PROCEDURE

The case originated in an application (no. 19124/02) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Ms Gisela Kirsten (“the applicant”), on 1 May 2002.

The applicant was represented by Mr K.H. Christoph, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice.

On 2 May 2005 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1944 and lives in Berlin.

From 1960 to 1979 she worked as a ballet dancer for the Erich-Weinert-Ensemble (EWE), a national company of the German Democratic Republic (GDR). In 1979 she terminated her career on stage and worked for the company as a set and costume designer.

The EWE paid the applicant her wages as a costume and set designer and, in addition, a monthly allowance in the amount of 588 GDR marks (hereafter „the allowance“). The allowance was paid by virtue of the regulation of the Minister of Culture (Anordnung über die Gewährung einer berufsbezogenen Zuwendung an Ballettmitglieder in staatlichen Einrichtungen der DDR) of 1 September 1976. Pursuant to this regulation former members of ballets in the GDR were paid an allowance at the end of their career on stage. The allowance 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 former employer. Once the former dancer received an old-age or invalidity pension the allowance was regularly paid by the National Insurance of the GDR (Staatliche Versicherung der DDR).

After the reunification of the GDR and the Federal Republic of Germany (FRG) the EWE which formerly belonged to the National People's Army (Nationale Volksarmee) of the GDR was incorporated into the organisation of the Federal Ministry of Defence of the FRG. The Ministry took over the contracts with the company's staff and continued to pay the applicant her wages and the allowance. The allowance and the retirement pensions were moreover converted and paid in German Marks (DEM).

On 1 January 1992 the Ministry discontinued all allowance payments to former ballet dancers with reference to Article 9 § 2 in conjunction with Appendix II, Chapter VIII, Section H, paragraph III Nr. 6 of the German Unification Treaty.

In December 1992 the applicant brought an action with the Berlin Social Court claiming the payment of the allowance.

On 24 August 1994 the Federal Social Court ruled in a leading judgment that the social courts had no jurisdiction over disputes concerning the allowance. It found that those disputes belonged to the realm of civil – and more specifically – labour law, inter alia because the granting and the amount of the allowance were so closely linked to the contract of employment and in particular to the respective wages.

On 13 January 1995 the Berlin Social Court referred the applicant's case to the Frankfurt/Oder Labour Court.

On 15 May 1996 the Frankfurt/Oder Labour Court ordered the Ministry of Defence to pay the applicant DEM 28,224 and the monthly allowance as of January 1996. It pointed out that the wording of the pertinent provision of the German Unification Treaty was ambiguous. The provision could be interpreted as setting 31 December 1991 as the final date to qualify for the allowance or as terminating permanently the allowance payments from that date onwards. However, in view of the principle of the protection of legitimate expectations (Vertrauensschutz) the allowance payments could not be permanently discontinued without an explicit and a precise regulation in the German Unification Treaty. Therefore the provision had to be construed as setting 31 December 1991 as the final date to qualify for the allowance.

On 13 May 1998 the Brandenburg Regional Labour Court quashed the decision of the Frankfurt/Oder Labour Court and rejected the applicant's action. It admitted that the wording of the pertinent provision was ambiguous. Referring to the leading judgment on the allowance of the Federal Labour Court dated 24 March 1998, it construed the provision as terminating the allowance payments as of 31 December 1991. It argued that the allowance had been paid out of public funds and was an atypical benefit granted by the GDR. Therefore it would have been necessary to rule explicitly that the allowance was to be transferred into the united German legal system. The judgement was served on the applicant on 15 October 1998. The applicant subsequently lodged an appeal on points of law.

On 8 November 1998 the applicant lodged a constitutional complaint of approximately fifty pages with the Federal Constitutional Court. She inter alia complained that the length of the proceedings - which were still pending before the Federal Labour Court - violated Article 6 of the Convention.

On 26 January 1999 the Federal Labour Court rejected the applicant's request for leave to appeal on points of law.

In March 1999 the applicant submitted another fifty pages of observations to the Federal Constitutional Court.

On 2 July 2002 the Federal Constitutional Court delivered a leading decision on the ballet dancers' allowance. It referred to its leading judgment of 28 April 1999, pursuant to which the pension rights acquired in the GDR fell within the scope of Article 14 of the German Basic Law protecting the right to property provided that the German Unification Treaty recognised them as legal claims within the united German legal system. The impugned allowance did accordingly not fall within the scope of Article 14 of the German Basic Law as Article 9 of the German Unification Treaty prescribed that it would not be transferred into the social and labour legislation of the FRG. Furthermore, 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.

On 4 July 2002 the Federal Constitutional Court refused to admit the applicant's constitutional complaint with reference to its leading decision of 2 July 2002. The decision was served on the applicant's lawyer on 3 August 2002.