ADAM AND OTHERS  v. GERMANY
Inadmissible
John Hedigan
The applicants, Mr Rüdiger Adam, Ms Angelika Vogt and Ms Marlis Bertling, are German nationals. They were represented before the Court by Mr K.H. Christoph, a lawyer practising in Berlin. The applicants worked as ballet dancers in and for the German Democratic Republic (“GDR”). At the end of their stage career they were paid a monthly allowance (“the allowance“) for former ballet dancers. That allowance was paid by virtue of a set of Regulations enacted by the Minister of Culture (Anordnung über die Gewährung einer berufsbezogenen Zuwendung an Ballettmitglieder in staatlichen Einrichtungen der DDR) of 1 September 1976. It accrued after reaching the age of 35 and having worked for at least 15 years as a dancer. It was paid, irrespective of other earnings, by the last employer. Once the former dancer received an old-age or invalidity pension the allowance was paid by the National Insurance of the GDR (Staatliche Versicherung der DDR). After the German reunification the allowance was initially converted into and paid in German marks (DEM). On 1 January 1992, however, all allowance payments to former ballet dancers were discontinued on the basis of Article 9 § 2 read in conjunction with Appendix II, Chapter VIII, Section H, paragraph III, Nr. 6 of the German Unification Treaty (Einigungsvertrag) of 31 August 1990, hereafter referred to as “Article 9 of the German Unification Treaty” (see “Relevant domestic law and practice” below). In 1992 the applicants and several other former ballet dancers of the GDR lodged a constitutional complaint with the Federal Constitutional Court. The latter refused to accept the complaint because the applicants had not exhausted legal remedies. 1. Applicant Adam Applicant Adam (A) worked from 1960 to 1988 as a ballet dancer for a national company of the GDR. In 1988 he terminated his career on stage and was subsequently paid an allowance of 512, 50 marks per month until its suspension on 31 December 1991. On 17 March 1995 A brought an action with the Dresden Social Court (Sozialgericht) claiming the continued payment of the allowance. On 11 April 1995 the Social Court referred his case to the Dresden Labour Court (Arbeitsgericht). On 10 August 1995 the Sachsen Social Court of Appeal (Landessozialgericht) rejected his appeal against the referral. On 13 February 1996 the Dresden Labour Court rejected A’s action. It argued that A had no valid claim to any allowance payments beyond 31 December 1991. As the German Unification Treaty permanently ended payment of these allowances from that date, it did not recognise the allowance as being a legal claim within the social security system of the Federal Republic of Germany (FRG). On 20 June 1997 the Sachsen Regional Labour Court (Landesarbeitsgericht) rejected A’s appeal (Berufung). On 29 August 2000 the Federal Labour Court (Bundesarbeitsgericht) rejected A’s request for leave to appeal on points of law. It conceded that the wording of Article 9 of the German Unification Treaty was ambiguous in that it could be interpreted as setting 31 December 1991 either as the final date to qualify for the allowance or as terminating allowance payments permanently from that date. The legislator had however meant to suspend the allowance payments as of 31 December 1991. The allowance was an atypical benefit granted by the GDR and had been paid out of public funds. Under these circumstances a transfer of the allowance into the united German legal system would have required an explicit and more precise rule than that actually laid down in the German Unification Treaty. Furthermore Article 9 of the German Unification Treaty had to be construed bearing in mind that that provision was intended to lead to the creation of a uniform and united German pension system. Accordingly, it was meant to regulate the application of the GDR’s pension schemes for a provisional period only. With the adoption of the Law on the Transfer of Pension Rights and Future Pension Rights (Anspruchs- und Anwartschaftsüberführungsgesetz, hereafter “transfer law”) of 25 July 1991 (see “Relevant domestic law and practice” below) this purpose had been accomplished. The transfer law did not provide for further allowance payments after 31 December 1991 but established that the number of years which the ballet dancer had worked on stage would be taken into consideration in calculating his monthly pension. On 2 July 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit A’s constitutional complaint. It referred to its leading judgment of 28 April 1999 (see “Relevant domestic law and practice” below), pursuant to which the pension rights acquired in the GDR fell within the scope of the Article 14 of the German Basic Law (Grundgesetz) protecting the right to property provided that the German Unification Treaty recognised them as legal claims within the united German legal system. Given that Article 9 of the German Unification Treaty prescribed that the allowance would not be transferred into the social and labour legislation of the FRG, however, it did not fall within the scope of Article 14 of the German Basic Law. It could accordingly be left undecided whether the allowance could be considered a pension. There had never been a legitimate expectation that the allowance would be transferred into the united German legal system, as in the legal system of the GDR, the allowance had already amounted to a preferential treatment. Besides, although the allowance was not based on contributions of the beneficiary, the German legislator had in a way allowed for it by establishing in the transfer law that the years during which a person had been working as a ballet dancer of the GDR and thereby had qualified for the allowance would be taken into account for calculating the pension to be paid to that person. The decision was served on A’s lawyer on 2 August 2002.  2. Applicant Vogt Applicant Vogt (V) worked as a ballet dancer for national companies of the GDR for over 15 years. In 1989 she terminated her stage career and was subsequently paid an allowance of 686, 50 marks per month until its suspension on 31 December 1991. On 21 December 1992 V brought an action for declaration (Feststellungsklage) that, once she was going to receive an old-age or an invalidity pension, the Federal Insurance Office for Employees (Bundesversicherungsanstalt für Angestellte) would be obligated to pay her the allowance in addition to her pension. On 25 January 1994 the Dresden Social Court rejected her action. It argued that V had no valid claim to any allowance payments beyond 31 December 1991 as the German Unification Treaty put a definitive end to such payments as of that date. The transfer law determined, however, that the years during which a person had been working as a ballet dancer for the GDR and thereby qualified for the allowance had to be taken into account to calculate the pension of that person. In this way the transfer law integrated the allowance into the pension system of the FRG but did not provide for allowance payments in addition to the pension. On 27 July 1994 the Sachsen Social Court of Appeal quashed the decision of the Social Court and declared V’s action inadmissible. On 14 September 1995 the Federal Social Court (Bundessozialgericht) rejected most of V’s appeal on points of law. It argued that the FRG was not the universal legal successor (Gesamtrechtsnachfolgerin) of the GDR and that the Unification Treaty determined which duties of the GDR had been transferred to the FRG and the Länder. The allowance as such had been abolished and would therefore not be paid in addition to a future pension. On 2 July 2002 the Federal Constitutional Court refused to accept V’s constitutional complaint in a joint decision also dealing with A’s and B’s constitutional complaints. The decision was served on V’s lawyer on 2 August 2002. 3. Applicant Bertling Applicant Bertling (B) worked as a ballet dancer for the Brandenburger Theater until February 1976. In 1976 she terminated her stage career and was subsequently paid an allowance of 304 marks per month until its suspension on 31 December 1991. On 23 December 1992 B brought an action with the Brandenburg District Court (Kreisgericht), requesting the further payment of the allowance and a declaration that once she was going to be served an old-age or an invalidity pension the Federal Insurance Office for Employees would be bound to pay her the allowance in addition to her pension. On 20 April 1993 the District Court referred the proceedings to the Potsdam Social Court. On 11 January 1994 the Potsdam Social Court rejected the applicant’s action. On 15 June 1995 the Brandenburg Social Court of Appeal rejected her appeal. On 29 April 1997 the Federal Social Court rejected her appeal on points of law. On 2 July 2002 the Federal Constitutional Court refused to entertain B’s constitutional complaint in a joint decision also dealing with A’s and V’s complaints. The decision was served on B’s lawyer on 2 August 2002. 1. The German Unification Treaty As a result of the German Reunification, which became effective on 3 October 1990, the GDR acceded to the FRG. The transition from a communist regime to a democratic system of market economy in the new Länder raised many issues relating to property rights in Germany, in particular regarding the transfer of former GDR citizens’ pensions. To achieve economic and legal unification, the FRG and GDR concluded several agreements on the fate of GDR legislation, such as the German Unification Treaty of 31 August 1990, in which they agreed, inter alia, that vested rights and expectations were transferred to the social security system of the FRG. However, payments made on the basis of special regulations (Sonderregelungen) would be checked for the purpose of stopping unjustified or excessive payments (mit dem Ziel, ..., ungerechtfertigte Leistungen abzuschaffen und überhöhte Leistungen abzubauen). The German Unification Treaty, besides containing several other declarations, laid down fundamental principles in that connection. It established, inter alia, which parts of GDR law were to be incorporated into the unified German legal system. Article 9 § 2 of the Treaty reads: “The law of the GDR mentioned in Appendix II is to remain in force in the unified system, with the restrictions set out in the Appendix, and provided that that law is compatible with the Basic Law (Grundgesetz) and the law of the EU which is directly applicable.” Appendix II, Chapter VIII, Section H, paragraph III, Nr. 6 inter alia reads: “a. The Regulations on the allowance to be paid to former ballet dancers are applicable until 31 December 1991. b. The Regulations can be amended until that date by a collective agreement (Tarifvertrag) or by a collective labour contract (Betriebsvereinbarung).” 2. The Transfer Law The Law on the Transfer of Pension Rights and Future Pension Rights (transfer law, Anspruchs- und Anwartschaftsüberführungsgesetz) determined how the numerous additional or special pension schemes (Zusatz- oder Sonderversorgungssysteme) were integrated into the united German pension system. Regarding the allowances examined here, it did not provide for them to be paid on top of the regular pension but prescribed that the number of years during which a ballet dancer had worked on stage would be taken into consideration for calculating the monthly pension. 3. Decisions of the Federal Constitutional Court On 28 April 1999 the Federal Constitutional Court issued four leading judgments concerning the method used to deal with former GDR citizens’ pension rights. It determined that the pension rights acquired in the GDR fell within the purview of Article 14 of the German Basic Law (right to property), provided that the German Unification Treaty recognised them as a legal claim within the united German legal system. It furthermore examined the constitutionality of the transfer law and established which provisions of it were contrary to the Basic Law. In all these cases judge Papier of the Federal Constitutional Court had declared himself biased. In 1994 the Federal Ministry of Social Affairs had commissioned him to examine the constitutionality of the transfer law. He withdrew from the bench making reference to the expert opinion he had rendered and where he had examined the constitutionality of the transfer law. The Federal Constitutional Court accepted his withdrawal and decided without his participation.