CASE OF SÜSSMANN v. GERMANY
No violation of Art. 6-1
C. Russo;John Freeland;N. Valticos;R. Pekkanen
7. Mr Süßmann, a German national born in 1916, worked as a physicist in research institutes whose remuneration and pension system was the same as that of the civil service. 8. The applicant retired in 1980 and receives, in addition to the statutory pension, a supplementary pension (Versorgungsrente) paid to him by the Supplementary Pensions Fund of the Federation and the Länder (Versorgungsanstalt des Bundes und der Länder - VBL - "the Fund"). The Fund administers a supplementary old-age pensions scheme, which enables German civil servants or persons with an equivalent status to receive a progressive supplementary pension. 9. As the total of the sums paid under the general old-age pensions scheme and the civil service supplementary scheme regularly exceeded the last net civil service salary, employers’ and employees’ representatives reached an agreement to amend the rules governing the Fund. These amendments, which came into force in March 1982 and March 1984, also concerned persons who were already affiliated to the supplementary scheme or in receipt of a pension thereunder. On 16 March 1988, giving judgment in a series of test cases, the Federal Court (Bundesgerichtshof) upheld the validity of these amendments. 10. On 30 April and 31 May 1985 the Fund calculated the sum payable to the applicant under the amended scheme with the result that his supplementary pension was reduced. 11. The applicant appealed to the Arbitration Tribunal of the Supplementary Pensions Fund (Schiedsgericht der VBL), challenging, inter alia, the legality of the amendments made to the rules governing the scheme. 12. Under an arbitration agreement of 3 and 18 September 1985 Mr Süßmann and the Fund had recognised the jurisdiction of the Fund’s arbitration tribunals. 13. On 20 February 1987 the Arbitration Tribunal dismissed the applicant’s appeal. 14. On 11 May 1987 Mr Süßmann appealed from that decision to the Arbitration Appeals Tribunal of the Supplementary Pensions Fund (Oberschiedsgericht der VBL). 15. On 10 March 1989 the Appeals Tribunal likewise dismissed the applicant’s appeal finding that the reduction in his supplementary pension resulting from the amendment of the rules governing the Fund was not unlawful. 16. On 11 July 1988 the applicant lodged an appeal in the Federal Constitutional Court (Bundesverfassungsgericht) concerning the amendments to the Fund’s rules made in 1982 and 1984. Subsequently he also invoked other grounds. On 4 April 1989 he extended the scope of his appeal to cover the decision of the Arbitration Appeals Tribunal of 10 March 1989. 17. Sitting as a panel of three members, on 6 November 1991 the Second Section of the First Division (zweite Kammer des ersten Senats) of the Federal Constitutional Court declined to accept the case for adjudication on the ground that the prospects of its succeeding were insufficient. The Federal Constitutional Court noted that the appeal was inadmissible in so far as it raised for the first time issues of fact or of law that could have been pleaded in the ordinary courts. However, it found the remaining complaints admissible, in particular those relating to the unfair character of the proceedings in the Federal Court and the interference with the applicant’s right of property. As the Federal Court had ruled on the issues of fact and law at last instance in its judgments in the test cases of 16 March 1988, it was not necessary to file further appeals to exhaust the remedies in the ordinary courts. However, even in regard to the complaints declared admissible, the Federal Constitutional Court considered that the constitutional appeal lacked sufficient prospects of success. It gave the following reasons: 1. There had been no violation of the applicant’s right to be heard in a court (Recht auf Gewährung rechtlichen Gehörs). In particular there was nothing to suggest that the tribunals had not taken due account of evidence concerning the amendment of the Fund’s rules. The decisions were essentially based on two reports drawn up by expert commissions in September 1975 and November 1983. It had not been necessary to take additional evidence. 2. Even if it were accepted that pension rights came within the ambit of the constitutional right of property, there was nothing to indicate that there had been an infringement of that right. It was lawful to reduce pension rights by amending the rules which were of a private-law character. The Federal Court had held that the pensions under the scheme administered by the Fund were a matter of private law and this view had not been contested by the applicant. The Federal Court had moreover regarded the old-age pensions scheme in question as a collective insurance scheme (Gruppenversicherung), under which only the employers were considered to be insured, the employees (Arbeitnehmer) remaining mere beneficiaries (Bezugsberechtigte). Finally, the Federal Court had examined whether the amendment of the Fund’s rules had respected the interests of the employees and the principle of "good faith" (Treu und Glauben) and had taken the view that the measure in question had checked a development that was unacceptable socially and politically and had put an end to a situation that represented a considerable departure from the aims of the supplementary pensions scheme. In its opinion, the amendment of the rules was intended to consolidate all the old-age pensions schemes in order to meet the problems arising from economic and demographical changes and was based on a decision of principle taken by the employers’ and employees’ representatives. The Federal Constitutional Court concluded its reasoning in the following terms: "This application of the civil law does not infringe any fundamental right. The objective protection afforded by the right of property is not undermined by the classification of the insurance contract as group insurance, in which the employees are mere beneficiaries, or in the assessment of their individual interests. The argument that the public interest, and notably the interest of all employees in the consolidation of their pensions schemes, called for a reform of those schemes is plausible and is in any event not open to criticism from the point of view of constitutional law. The interests of employees regarded as beneficiaries may be adequately protected by the organisations that represent them. In view of the superior interest of all civil service employees in having a sound and affordable pensions scheme, a collective defence of those interests would seem objectively appropriate, as it is the sole means of ensuring the necessary balancing of interests within the group. Whatever the case may be, the objective substance of the right of property does not require additional protection of the individual beneficiary. The same applies to the assessment of the merits of the new rules. This is based on both the principle of proportionality and the need to protect confidence in the preservation of acquired pension rights." Nor, it added, did the reversal of case-law by the Federal Court, which had previously considered employees to be insured under the rules in question, interfere with the right of property, because case-law had no legislative force and could evolve. Finally, the Federal Constitutional Court observed that the amendment of the Fund’s rules did not breach the principle of equality before the law or that of the freedom of association. The applicant’s doubts as to the impartiality of the arbitrators were not relevant as the latter were not members of the judiciary, but sat on private-law arbitration tribunals. 18. The decision was notified to the applicant on 5 December 1991. 19. In the two years that followed the lodging of the applicant’s appeal in July 1988, the Second Section of the First Division dealt with twenty-four cases concerning the compatibility of the new rules of the Supplementary Pensions Fund with the Basic Law (Grundgesetz). Other appeals were lodged with it relating, inter alia, to redundancy notices served on employees (decision of 30 May 1991), an employer’s right to lock out strikers (decision of 26 June 1991) and the appeals filed by former civil servants of the German Democratic Republic challenging a provision of the Treaty on German Unification which terminated the employment contract of some 300,000 persons (decision of 24 April 1991). 20. Article 93 para. 1 of the Basic Law (Grundgesetz) provides as follows: "The Federal Constitutional Court shall rule: ... 4. (a) on constitutional appeals 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]." 21. The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht). 22. Sections 90 to 96 of that Act concern constitutional appeals lodged by individuals (see paragraph 20 above). At the material time the version adopted in 1985 (applicable with effect from 1 January 1986) was in force . "1. Any person who claims that one of his basic rights or one of his rights under Articles 20 (4), 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court. 2. If legal action against the violation is admissible, the complaint of unconstitutionality may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant. ..." "The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed." "A complaint of unconstitutionality shall require acceptance prior to a decision (Annahme zur Entscheidung)." "(1) A section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if 1. the complainant has not paid the required advance at all (section 34 (6)) or has not paid it on time, 2. the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons, or 3. the division is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of section 93c below. The order shall be final. (2) The section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because the Federal Constitutional Court has already decided on the relevant question of constitutional law ... (3) The decisions of the section shall be taken without oral pleadings. In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused, it is sufficient to refer to the legal aspect determining the refusal." "If the section neither refuses acceptance of a complaint of unconstitutionality nor upholds it, the division shall then decide on acceptance. It shall accept the complaint of unconstitutionality if at least two judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant. Section 93b (3) above shall apply mutatis mutandis." Section 94 provides for the right of third parties to be heard in appeal proceedings in the Federal Constitutional Court. "1. If the complaint of unconstitutionality is upheld, the decision shall state which provision of the Basic Law has been infringed and by which act or omission. The Federal Constitutional Court may at the same time declare that any repetition of the act or omission complained of will infringe the Basic Law. 2. If a complaint of unconstitutionality against a decision is upheld, the Federal Constitutional Court shall quash the decision and in cases pursuant to the first sentence of section 90 (2) above it shall refer the matter back to a competent court. 3. If a complaint of unconstitutionality against a law is upheld, the law shall be declared null and void. The same shall apply if a complaint of unconstitutionality pursuant to paragraph 2 above is upheld because the quashed decision is based on an unconstitutional law ..." 23. The Federal Constitutional Court Act was subsequently amended with a view to reducing the court’s workload. The amendments adopted in 1993 (which entered into force on 11 August 1993), among other things, reorganised the procedure for individual appeals (section 93a-93d of the 1993 Federal Constitutional Court Act).