CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 septembre 2001

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THE FACTS The applicant, Mr Helmut Lenz, is a German national, born in 1928 and living in Berlin. He was represented before the Court by Mr   K. ‑ H.   Christoph, of the Berlin Bar. A.     The circumstances of the case The facts of the case, as presented by the parties, can be summarised as follows. Between 1 September 1967 and 31 August 1990 the applicant worked as a radio journalist in the German Democratic Republic (GDR). He ran the international press-review office until shortly before the entry into force of the German Unification Treaty on 3 October 1990 . On 31 July 1990 the applicant entered into an agreement proposed by his employer under which his contract of employment was to terminate and he would receive an early-retirement pension ( Vereinbarung zur Beendigung des Arbeitsrechtsverhältnisses und zur Gewährung von Vorruhestandsgeld ) of 1,074 East-German marks a month, in accordance with Article 3a of the Early-Retirement Pensions Order of 8 February 1990 ( Verordnung zur Gewährung von Vorruhestandsgeld ). The Order required employers to pay qualifying employees an early-retirement pension equal to 70% of their average net wage over the preceding twelve months. Article 9 § 2 of the second implementing provision ( Zweite Durchführungsbestimmung ) of the Order provided for the pensions to be indexed to changes in pay levels within the firm that would have affected the employee had he or she continued to work. The sum the applicant received in September 1990, after indexation, was 1,166 East-German marks. On 12 October 1990 the applicant applied to the Federal Labour Ministry ( Bundesanstalt für Arbeit ) for payment of his early-retirement pension, in accordance with the relevant provisions of the German Unification Treaty ( Einigungsvertrag – see “Relevant domestic law” below). The Federal Labour Ministry made early-retirement pension payments to the applicant of 1,246 German marks (DEM) from January to June 1991, DEM 1,433 from July to December 1991, DEM 1,600 from January to June 1992, DEM 1,804 from July to December 1992, and DEM 1,915 from January 1993 onwards, applying the “adjustment factor” ( Anpassungs-faktor ) defined in Article 112a of the Labour Promotion Act ( Arbeits-förderungsgesetz ) and referred to in the Unification Treaty. On 20 September 1993 the applicant made further claims, as he considered that the sums paid by the Federal Labour Ministry between 1   January 1991 and 31 May 1993 were significantly less than the 70% of his average net wage over the preceding twelve months to which he believed he was entitled. He sought payment of the difference of DEM 8,319,59. In a judgment of 1 October 1993, the Berlin Labour Court ( Arbeits-gericht ) dismissed the applicant’s claim, holding that his agreement with his employer merely provided for the termination of his contract of employment, while the method by which his early-retirement pension was to be calculated w as set out in the Early-Retirement Pensions Order of 8   February 1990. The applicant therefore had no independent right to payment of such a pension, as the agreement did no more than to confirm a right he enjoyed directly under that Order. The applicant appealed against that decision. In a judgment of 3 March 1994 the Berlin Regional Court ( Landes-arbeitsgericht ) dismissed an appeal by the applicant for the same reasons. In a judgment of 27 June 1995, the Federal Labour Court ( Bundes-arbeitsgericht ) dismissed a further appeal by the applicant, holding that his rights had been extinguished by the entry into force of the Unification Treaty on 3 October 1990. The Federal Court pointed out, firstly, that the obligations of the GDR radio and television company, which was dissolved on reunification, had been assumed by the five Länder situated within the territory of the GDR at the time and the Land of Berlin. It added that by virtue of Article 9 § 2 of the second implementing provision of the Early-Retirement Pensions Order, taken together with Appendix IIa of the German Unification Treaty, the Federal Labour Ministry was in law the successor ( Rechtsnachfolger ) to the applicant’s former employer. The Federal Court found, further, that the applicant no longer had any right to payment of the difference, as the legal basis for the progressive indexation of the early-retirement pension had disappeared on 3 October 1990, the German Unification Treaty having changed the method by which the level of the early-retirement pension was adjusted. That change had been made with the consent of the parliament of the GDR. Former Article 9 § 2 of the second implementing provision had been repealed and replaced by the “adjustment factor” provisions set out in Article 112a. The Federal Court found, lastly, that the agreement made on 31 July 1990 did not contain any provision giving the applicant any additional rights to those set out in the Early-Retirement Pensions Order of 8 February 1990. In particular, it did not provide for a progressive, long-term revaluation of the applicant’s early-retirement pension in line with changes in wage levels paid by the employer, but expressly stipulated that the pension was granted on the basis of the Order of 8 February 1990. On 14 July 1997 the Federal Constitutional Court ( Bundesverfassungs-gericht ), sitting as a bench of three judges, declined to accept a further appeal by the applicant for adjudication. B.     Relevant domestic law Appendix II, Chapter VIII, section E, paragraph III no. 5 of the German Unification Treaty of 31 August 1990 provides that the Early-Retirement Pensions Order remains valid, but lays down, inter alia , that after that date payments will, at the employee’s request, be made by the Federal Labour Ministry and that the early-retirement pension shall be equal to 65% of the average net wage over the three preceding months. COMPLAINTS The applicant complained that the measures introduced by the German authorities under the relevant provisions of the German Unification Treaty meant that his early-retirement pension had been reduced and was no longer indexed, in breach of Article 1 of Protocol No. 1. He also alleged that the measures constituted political discrimination in breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. THE LAW 1.     The applicant maintained that the measures introduced by the German authorities under the relevant provisions of the German Unification Treaty meant that his early-retirement pension had been reduced and was no longer indexed, in breach of his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1, which provides: “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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government argued as a preliminary submission that the applicant had failed to exhaust domestic remedies, as his claim should have been made to the Federal Labour Office, not his employer. As to the merits, they said that the applicant had no entitlement to payment of an early-retirement pension of the level claimed. Moreover, the pension was not paid from an insurance fund to which the applicant had contributed and, accordingly, was not within the scope of Article 1 of Protocol No. 1. Thus, even if the Court were to find that the applicant had a proprietary interest in the pension, Article 1 of Protocol No. 1 had not been infringed, since although there had been a 5% reduction in the base used for its calculation, there had been no reduction in its nominal value. The provisions of the Early-Retirement Pensions Order had been amended so as to guarantee everyone payment of such a pension, uniformly and irrespective of their employer’s solvency. To that end, it had been necessary to simplify and rationalise the method of calculation. Since the measure concerned 400,000 people and 4,500 collective-bargaining agreements were applicable, it had been impossible for each individual case to be examined. The applicant contended that he had agreed to sign the agreement – which brought his contract of employment to an end and provided for the payment of an early-retirement pension – under pressure from his employer; he had also been concerned about becoming unemployed and wished to take advantage of the favourable terms offered by the Early-Retirement Pensions Order of 8 February 1990. Under that agreement, which he maintained had remained in effect beyond 3 October 1990 when the German Unification Treaty entered into force, he had a contractual right to payment of the pension on the terms initially agreed and no government or parliament had authority to interfere with that right. With regard to the preliminary objection of a failure to exhaust domestic remedies, the Court noted that the applicant had exercised all the remedies available to him under German law, including an appeal to the Federal Constitutional Court. The domestic courts had ruled on the issue of the legality of the 5% reduction in the base used for calculating the early-retirement pension under Appendix II to the German Unification Treaty of 31 August 1990. The Court therefore finds that the applicant has complied with the condition contained in Article 35 § 1 of the Convention. Furthermore, the Länder situated within the territory of the GDR at the time and the Berlin Land , which had assumed the obligations of the GDR radio and television company, were also parties to the domestic proceedings. As to the merits, the Court reiterates that “possessions” within the meaning of the first sentence of Article 1 Protocol No. 1 may be either “existing possessions” or valuable assets, including claims, which the applicant can argue he or she has at least a “legitimate expectation” of realising (see Mayer and Others v. Germany , nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92, Commission decision of 4 March 1996, Decisions and Reports 85-A, p. 5). Accordingly, the applicant’s right to payment of his early-retirement pension under the agreement he made with his employer on 31 July 1990 constitutes a “possession” within the meaning of Article 1 of Protocol No.   1. However, although Article 1 of Protocol No. 1 guarantees payment of social security benefits to people who have paid contributions to an insurance fund, it cannot be construed as affording a right to a pension of a specific amount (see, among other authorities, Skórkiewicz v. Poland (dec.), no.   39860/98, 1 June 1999, unreported; Janković v. Croatia (dec.), no.   43440/98, ECHR 2000-X; and Kuna v. Germany (dec.), no. 52449/99, ECHR 2001-V). In the present case, the early-retirement pension was a welfare measure, financed partly by the employer and partly by the State. However, the Court does not need to determine the exact nature of the early-retirement pension for the purposes of Article 1 of Protocol No. 1, as the interference in the instant case was not disproportionate to the legitimate aim pursued. In that connection, it notes, firstly, that the basis for the interference was Appendix II to the German Unification Treaty of 31 August 1990, which provided that the early-retirement pension after that date would be 65% of the average net wage during the preceding three months; this, therefore, was a 5% reduction in the base used for calculating the pension when compared to the Order of 8 February 1990, under which the base had been 70% of the average net wage over the preceding twelve months. The agreement which the applicant made with his employer on 31 July 1990 expressly referred to the Early-Retirement Pensions Order of 8 February 1990, which was amended by Appendix II to the German Unification Treaty with the consent of the newly elected parliament of the GDR. The Court considers that the German legislature’s desire to integrate rights to early-retirement pensions in the GDR as quickly as possible into the Federal Republic of Germany’s system by guaranteeing everyone – irrespective of their employer’s solvency – payment of a sum that was 5% less than that originally fixed, constituted a legitimate aim for the purposes of Article 1 of Protocol No. 1 (see, mutatis mutandis , Kuna , decision cited above). The Court noted too that all early-retirement pensions were converted at parity on reunification and that, in view of the enormous task faced by the German legislature, the applicant’s loss was minimal, as the nominal value of his early-retirement pension after reunification remained the same and the pension was revalued at regular intervals. Having regard to all these factors and the margin of appreciation enjoyed by the State in the exceptional context of German reunification, the Court finds that a reduction of 5% in the base used for calculating early-retirement pensions was not disproportionate to the legitimate aim pursued. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 2.     The applicant also alleged that he had been a victim of political discrimination in breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. Article 14 reads as follows: “ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .” Having regard to its reasoning under Article 1 of Protocol No. 1, the Court considers that no separate issue arises under Article 14 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.