CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 août 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. 20024/92                       by Gerhard SÜSSMANN                       against Germany         The European Commission of Human Rights sitting in private on 30 August 1994, 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                  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 21 May 1992 by Gerhard Süssmann against Germany and registered on 22 May 1992 under file No. 20024/92;         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       16 November 1993 and the observations in reply submitted by the       applicant on 18 December 1993;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant, born in 1916, is a German national and resident in Karlsruhe.         The applicant, who was employed in the German civil service, receives a supplementary pension (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 authorises entitlement to 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 applicant's supplementary pension in accordance with the amended statutes.         The applicant appealed to the Arbitration Tribunal (Schieds- gericht) 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 11 July 1988 the applicant filed a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundes- verfassungsgericht).   His case was assigned to the Second Chamber of the First Senate at the Federal Constitutional Court.   At that time and in the following two years other complaints on this matter were lodged; 24 cases raised almost the same issues.   The Second Chamber also conducted proceedings in cases concerning, inter alia, the periods of notice regarding the dismissal of workers (decided on 30 May 1990), the right of an employer to lock out workers in the course of strikes (decided on 26 June 1991), and the constitutional complaints of former civil servants of the German Democratic Republic regarding a provision of the Unification Treaty terminating their contracts of employment (decided on 24 April 1991).         On 6 November 1991 three judges of the Second Chamber of the First Senate at the Federal Constitutional Court refused to admit the 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 had finally determined the factual and legal position, and no further appeals were necessary in order to exhaust remedies.         As regards the 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 disputed by the 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 intolerable 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 principles taken by employers and employed.   The wide margin of appreciation in this context had not been overstepped.         The Constitutional Court held 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 an insured person under the statutes in question did not amount to a violation of property rights as the case- law did not have any binding effect.         The Constitutional Court also found that the 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.   COMPLAINTS         The applicant complains under Article 6 of the Convention about the length of his proceedings before the Federal Constitutional Court.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 May and registered on 22 May 1992.         On 8 September 1993 the Commission decided to communicate the applicant's complaint about the length of his proceedings before the Federal Constitutional Court to the respondent Government for observations on admissibility and merits.         On 16 November 1993 the Government submitted their observations. The observations in reply by the applicant were submitted on 18 December 1993.   THE LAW         The applicant complains under Article 6 (Art. 6) of the Convention about the length of his complaint proceedings before the Federal Constitutional Court.         Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in the determination of his civil rights and obligations and of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time".         The Government submit that Article 6 para. 1 (Art. 6-1) does not apply to the proceedings before the Federal Constitutional Court.         They consider that the criterion applied in the European Court's case-law, namely whether or not the Constitutional Court's decision was capable of affecting the outcome of the case which has been litigated before the ordinary courts, is inappropriate, as there was no case conceivable in which the Constitutional Court's decision had no effect on the proceedings before the ordinary courts.   The Constitutional Court's proceedings would thus always be covered by Article 6 para. 1 (Art. 6-1).         The Government are of the opinion that proceedings before the Federal Constitutional Court, taking into account its particular position and tasks under the German Basic Law, could not be regarded as relating to a dispute over "civil rights and obligations".   Rather the Constitutional Court decided on the constitutional aspects of a case and not on the merits of the dispute between the parties.         The Government submit in particular that the obligation to decide within a reasonable time could not be applied to the constitutional complaint proceedings.   Although normally such complaints, if they were inadmissible or offered insufficient prospect of success, were dealt with within some weeks or months, they could be delayed because of the workload of the Federal Constitutional Court, or because of the joinder of similar cases or the priority to be given to more important cases.   The Government also point out the far-reaching consequences for the functioning and the structure of the Federal Constitutional Court, should Article 6 (Art. 6) be regarded as applicable.         Finally, they consider that the applicant's complaint about the length of his constitutional complaint proceedings is, in any event, not well-founded.   They state that in July 1988 when the applicant lodged his constitutional complaint and in the following two years there were several other complaints on these matters, and, in the end, 24 cases raising almost the same issues had to be dealt with simultaneously.   The major part of these cases were terminated in November 1991, including the applicant's complaint.   In the course of these proceedings the Chamber of the Constitutional Court dealing with these cases was particularly overburdened with work, and had to conduct proceedings in more urgent cases concerning, inter alia, the periods of notice regarding the dismissal of workers (decided on 30 May 1990), the right of an employer to lock out workers in the course of strikes (decided on 26 June 1991), and the constitutional complaints of former civil servants of the German Democratic Republic regarding a provision of the Unification Treaty terminating their contracts of employment (decided on 24 April 1991).         The Government's views were contested by the applicant.         The Commission, having regard to the arguments advanced by the parties on the question of the applicability of Article 6 para. 1 (Art. 6-1) of the Convention to the complaint proceedings before the Federal Constitutional Court, finds that in the present case this question raises complex legal issues which cannot be decided at the admissibility stage, but must be joined to the examination of the merits of the applicant's complaint.   In this respect, the Commission considers, in the light of the case-law of the Convention institutions on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that a thorough examination of this complaint is required, both as to the law and as to the facts.         For these reasons, the Commission, unanimously         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.   Secretary to the Commission        President of the Commission         (H.C. KRÜGER)                      (C.A. NØRGAARD)