AS TO THE ADMISSIBILITY OF
Application No. 20095/92
by Heinz SUNDERMANN
against Germany
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
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 22 May 1992 by
Heinz SUNDERMANN against Germany and registered on 9 June 1992 under
file No. 20095/92;
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
Karlsruhe. It follows from his statements and the documents submitted
that the applicant has been receiving since 1 January 1981 a monthly
supplementary pension from the Federal Insurance Office
(Versorgungsanstalt des Bundes und der Länder-VBL) paid in addition to
a pension from the Federal Insurance Office for Employees
(Bundesversicherungsanstalt für Angestellte).
The applicant submits that in consequence of amendments of the
VBL pension was in 1985 recalculated and reduced by about 20%, i.e. by
718, - DM. This amount was however not immediately but gradually
deducted from the monthly pension payments. According to the new
regulations the pension is calculated so as to represent 86% of a
fictitious net income the applicant would receive if he were still
active.
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 Court considered 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 2 April 1987.
An appeal on points of law (Revision) was rejected by the Federal
Court (Bundesgerichtshof) on 20 April 1988.
The Federal Court considered that the amendments of the defendant
party's statutes had become necessary in order to correct a development
which for reasons of social policy was unacceptable. Its aim was to
eliminate serious disturbances of the pension purpose (gravierende
Störungen des Versorgungszwecks). The purpose was a consolidation of
the total of all pension systems (Gesamtheit der Altersicherungs-
systeme) and the effected changes had become necessary in view of the
economic and demographic development.
The bodies entitled to enact amendments of the statutes had a
wide discretionary power which had not been exceeded in the case at
issue.
The applicant then lodged a constitutional complaint
(Verfassungsbeschwerde) which was rejected by a group of three judges
of the Federal Constitutional Court (Bundesverfassungsgerichtshof) on
6 November 1991 as being clearly ill-founded. The applicant states
that this decision was received by his lawyer on 6 December 1991.
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 thereby.
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 pension reduction constitutes
a violation of his property right. He 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. He states that
globally the VBL reduced its obligation to pay pensions by 2/3 as a
consequence of the amendments to its statutes.
The applicant further complains that the first instance court
only allowed the lawyers to plead and that the Federal Constitutional
Court likewise did not grant him a fair hearing in that most of his
arguments were disregarded.
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 as 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. Furthermore 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 submitted by the present applicant do no contain
any elements that could persuade the Commission to depart from its
prior jurisprudence.
It follows that the complaint under Article 1 of Protocol No. 1
(P1-1) to the Convention read also in conjunction with Article 14
(P1-1+14) of 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.
As regards the fairness of the proceedings the Commission notes
however that the domestic courts 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 with the assistance of his counsel.
It follows that the complaint under Article 6 (Art. 6) of the
Convention likewise has to be rejected in accordance with Article 27
para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber Acting President of the Second Chamber
(K. ROGGE) (G.H. THUNE)
Full & Egal Universal Law Academy