AS TO THE ADMISSIBILITY OF
Application No. 20024/92
by Gerhard SÜSSMANN and Irmgard STIELER
against Germany
The European Commission of Human Rights sitting in private on
8 September 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 May 1992 by
Gerhard Süssmann and Irmgard Stieler against Germany and registered on
22 May 1992 under file No. 20024/92;
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 facts, as they have been submitted by the applicants, may be
summarised as follows.
The first applicant, born in 1916, is a German national and
resident in Karlsruhe. The second applicant, born in 1929, is also a
German national and resident in Düsseldorf. Before the Commission she
is represented by the first applicant.
The applicants, who were both employees in the German civil
service, receive supplementary pensions (Versorgungsrente). Employees
in the German civil service have a supplementary old age insurance,
administered by the Supplementary Pensions Office (Versorgungsanstalt
des Bundes und der Länder), which entitles the employees to receive a
progressive supplementary pension.
In March 1982 and again in March 1984 the statutes of this
pension scheme were amended in order to avoid that the amounts paid
under the general old age pension scheme plus the amounts paid under
the supplementary pension scheme for the civil service exceeded the
last net salaries of the employees in the civil service. These
amendments also affected cases where insurance contracts already
existed or pensions were paid. On 16 March 1988 the Federal Court of
Justice (Bundesgerichtshof), in leading cases, confirmed the lawfulness
of the amendment.
On 16 May and 3 June 1988 the Supplementary Pensions Office fixed
the amount of the first applicant's supplementary pension in accordance
with the amended statutes.
The first applicant appealed to the Arbitration Tribunal
(Schiedsgericht) at the Supplementary Pensions Office. Arbitration was
provided for under the statutes of the Supplementary Pensions Office.
On 20 February 1987 the Arbitration Tribunal dismissed his
appeal. On 10 March 1989 the High Arbitration Court (Oberschieds-
gericht) dismissed his further appeal.
On 26 August 1988 the applicant filed a constitutional complaint
(Verfassungsbeschwerde) with the Federal Constitutional Court (Bundes-
verfassungsgericht).
On 6 November 1991 the Federal Constitutional Court refused to
admit the first applicant's constitutional complaint on the ground that
it offered no prospect of success.
The Constitutional Court found that his complaint was
inadmissible to the extent that factual or legal issues could have been
raised in proceedings before the competent lower courts. However, the
remainder of his complaints, in particular about the alleged unfairness
of the proceedings before the Federal Court of Justice and the
violation of his right to property, were admissible. The judgments of
the Federal Court of Justice of 16 March 1988 having finally determined
the factual and legal position, no further appeals were necessary in
order to exhaust remedies.
As regards the first applicant's complaint about unfairness, the
Constitutional Court found no indication that the courts had failed
duly to consider factual submissions as to the amendment of the
statutes concerned. The judgments were mainly based upon two opinions
by expert commissions of September 1975 and November 1983. No further
evidence had to be taken.
The Constitutional Court further stated that, assuming the
pension rights concerned fell within the scope of the constitutional
right to property, there was no indication of a violation of this
right. The pension rights could be reduced by amending the statute
under the rules of private law.
The Constitutional Court noted that the Federal Court of Justice
had found the pensions under the scheme managed by the Supplementary
Pensions Office to be governed by private law. This appreciation had
not generally been objected to by the first applicant. The
Constitutional Court further noted that the Federal Court of Justice
regarded the pension insurance as insurance for a group of persons
(Gruppenversicherung), the employer being the insured and the employees
the beneficiaries. The Federal Court of Justice, examining the
compliance of the amendment with the employees' interests, had
considered that the amendments had in reaction to a socially unbearable
development remedied a serious interference with the purpose of the
supplementary pension. It served the consolidation of all old age
pension schemes and was based upon a decision of principle taken by
employers and employed. The wide margin of appreciation in this
context had not been overstepped.
The Constitutional Court found that these findings of the Federal
Court of Justice did not disclose any violation of constitutional
rights. In particular the interests of the individual employees as
beneficiaries could reasonably be protected by the professional
organisations representing them. Having regard to the general interest
in a solid system of old age pensions which could be financed, a
collective safeguard of the employees' interests appeared appropriate.
The deviation from previous case-law of the Federal Court of Justice
regarding the employee as insured person under the statutes in question
did not amount to a violation of property rights as case-law did not
have any binding effect.
The Constitutional Court also found that the first applicant's
doubts as to the impartiality of the judges at the Arbitration Courts
were irrelevant, as they were not part of the judiciary, but
arbitration boards under private law.
The decision was served on 5 December 1991.
The second applicant filed a suit with the Karlsruhe Regional
Court (Landgericht) against the Supplementary Pensions Office claiming
payment of her supplementary pension calculated under the old statute.
On 29 November 1991 the Regional Court dismissed the second applicant's
action. It found that the applicant's claims were partly lodged out
of time and that, in any case, they were unfounded. In this respect
the Regional Court referred to the case-law of the Federal Court of
Justice and the Federal Constitutional Court.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 about
the reduction of their supplementary pension resulting from the
amendment of the statutes of the Supplementary Pensions Office in 1982
and 1984.
2. The applicants complain under Article 6 of the Convention that
there was no fair hearing in the pension cases. The German courts did
not take all relevant arguments into account and did not sufficiently
take evidence. Furthermore, the Arbitration Courts were not
independent.
3. They also complain under Article 6 of the Convention about the
length of the first applicant's proceedings before the Federal
Constitutional Court.
THE LAW
1. The applicants complain about the reduction of their
supplementary pension resulting from the amendment of the statutes of
the Supplementary Pensions Office in 1982 and 1984. They invoke
Article 1 of Protocol No. 1 (P1-1) to the Convention.
The Commission has previously held that the co-ordination of two
pensions in order to prevent cumulation of social benefits does not
violate the right to peaceful enjoyment of possessions, even where one
of the pensions is reduced (No. 10671/83, Dec. 4.3.85, D.R. 42
p. 229).
In the present case, the supplementary pensions paid under the
statutes of the Supplementary Pensions Office were reduced in order to
prevent that payment of the supplementary pension plus normal pension
exceeded the employee's last monthly net income.
The Commission, assuming that the applicants' complaints about
the reduction of their supplementary pensions raise an issue under
Article 1 of Protocol No. 1 (P1-1), considers that the amendment of the
statutes of the Supplementary Pensions Office resulting in such a
reduction of pensions does not amount to a deprivation of property
contrary to Article 1 of Protocol No. 1 (P1-1).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants complain under Article 6 (Art. 6) of the
Convention that there was no fair hearing in the pension cases, in
particular in the proceedings before the Federal Court of Justice. The
German courts did not take all relevant arguments into account and did
not sufficiently take evidence.
The Commission observes that the applicant's submissions mainly
relate to the proceedings before the Federal Court of Justice in the
leading cases.
The Commission, assuming that the applicants are entitled to
raise the alleged unfairness of these proceedings, although they were
not parties, finds that their submissions do not disclose any
appearance of unfairness or arbitrariness.
Consequently, this part of the application is likewise manifestly
ill-founded.
3. Furthermore, the applicants complain under Article 6 para. 1
(Art. 6-1) of the Convention about the proceedings before the
Arbitration Courts.
The Commission considers that the complaint about the lack of
independence and fairness of the Arbitration Courts does not relate to
a tribunal within the meaning of Article 6 para. 1 (Art. 6-1). It
notes that the arbitration procedure under the statutes of the
Supplementary Pensions Office does not exclude remedies before the
civil courts and that it is not compulsory.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. As regards the applicants' complaint under Article 6 para. 1
(Art. 6-1) of the Convention about the length of the proceedings before
the Federal Constitutional Court which only concerns the first
applicant who had lodged a constitutional complaint, the Commission
considers that further information is required and accordingly reserves
the admissibility of this part of the application.
For these reasons, the Commission by a majority
1. DECIDES TO ADJOURN THE EXAMINATION OF THE FIRST APPLICANT'S
COMPLAINT ABOUT THE LENGTH OF HIS PROCEEDINGS BEFORE THE FEDERAL
CONSTITUTIONAL COURT;
2. DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy