for the re-calculation of the pension rights acquired under the general pension scheme and section 307b of Social Code No. 6 in respect of the pension rights acquired under the additional pension schemes.
For a more detailed overview of the GDR pension system and its transfer to the FRG see the Court’s recent decision in the case of Klose and Others (see Klose and Others v. Germany (dec.), no. 12923/03,
25 September 2007).
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention about the amount of his pension. In particular, he argued that his pension rights acquired under the GDR additional pension system had not been correctly transferred to the pension system of the GDR. Furthermore, he complained under Article 6 of the Convention about the length of the proceedings and submitted that he had been denied a fair trial.
THE LAW
1. The applicant complained about the amount of his pension under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention. Those provisions read as follows:
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. 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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 14 of the Convention
The enjoyment of the rights and freedoms set forth in [the] 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.”
As far as the first set of proceedings is concerned the Court notes that the final calculation of the applicant’s pension as of 1 January 1992 has not been the subject of the present proceedings. Therefore, the applicant has not demonstrated that he exhausted domestic remedies.
Insofar as the applicant challenged the calculation of his pension for the period between 1 February and 31 December 1991 the Court recalls that an applicant can only allege a violation of Article 1 if the impugned decisions related to his “possessions”, i. e. either existing possessions or a “legitimate expectation” in this respect. As the Court has stated in its
von Maltzan v. Germany decision, a legitimate expectation must be based either on a legal provision or must have a solid basis in the domestic
case law (see von Maltzan and Others v. Germany [GC], nos. 71916/01, 71917/01 and 10260/02 § 112, ECHR 2005-...). According to the domestic courts in the present case the applicant’s amount of pension had been correctly calculated and there was no legal basis for an increase.
The applicant has been unable to point to any legal provisions or case-law in his favour. Hence the applicant cannot claim to have a legitimate expectation of receiving a pension of an amount going beyond the
legal provisions in force at the material time. The Court therefore concludes the applicant’s complaints are incompatible ratione materiae with the provisions of the Convention and the Protocols thereto.
As regards the second set of proceedings the Court notes that the proceedings are still pending and therefore considers the applicant’s complaints premature in this respect.
The Court thus concludes that the applicant’s complaints should be declared inadmissible pursuant to Article 35 §§1, 3 and 4 of the Convention.
2. As far as the applicant submitted that he had been denied a fair trial, in the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant complained under Article 6 § 1 of the Convention about the overall length of the proceedings. That provision, as far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of the proceedings;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy