CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 1996

.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. 29753/96                       by Elke and Gerhard MÜLLER-EBERSTEIN                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 27 November 1996, the following members being present:                Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 14 March 1995 by Elke and Gerhard MÜLLER-EBERSTEIN against Germany and registered on 8 January 1996 under file No. 29753/96;        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 applicants, born in 1940 and 1911, respectively, are German nationals and a married couple.   They are resident at Kochel am See. In the proceedings before the Commission, they are represented by MM. T. and W. Weyer, lawyers practising in Bielefeld.   A.    Particular circumstances of the case        The facts of the case, as submitted by the applicants, may be summarised as follows.        The second applicant is a retired managing clerk of a stock company.   When this company went bankrupt in 1979, a private Pension Guarantee Fund (Pensions-Sicherungs-Verein), a statutory insurance body in case of bankruptcy (Träger der gesetzlichen Insolvenzsicherung), took over the payment of his operational pension (Betriebsrente).        In 1991 the second applicant instituted proceedings before the Cologne Labour Court (Arbeitsgericht) against the Pension Guarantee Fund claiming an increase of his operational pension in view of the general price increments.        On 16 January 1992 the Labour Court dismissed the second applicant's claim.   The Labour Court, having regard to the case-law of the Federal Labour Court (Bundesarbeitsgericht), observed that employers had a statutory duty equitably to review operational pensions every three years.   However, this   obligation did not generally extend to statutory insurance bodies which could possibly be requested to pay an increased pension only in cases of an economic crisis.   The applicant had failed to show any such exceptional circumstances.        On 9 October 1992 the Cologne Labour Court of Appeal (Landesarbeitsgericht) dismissed the second applicant's appeal (Berufung).   The Labour Court of Appeal confirmed that the defendant was not obliged to compensate for general price increases.   In particular, the second applicant had failed to show that it had been his previous employer's constant practice to apply a precise adjustment of the operational pensions, which would have eventually bound the defendant.        On 5 October 1993 the Federal Labour Court dismissed the second applicant's appeal on points of law (Revision).   The Court confirmed the reasoning of the Cologne Labour Court of Appeal.   It further dismissed the second applicant's procedural complaints and considered in particular that he had failed duly to raise his complaints about insufficiencies in the taking of evidence.        On 10 March 1994 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht), alleging that the refusal of his claim infringed his constitutional rights.        Sitting as a panel of three members, on 13 September 1994 the Second Chamber of the First Senate (zweite Kammer des Ersten Senats) of the Federal Constitutional Court declined to accept the case for adjudication.   In its summary decision the Federal Constitutional Court referred to S. 93b, taken in conjunction with S. 93a, of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht), in the version of 11 August 1993.   The decision was notified to the second applicant on 28 September 1994.        The second applicant subsequently complained to the Federal Constitutional Court about the lack of reasoning in its decision of 13 September 1994.   By letter of 20 December 1994 the First Senate informed the second applicant that, pursuant to S. 93d para. 1, third sentence, of the Federal Constitutional Court Act, the decision to decline acceptance of a case did not require any particular reasoning. It was also noted that the Federal Constitutional Court Act had been amended in this respect in order to ease its workload.   No subsequent explanations could, therefore, be given.   B.    Relevant domestic law        According to Article 93 para. 1 (4a) of the Basic Law (Grundgesetz) the Federal Constitutional Court rules on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 (4), 33, 38, 101, 103 and 104 of the Basic Law.        The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act.        SS. 90 to 96 concern constitutional complaints.   S. 90 para. 1 determines the right to bring such proceedings in line with Article 93 para. 1 (4a) of the Basic Law.   In its paragraph 2, it lays down a rule on the exhaustion of ordinary remedies.   Any complaint has to be reasoned in accordance with S. 92.        S. 93a para. 1 provides that a constitutional complaint requires acceptance prior to a decision (Annahme zur Entscheidung).   According to paragraph 2 of S. 93a, a constitutional complaint shall be accepted if (a) it raises questions of fundamental importance from a constitutional point of view, or (b) if such acceptance is necessary for the protection of the rights enumerated in S. 90 para. 1; this may also be the case if the refusal of acceptance would cause the complainant a particularly serious prejudice.   SS. 93b and 93c concern the distribution of competences between the senates and the chambers. S. 93d contains further procedural rules, including the rule that the decision to decline acceptance does not require any particular reasoning.        S. 95 provides that if a constitutional complaint is upheld, the decision shall state which provision of the Basic Law has been infringed and by which act or omission.   If a decision is concerned, the Federal Constitutional Court shall quash the decision.   COMPLAINTS        The applicants complain under Article 6 para. 1 of the Convention about the lack of reasoning in the Federal Constitutional Court's decision of 13 September 1994.   THE LAW        The application relates to the alleged lack of a sufficient reasoning in the Federal Constitutional Court's decision of 13 September 1994, according to which it declined to accept the second applicant's constitutional complaint.   The applicants invoke Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1), as far as relevant, provides as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair ... hearing ... by [a] ...      tribunal ..."        The Commission finds that the first applicant, who was not a party to the German court proceedings, cannot claim to be a victim, within the meaning of Article 25 (Art. 25), of the alleged breach of Article 6 (Art. 6) of the Convention.        As regards the second applicant's complaint, the Commission recalls that proceedings come within the scope of Article 6 para. 1 (Art. 6-1) of the Convention, even if they are conducted before a constitutional court, where their outcome is decisive for civil rights and obligations (cf. Eur. Court HR, Süßmann v. Germany judgment of 16 September 1996, para. 41, to be published in Reports 1996).   In the present case the dispute before the labour courts concerned the amount of the second applicant's operational pension entitlement, which was of a pecuniary nature and therefore a civil right within the meaning of Article 6 (Art. 6) (cf. Süßmann judgment, loc cit., para. 42).   The complaint proceedings before the Federal Constitutional Court could have been directly decisive for the dispute over the second applicant's civil rights, had the constitutional complaint been accepted for adjudication and further been successful.   However, the Second Section of the First Division, sitting as a panel of three judges, had declined to accept the second applicant's constitutional complaint without giving reasons as to the merits of the submissions made by the second applicant.   The question therefore arises whether these proceedings involved a "determination" of the second applicant's rights (cf., a contrario, Süßmann judgment, loc. cit., paras. 43-45).   However, this matter need not be resolved, as this complaint is anyway inadmissible for the following reasons.        The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument (cf. Eur. Court HR, Ruiz Torija and Hiro Balani v. Spain judgments of 9 December 1994, Series A nos. 303 A/B, p. 12, para. 29 and pp. 29-30, para. 27, respectively).   However, the Commission has already found that, if the relevant domestic law authorises a superior court to reject an appeal on the ground that it raises no legal issue of fundamental importance and offers no prospect of success, it may be sufficient for that court simply to refer to the provision authorising this procedure (cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240; see also No. 20335/92, Dec. 6.9.95; and No. 28631/95, Dec. 15.5.96; not published).        In the instant case, the Commission observes that the Federal Constitutional Court decided to decline acceptance of the second applicant's case on the basis of S. 93b, in conjunction with S. 93a of the Federal Constitutional Court Act.   In its decision, reference was made to these legal provisions.        The Commission considers that in these circumstances there is no appearance that the proceedings before the Federal Constitutional Court did not comply with Article 6 para. 1 (Art. 6-1).        It follows that the application is 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 APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber