CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 1993

.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. 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)