CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 1994

.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. 17596/90                     by K.I.                     against Germany          The European Commission of Human Rights sitting in private on 14 April 1994, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                A. WEITZEL                F. ERMACORA                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                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY             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 16 June 1990 by K.I. against Germany and registered on 21 December 1990 under file No. 17596/90;        Having regard to :   -     reports provided for in Rule 47 of the Rules of Procedure of the     Commission;   -     the observations submitted by the respondent Government on      5 March 1992 and the observations in reply submitted by the      applicant on 4 May 1992 ;   -     the decision of 16 May 1992 to adjourn the examination of the   matter pending the Ruiz-Mateos case ;        Having deliberated;        Decides as follows: THE FACTS        The applicant is a German citizen, born in 1933 and living in Dorsten.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In 1983 the applicant lodged an action with the Labour Court (Arbeitsgericht) in Düsseldorf claiming a higher staff pension (Betriebspension) from the defendant company (VEBA AG).   The action was dismissed on 23 May 1984.   According to the findings of the Labour Court the applicant, as employee, and the defendant's predecessor (Rechtsvorgänger), as employer, had concluded an employment contract on 16 December 1970.   This contract referred to a Protocol of 1 December 1970 (Zeichnungsprotokoll) according to which the applicant's staff pension would be calculated on the basis of the amount of his salary in October 1970.   By letter of 15 December 1972 the applicant had been informed that the defendant company took the place of his previous employer.        The staff pension eventually paid by the defendant was, according to the Labour Court, correctly calculated in accordance with the Protocol of 1 December 1970.   Even if, at the relevant time, the applicant did not know the contents of the Protocol, he did, as a former employee of a notary (Notariatsgehilfe), have enough professional experience to realise the importance of the reference to this text.   Therefore the regulations provided for in the said Protocol had become binding for him.   These regulations were furthermore not affected by any of the grounds of nullity invoked by the applicant.        The applicant's appeal (Berufung) was rejected by the Regional Labour Court (Landesarbeitsgericht) in Düsseldorf on 17 May 1985.   The Court also dismissed the applicant's supplementary action (weitergehende Klage).   According to the detailed and extensively reasoned judgment comprising 58 pages, the Regional Labour Court agreed with the lower court that the Protocol of 1 December 1970 was valid and binding and did not affect the applicant's expected pension in a disproportionate manner.   The Court added that even if the Protocol did not qualify as a collective bargaining agreement, its regulations were nevertheless binding as they had been made part of the applicant's employment contract.        The Appellate Court refused to grant leave to appeal on points of law (Revision).        The applicant's objections against the denial of leave to appeal were rejected by the Federal Labour Court (Bundesarbeitsgericht) on 19 June 1986 as being inadmissible. The Court stated that the applicant had not shown that the judgment complained of was incompatible with important jurisprudential principles.        On 31 July 1986 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) which was rejected by a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 20 December 1989 (served on 28 December 1989) as being partly inadmissible and as offering no prospects of success as to the remainder.   Insofar as the applicant had complained of the Federal Labour Court's decision the constitutional complaint was considered to be unsubstantiated.   The same reason applied, according to the Federal Constitutional Court, to the complaints that the Labour Court's and the Regional Labour Court's decisions violated the principle of equality before the law and the applicant's property right.   Insofar as he had invoked violations of fundamental procedural rights in connection with the composition of the Regional Labour Court, the Constitutional Court found that the appointment by that court of lay judges had been effected in accordance with the Federal Labour Court's jurisprudence and did not disclose any appearance of arbitrariness. As to the applicant's complaint that the Protocol of 1 December 1970 had wrongly been considered to be effective, although it had been signed by representatives not competent to act on behalf of the defendant's predecessor, the Constitutional Court stated that this question could be left undecided as in any event the Protocol was binding for the defendant company and its employees and for whom the applicant had worked since 1 January 1973.   As to the applicant's complaint that the Regional Court had wrongly accepted as correct certain other allegations, the Constitutional Court stated that the reasoning in question was contained only in an obiter dictum and did not form the basis of the Regional Court's decision.        Further it is stated that there was nothing to show that the Regional Labour Court had disregarded any relevant allegation as to the non-observance of a salary increase of 1 December 1970 and its effect on the salary system within the defendant company. Finally, as regards the interpretation and application of ordinary substantive and procedural law by the Labour Courts, the Constitutional Court considered that there was no appearance of any arbitrariness.   COMPLAINTS        The applicant considers that the proceedings before the Federal Constitutional Court lasted too long.   Furthermore he complains that the Federal Constitutional Court wrongly considered his complaint about discriminatory treatment to be unsubstantiated, and that it wrongly denied a violation of procedural rights on account of the composition of the Regional Labour Court.   He states in the latter respect that the Labour Court file had gone astray and that it is therefore impossible for him to find out whether any relevant incorrectness had been committed in appointing the lay judges.   He further submits that it followed from the material before the Regional Labour Court that the Protocol of 1 December 1970 had not been signed by either a competent representative of the defendant company or a representative of its predecessor.   Therefore the Federal Constitutional Court was wrong to state that no relevant arguments had been disregarded by the Regional Labour Court in this respect. He further maintains that contrary to the Constitutional Court's findings his submissions in the Labour Court proceedings that a salary increase had been outbalanced by a suppression of other payments were relevant and had therefore also wrongly been disregarded.     PROCEEDINGS BEFORE THE COMMISSION          The application was introduced on 16 June 1990 and registered on 21 December 1990.        On 2 December 1991 the Commission decided to communicate the application to the respondent Government under Rule 48 para. 2 (b), of its Rules of Procedure.        The Government's observations were submitted by letter dated 5 March 1992 and the applicant's reply by letter of 4 May 1992.        On 16 May 1992 the Commission decided to adjourn the proceedings pending the outcome of the Ruiz Mateos case before the European Court of Human Rights.   Judgment in that case was delivered on 23 June 1993 (Eur. Court H.R.,Ruiz Mateos judgment of 23 June 1993, Series A no. 262).     THE LAW   1.    The applicant mainly complains of the length of the Constitutional Court proceedings which he instituted on 3 July 1986 and which ended on 20 November 1989.   He invokes Article 6 (Art. 6) of the Convention, the relevant part of which reads as follows:        "In the determination of his civil rights and obligations      ... everyone is entitled to a fair and public hearing      within a reasonable time by an independent and impartial      tribunal established by law."        The respondent Government contest the applicability of Article 6 (Art. 6) of the Convention and submit that, in any event, the proceedings in question did not exceed a reasonable time.        After a preliminary examination of the facts and the submissions of the parties, the Commission considers that the application raises complex factual and legal issues which require an examination of the merits.   The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring the application inadmissible have been established.   2.    Insofar as the applicant alleges violations of his right under Article 6 para. 1 (Art. 6-1) to a fair hearing in the Labour Court proceedings the Commission notes that the Regional Labour Court examined the applicant's case in a careful and extensively reasoned manner.   The Commission further points out that it does not have the competence to examine whether errors of law or fact have been committed by the domestic courts unless such errors disclose a possible violation of Convention rights. However, as was already stated by the Federal Constitutional Court, there is nothing to show that the Regional Labour Court arbitrarily disregarded relevant arguments or submissions the cognisance of which would have necessarily led to a judgment in the applicant's favour.   Even if the person who had signed the decisive Protocol of 1 December 1970 on the defendant company's behalf had, at the relevant time, not been competent to do so, there is nothing to show that the defendant company did not find itself bound throughout the years by the regulations contained in that Protocol. In these circumstances the Commission does not see any reason to question the Federal Constitutional Court's finding that the Regional Labour Court had not disregarded in an arbitrary manner any relevant arguments in this respect.        The applicant has furthermore not shown that his submissions relating to alleged discriminatory treatment, overtime payments and salary increase were of such importance that they would have justified a decision in his favour had they been correctly considered and appreciated by the Regional Labour Court.        The Commission concludes that the applicant's submissions are limited to a criticism of the domestic decisions without disclosing any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   This part of the application therefore has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further alleges a violation of his right that his case be decided by a "tribunal established in accordance with the law" as stipulated in Article 6 para. 1 (Art. 6-1) of the Convention.   However the Commission notes that, according to the Federal Constitutional Court, the Regional Labour Court had appointed lay judges in accordance with the jurisprudence of the Federal Labour Court.   The applicant has again not shown that this finding is incorrect and that a substantial and arbitrary error was committed in connection with the composition of the chamber of the Regional Labour Court which decided his appeal. This part of the application has likewise to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE COMPLAINT ON THE LENGTH OF THE PROCEEDINGS,      ADMISSIBLE   without prejuding the merits ;        REJECTS THE REMAINDER OF THE APPLICATION.   Secretary to the Commission              President of the Commission        (H.C. Krüger)                             (C.A. Nørgaard)