CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 mai 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 15408/89                       by B.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 27 May 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, 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 6 July 1989 by B. against the Federal Republic of Germany and registered on 28 August 1989 under file No. 15408/89;           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 of the case, as they have been submitted by the applicant, may be summarised as follows:           The applicant, born in 1916, is a German national and resident in Solingen.           In 1981, in the context of divorce proceedings, the Solingen District Court (Amtsgericht), decided upon the spouses' pension splitting (Versorgungsausgleich) under S. 1587 b of the Civil Code (Bürgerliches Gesetzbuch) and transferred part of the applicant's future pension rights (Rentenanwartschaften), about DM 517 per month at the time in question, to his divorced wife's pension account at the Rheinprovinz Insurance Office (Landesversicherungsanstalt).           Since September 1981 the applicant has received a monthly pension of about DM 1,107, his divorced wife was paid about DM 812. The applicant's divorced wife died in November 1984.           On 21 December 1984 the Rheinprovinz Insurance Office dismissed the applicant's request to be paid the full amount of his pension.   The Office found that the conditions of S. 4 para. 2 of the Act concerning the Settlement of Undue Hardships in Pension Splitting (Gesetz zur Regelung von Härten im Versorgungsausgleich) were not met.           According to S. 4 para. 2 of the above Act a pension splitting in the context of divorce proceedings will be undone, if the divorced spouse deceases before having received any payments, or having received less than twice the yearly amount of her pension, related to the end of pension payments.           The applicant's wife had received altogether about DM 25,213, whereas the limit within the meaning of S. 4 para. 2 of the above Act was about DM 14,907.           On 21 July 1987 the Düsseldorf Social Court (Sozialgericht) dismissed the applicant's action for payment of his full pension.   His appeal on points of law (Revision) was dismissed by the Federal Social Court (Bundessozialgericht) on 21 July 1987.           On 5 July 1989 the Federal Constitutional Court (Bundes- verfassungsgericht) dismissed the applicant's constitutional complaint (Verfassungsbeschwerde).   The Constitutional Court found that S. 4 para. 2 of the above-mentioned Act was consistent with the Basic Law (Grundgesetz), in particular the guarantee of property.           The Constitutional Court recalled that, in its previous decision concerning the reform of the divorce law, in particular the pension splitting, the legislator had been ordered to pass legislation in order to avoid undue hardships which could possibly arise if a divorced spouse having received pension rights dies after having been paid the pension in question for only a short period.           The Constitutional Court considered that the solution found in S. 4 para. 2 of the above Act was not arbitrary nor disproportionate to the aim pursued, namely to limit the expenses for the old age pension schemes.   In this respect, the Constitutional Court noted that the interference with the pension rights concerned took place at the time of the pension splitting in the context of the spouses' divorce and was justified under Article 6 para. 1 (protection of marriage and family) and Article 3 para. 2 (equal rights of men and women) of the Basic Law.   Subsequent to such a pension splitting, two seperate relationships concerning the divorced spouses' pension rights existed.   Having regard to the social aspects of an old age insurance scheme, limitation of a re-transfer of pension rights as provided for in S. 4 para. 2 did not appear unreasonable.     COMPLAINTS           The applicant complains that the part of his pension rights which had been transferred to the pension account of his belated wife upon divorce were not transferred back to his account upon her death. He does not invoke any provision of the Convention.     THE LAW           The applicant complains about the decisions taken by the German authorities in his case under S. 4 para. 2 of the Act concerning the Settlement of Undue Hardships in Pension Splitting.           The Commission has examined this complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention which provides in its first paragraph:   "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 Commission recalls that a right to a pension is not as such guaranteed by the Convention.   In certain circumstances, the payment of contributions to a pension fund may create a property right in a portion of such a fund and a modification of the pension rights under such a system could in principle raise an issue under Article 1 of Protocol No. 1 (P1-1) to the Convention.   However, even assuming that Article 1 of Protocol No. 1 (P1-1) guarantees a person who has paid contributions to a special insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount (cf.   No. 5849/72, Müller v. Austria, Comm.   Report 1.10.75, paras. 30 - 33, D.R. 3 p. 25).           In the present case pension rights were transferred from the applicant's pension account to his belated wife's account upon their divorce in 1981.   Following her death in 1984 the Rheinprovinz Insurance Office refused to re-transfer these pension rights on the ground that the applicant did not meet the conditions of S. 4 para. 2 of the Act concerning the Settlement of Undue Hardships in Pension Splitting.           The Commission, assuming that the applicant's complaint about S. 4 para. 2 of the above Act raises an issue under Article 1 of Protocol No. 1 (P1-1), considers that the limitations on a re-transfer of pension rights which had been subject to a pension splitting in divorce proceedings do not amount to deprivation of property contrary to Article 1 of Protocol No. 1 (P1-1).           The Commission finds that in the circumstances of the present case there is no appearance of a violation of Article 1 of Protocol No. 1 (P1-1), nor of any other provision of the Convention.   It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).             For these reasons, the Commission unanimously             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission            President of the Commission              (H. C. KRÜGER)                         (C. A. NØRGAARD)