FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4290/03
by Klaus Dieter PETERKE and Kurt LEMBCKE
against Germany
The European Court of Human Rights (Fifth Section), sitting on 4 December 2007 as a Chamber composed of:
	Mr	 President,
	Mr	
	Mr	
	Mrs	
	Mr	
	Mrs	
	Mr	 judges,
and Mrs C. , Section Registrar,
Having regard to the above application lodged on 30 January 2003,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Klaus Dieter Peterke and Mr Kurt Lembcke, are German nationals who were born in 1935 and 1934 respectively and live in Potsdam and Weimar.
They are represented before the Court by Mr K. H. Christoph, a lawyer practising in Berlin.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were citizens of the GDR and contributed to the pension system of the GDR (see “Relevant domestic law” below).
1.  The applicant Peterke
The applicant, an engineer by profession, contributed to the compulsory general pension scheme and the optional supplementary pension scheme. On 22 August 1995 the Federal Insurance Fund for Salaried Employees (Bundesversicherungsanstalt für Angestellte – hereinafter referred to as “Insurance Fund”) provided the applicant with information as to his contribution periods and the basis for the calculation of his pension (Kontenklärungsbescheid und Rentenauskunft). On 13 March 1996 the Insurance Fund rejected the applicant’s objection. On 22 April 1996 the Insurance Fund fixed the applicant’s amount of pension, while the applicant’s action against the aforementioned decisions was already pending before the Social Court. The Insurance Fund took into account the applicant’s contributions to the GDR optional supplementary pension scheme, but only up to the social security contribution ceiling for the FRG (Beitragsbemessungsgrenze - West) according to section 256a in conjunction with section 260 sentence 2 of Social Code No. 6.
On 13 October 1997 the Berlin Social Court rejected the applicant’s action as unfounded. The applicant then lodged an appeal arguing that he was entitled to a higher pension and complained about the application of the social security contribution ceiling. While the appeal proceedings were pending the applicant lodged a constitutional complaint with the Federal Constitutional Court in March 1998 making the same complaints. 
On 6 August 2002 the Federal Constitutional Court refused to admit the applicant’s complaint for the following reasons. Assuming the complaint’s admissibility the Court found that the application of the social security contribution ceiling to the applicant’s contributions neither violated his right of property nor constituted discrimination (see Klose and Others 
v. Germany (dec.), no. 12923/03, 25 September 2007). On 26 January 2005 the Social Court of Appeal rejected the applicant’s appeal on points of law. It clarified that only the decision of 22 April 1996 had been the subject of the proceedings, since it had replaced the foregoing decisions. Furthermore, the court refused the applicant leave to appeal on points of law. 
On 16 January 2006 the Federal Social Court rejected the applicant’s complaint.
2.  The applicant Lembcke
The applicant is an architect by profession. In the GDR he also made contributions to an additional pension scheme open to architects. He retired in June 1997. Pursuant to the legislation in force his contributions to the additional pension scheme were not taken into consideration (see Klose, cited above). Both his objection and his action were to no avail. While his appeal was pending before the Social Court of Appeal, the applicant’s pension was increased on 1 July 2000, as every year. However, while the pensions are regularly adjusted to the development of wages and salaries each year, the increase of 1 July 2000 was solely compensation for inflation (see Klose, cited above).
On 28 February 2001 the Berlin Social Court of Appeal rejected his appeal refusing him leave to appeal on points of law. The court found that the applicant’s pension had been correctly calculated and that there was no legal basis for a higher amount of pension.
On 28 May 2002 the Federal Social Court rejected the applicant’s complaint as inadmissible. On 5 August 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint holding that it was inadmissible.
B.  Relevant domestic law
In the GDR there were a compulsory general pension scheme (Sozialpflichtversicherung) and an optional supplementary pension scheme (Freiwillige Zusatzrentenversicherung). Furthermore, there were additional pension schemes which were open to certain professions and groups and which led to a considerable increase of the old-age pension.
For a more detailed overview of the GDR pension system, its transfer to the Federal Republic of Germany (“FRG”) and the calculation of pensions see the Court’s recent decision in the case of Klose and Others (cited above).
COMPLAINTS
Invoking Article 1 of Protocol No. 1 and Article 14 of the Convention the applicant Peterke complained about the amount of his pension, and in particular about the application of the social security contribution ceiling. Furthermore, he complained about the cut-off date of 31 December 1996 for the protection of pension rights acquired under the general pension scheme and the optional supplementary pension scheme (see Klose, cited above). Lastly, the applicant submitted under Article 6 of the Convention that the length of proceedings had been excessive.
When lodging his application on 31 January 2003 the applicant Lembcke complained about the amount of his pension under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14. Furthermore, he complained under Article 6 that the vice-president of the Federal Constitutional Court had participated in his case. He submitted that that judge had drafted an expert opinion for the Federal Ministry of Labour and Social Affairs on the constitutionality of certain aspects of the transfer of GDR pension rights. Moreover, the applicant submitted that the domestic legislation was so confusing that no fair trial could be guaranteed. In his application form, submitted on 27 April 2004, the applicant also contested the length of the proceedings.
THE LAW
A.  The applicant Peterke
1. As far as the applicant complained under Article 1 of Protocol No. 1 and Article 14 the Court recalls that the transfer of pension rights acquired in the GDR and the methods of calculation, including the issues raised by the applicant, have been the subject of the Court’s recent decision in the case of Klose and Others (cited above). The Court held that the applicants in that case could not claim to have a legitimate expectation of pension rights going beyond the rights created by the German legislator following German Unification. The applicant’s complaints are therefore incompatible ratione materiae with the provisions of the Convention and the Protocols thereto and must be rejected pursuant to Articles 35 § 3 and 4 of the Convention.
2. Invoking Article 6 of the Convention the applicant complained about the length of the proceedings. He relied on Article 6 § 1 of the Convention, which as far as relevant provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.
B.  The applicant Lembcke
1. As regards the applicant’s complaints under Article 1 of Protocol No. 1 and Article 14 the Court notes that the issued raised by the applicant have already been the subject of the Court’s recent decision in the case of 
Klose and Others (cited above). The Court held that the applicants in that case could not claim to have a legitimate expectation of pension rights going beyond the rights created by the German legislator following German Unification. The same is true in the present case and the applicant’s complaints are therefore incompatible ratione materiae with the provisions of the Convention and the Protocols thereto and must be rejected pursuant to Articles 35 § 3 and 4 of the Convention.
2. Insofar as the applicant complained about the length of proceedings he raised this issue for the first time in his application form submitted on 27 April 2004 and thus more than six months after the final domestic decision rendered in his case on 5 August 2002. Thus, this part of the application should be rejected as inadmissible according to Article 35 §§ 1 and 4 of the Convention.
3. As far as the applicant complained about the participation of the vice-president of the Federal Constitutional Court he did not demonstrate that he challenged the judge for bias either before or after the court’s decision. Furthermore, there is no indication that the applicant had been denied a fair trial. Therefore, this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the complaint about the length of proceedings in respect of the applicant Peterke;
Declares the remainder of the application inadmissible.
	Claudia 	Peer 
	Registrar	President