LENZ v. GERMANY
Inadmissible
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. 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. 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. 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.