Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20458/92

A. P.

against

Austria

REPORT OF THE COMMISSION

(adopted on 15 October 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-23) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 24-39) . . . . . . . . . . . . . . . . . . . . .4

A. Complaint declared admissible

(para. 24). . . . . . . . . . . . . . . . . . . . .4

B. Point at issue

(para. 25). . . . . . . . . . . . . . . . . . . . .4

C. Article 14 of the Convention in conjunction with

Article 8

(paras. 26-38). . . . . . . . . . . . . . . . . . .4

1. Applicability of Article 14 of the Convention

(paras. 26-32) . . . . . . . . . . . . . . . .4

2. Compliance with Article 14 of the Convention

(paras. 33-38) . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 39). . . . . . . . . . . . . . . . . . . . .7

DISSENTING OPINION OF MRS. G.H. THUNE JOINED BY

MM. J.-C. GEUS AND P. LORENZEN. . . . . . . . . . . . . . . .8

DISSENTING OPINION OF MR. F. MARTINEZ . . . . . . . . . . . 10

DISSENTING OPINION OF MR. E.A. ALKEMA . . . . . . . . . . . 11

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Austrian citizen born in 1950 and resident

in Vienna. He was represented before the Commission by Mr. A. Laimer,

a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador F. Cede, Head

of the International Law Department at the Federal Ministry of Foreign

Affairs.

4. The case concerns the refusal of the Austrian labour authorities

to grant parental leave payments and the alleged discriminatory nature

of this refusal. The applicant invokes Article 14 of the Convention

in conjunction with Article 8 of the Convention.

B. The proceedings

5. The application was introduced on 3 August 1992 and registered

on 10 August 1992.

6. On 11 January 1994 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 6 April 1994,

after an extension of the time-limit. The applicant replied on

29 June 1994 after an extension of the time-limit. On 27 June 1995 the

Commission transferred the case from the First Chamber to the Plenary.

8. On 5 July 1995 the Commission declared admissible the applicant's

complaint concerning the denial of parental leave payments and the

alleged discriminatory nature of this decision. It declared

inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 19 July 1995 and they were invited to submit such

further information or observations on the merits as they wished.

No such observations were submitted.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

12. The text of this Report was adopted on 15 October 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. The applicant was at the relevant time a student with part-time

employment. His wife had already finished her university education and

was a civil servant in a Federal Ministry. On 27 February 1989 his wife

gave birth to a child. She continued to exercise her profession while

the applicant took parental leave and took care of the child.

17. On 25 April 1989 the applicant made a request for parental leave

payments (Karenzurlaubsgeld).

18. On 26 May 1989 the competent labour office (Arbeitsamt) dismissed

the applicant's request on the ground that parental leave payments

could only be claimed by mothers on the occasion of maternity.

According to Section 26 para. 1 of the 1977 Unemployment Insurance Act

(Arbeitslosenversicherungsgesetz), mothers had, at the relevant time,

a claim to parental leave payments if they took leave on account of

maternity for up to one year and if they had been eligible for

maternity allowance (Wochengeld), a social benefit paid to employed

mothers during eight weeks immediately after the birth of the child.

19. On 14 June 1989 the applicant appealed. He submitted that the

provision of the Unemployment Insurance Act by which men were excluded

from parental leave payments was discriminatory and therefore

unconstitutional.

20. On 4 July 1989 the Regional Vienna Labour Office

(Landes-arbeitsamt) dismissed the applicant's appeal, on the ground

that, according to the law, only mothers qualified for such payments.

21. On 18 August 1989 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof). He submitted that

Section 26 para. 1 of the Unemployment Insurance Act, which granted

only mothers a claim to parental leave payments, was unconstitutional.

He relied on the principle of equality under the Federal Constitution

and on Article 8 of the Convention.

22. On 12 December 1991 the Constitutional Court declined to deal

with the applicant's complaint. It referred to its previous case-law,

according to which the legislative provisions applied in the

applicant's case did not violate constitutional rights and were

compatible with Articles 8 and 12 of the Convention. Even having

regard to recent legislative amendments which brought the regulation

in question in line with changing conditions (Anpassung an geänderte

Verhältnisse), the applicant's complaint was unfounded as the

legislature was free to fix the date as from which new rules should

apply.

23. In the meantime, Section 26 of the Unemployment Insurance Act had

been amended by a Federal Act of 12 December 1989 (Federal Law Gazette

651/1989), which had entered into force on 1 January 1990. The new

version provides for a claim by a father to parental leave payments if

he is employed, lives with the child in a common household, and

predominantly cares for the child himself and if either the mother is

entitled to parental leave because of her motherhood and has partly or

fully renounced her claim or the mother is not entitled to go on

parental leave but is prevented from caring for her child by her

employment. However, the new regulation only applied in respect of

children born after 31 December 1989. As the applicant's child had

been born on 27 February 1989, the new regulation did not apply to him.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

24. The Commission has declared admissible the applicant's complaint

concerning the denial of parental leave payments to the applicant as

a father and the alleged discriminatory nature of this decision.

B. Point at issue

25. Accordingly, the issue to be determined is whether there has been

a violation of Article 14 of the Convention in conjunction with

Article 8 (Art. 14+8) of the Convention.

C. Article 14 of the Convention in conjunction with Article 8

(Art. 14+8)

1. Applicability of Article 14 (Art. 14) of the Convention

26. Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

27. Article 8 (Art. 8) of the Convention reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

28. In the Government's view, Article 14 (Art. 14) of the Convention

does not apply in the present case, since Article 8 (Art. 8) of the

Convention does not guarantee a right to parental leave payments.

29. The Commission recalls that Article 14 (Art. 14) of the

Convention complements the other substantive provisions of the

Convention and its Protocols. It has no independent existence since

it has effect solely in relation to "the enjoyment of the rights and

freedoms" safeguarded by those provisions. Although the application

of Article 14 (Art. 14) of the Convention does not presuppose a breach

of those provisions - and to this extent it is autonomous -, there can

be no room for its application unless the facts at issue fall within

the ambit of one or more of the latter (Eur. Court HR, Abdulaziz,

Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985,

Series A no. 94, p. 35, para. 71; Karlheinz Schmidt v. Germany judgment

of 18 July 1994, Series A no. 291-B, p. 32, para. 22, Gaygusuz

v. Austria judgment of 16 September 1996, para. 36, to be published in

Reports of Judgments and Decisions for 1996). However, "... a measure

which in itself is conformity with the requirements of the Article

ensuring the right or freedom in question may ... infringe this Article

when read in conjunction with Article 14 (Art. 14) for the reason that

it is of a discriminatory nature" (Eur. Court HR, Belgian Linguistic

judgment of 23 July 1968, Series A no. 6, p. 33).

30. The question therefore arises whether or not the facts at issue

fall within the ambit of Article 8 (Art. 8) of the Convention and,

hence, of Article 14 (Art. 14) of the Convention.

31. In this respect the Commission recalls that the denial of the

payments in question does not as such constitute an interference with

the right to respect for family life as Article 8 (Art. 8) does not

extend so far as to impose on States a general obligation to provide

for financial assistance to individuals in order to enable one of two

parents to stay at home to take care of children (cf. No. 11776/85,

Dec. 4.3.86, D.R. 46 p. 251 and the Commission's decision as to the

admissibility of the present application). The financial assistance

here in question, namely parental leave payments, is nevertheless

destined to promote family life and thus constitutes a specific

regulation by which the State, in the exercise of its margin of

appreciation, discharges its duty under Article 8 (Art. 8) of the

Convention to show respect for family life. Since the legislation in

question therefore comes within the scope of Article 8 of the

Convention, Article 14 (Art. 8+14) also applies in conjunction with

that provision.

32. The Commission therefore has to examine whether the difference

in treatment between fathers and mothers as regards the eligibility to

parental leave payments amounts to discrimination prohibited by

Article 14 (Art. 14) of the Convention.

2. Compliance with Article 14 (Art. 14) of the Convention

33. The applicant submits that social benefits, like parental leave

payments, have to be granted without discrimination. Since he was

excluded from these benefits merely because he was a man, he is the

victim of discrimination on the ground of sex in breach of Article 14

(Art. 14) taken in conjunction with Article 8 (Art. 8) of the

Convention. He also points out that parental leave and the granting

of parental leave payments can only be claimed after the expiry of the

eight week period after birth during which the mother enjoys a special

protection (Mutterschutzfrist - motherhood protection period) and is

eligible for maternity allowance. Thus, parental leave does not

specifically protect mothers but also fathers who intend to take leave

in order to care for a newborn child.

34. The Government submit that no common standard among Contracting

States exists with regard to parental leave or parental leave payments

as only a small number of Contracting States provide for these social

benefits. In view of the lack of such a common standard, the Austrian

legislature's decision not to grant fathers parental leave or parental

leave payments is covered by the margin of appreciation granted to the

Contracting States in decisions on social policy. Therefore the

situation under Austrian law about which the applicant complains must

be considered to be in conformity with the provisions of the

Convention. The fact that the legislature subsequently reacted to

changes in social behaviour by amending the Unemployment Insurance Act

in 1989 cannot lead to the conclusion that the situation under the law

prior to the amendment was in violation of the Convention.

35. The Commission recalls that for the purpose of Article 14

(Art. 14) a difference in treatment is discriminatory if it "has no

objective and reasonable justification", that is if it does not pursue

a "legitimate aim" or if there is not a "reasonable relationship of

proportionality between the means employed and the aim sought to be

realised". Moreover the Contracting States enjoy a certain margin of

appreciation in assessing whether and to what extent differences in

otherwise similar situations justify a different treatment. The

advancement of the equality of the sexes is today a major goal in the

member States of the Council of Europe; this means that very weighty

reasons have to be put forward before the Convention organs could

regard a difference in treatment based exclusively on the ground of sex

as compatible with the Convention (Eur. Court HR, Schuler-Zgraggen

v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22,

para. 67; Burghartz v. Switzerland judgment of 22 February 1994,

Series A no. 280-B, p. 29, para. 27; Karlheinz Schmidt v. Germany

judgment, loc. cit. pp. 32-33, para. 24).

36. The Commission observes that a claim to the parental leave

payments in question only exists after the mother's claim for maternity

allowance has expired. The purpose of maternity allowances and the

motherhood protection period relating thereto, which cover a period of

eight weeks immediately after the birth of the child, is clearly to

give the mother time to recover from the period of pregnancy and the

strain of giving birth. Parental leave and parental leave payments,

however, relate to subsequent periods and it appears that their purpose

is to enable the beneficiary to personally take care of the newborn

child. The Commission cannot see why fathers, who are willing to do

so, could not take over this task. This was also the opinion of the

Austrian legislature which in 1989 by an amendment to the Unemployment

Insurance Act extended the possibility of parental leave and parental

leave payments to the father of a child.

37. The Government argue that with regard to parental leave and

parental leave payments no common standard exists among Contracting

States so that a difference in treatment between the sexes in respect

of these benefits is in compliance with the Convention. The Commission

finds that the lack of a common standard with regard to specific social

benefits reflects the great variety of existing social security schemes

in the member States which, moreover, must be seen in the context of

the diverging legal frameworks in the field of labour, civil service

and industrial law. However, the lack of a common standard cannot

absolve Contracting States which have opted for a specific scheme of

parental leave payments from granting these benefits in a non-

discriminatory manner.

38. The Commission therefore finds that no objective and reasonable

grounds have been shown, which could justify the difference in

treatment complained of. Accordingly, the applicant has been

discriminated against in his right to respect for his family life as

guaranteed by Article 8 (Art. 8) of the Convention.

CONCLUSION

39. The Commission concludes, by 25 votes to 5, that in the present

case there has been a violation of Article 14 of the Convention in

conjunction with Article 8 (Art. 14+8) of the Convention.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF MRS. G.H. THUNE JOINED BY

MM. J.-C. GEUS AND P. LORENZEN

I have voted against the finding of a violation in the present

case as I do not consider that the applicant has been subjected to

discrimination contrary to Article 14 of the Convention.

According to the regulations applicable in Austria at the time

of birth of his child, the applicant was not able to obtain parental

leave payments. He considers this to be unreasonable as such payments

would have been granted to his wife if she had taken leave in order to

care for the baby.

One can very well understand the position of the applicant and

in my opinion full support should be given to those fathers who take

responsibility for their child by way of a full time care while the

mother is working. In my opinion the Contracting States should

certainly be encouraged to recognise the rights of fathers and children

to mutual contact by establishing social schemes including the right

to paternity payments. This is an essential precondition for more

equality between men and women and equally important for the

development and well-being of children.

The question raised under the Convention, however, is not whether

paternity payments to fathers is desirable and important, but whether

the applicant can be considered to have been subjected to

discrimination within the meaning of Article 14 in conjunction with

Article 8.

I can agree with the majority of the Commission that the

legislation in question falls to be considered under the broad scope

of Article 8, the aim being to promote family life between parents and

children, thus Article 14 is in principle applicable. I also accept

the approach of the European Court of Human Rights in the case of

Schuler-Zraggen according to which any difference in treatment based

exclusively on differences of sex must be justified by strong reasons

in order to be compatible with the Convention (Eur. Court HR,

Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A

no. 263, pp. 21-22, para. 67).

Following the case-law of the Court, the questions to be

addressed under Article 14 is whether the categories of persons treated

differently are in analogous positions, whether the aim of the

differentiation is legitimate and whether the means used are

proportionate having regard to the margin of appreciation afforded the

national authorities.

I consider that there are important differences between the

mother and the father of a newborn child not only during the period

immediately following the birth, as has been accepted by the majority,

but for a considerably longer period. The majority states in paragraph

36 that the main purpose of short term maternity allowances is to give

the mother time to recover. This approach seems to me to be somewhat

narrow. The reason for granting women a right to maternity leave is

also to provide them with a possibility to give the child proper care

during its early life by way of close and undisturbed contact,

including breast-feeding. In the struggle for greater equality between

men and women also in the relationship with their children we should

not overlook the very fact that women are those who actually give

birth.

Accordingly, I find it difficult to say that the situation of a

mother is analogous to that of the father during the period following

the birth of a child.

A consequence of the majority opinion would be to reproach a

state for granting maternity leave to women without instantly providing

men with equal benefits. This is not yet common ground in most

contracting states. On the contrary, the social development in this

field has generally commenced through the establishment of a

possibility for women to care for their newborn child. Only at a later

stage have similar possibilities been granted to fathers. I do not

consider such an approach to be neither unreasonable nor unjustified.

For this reason I fail to see that the way in which the social benefits

in this field have been enacted in Austria can be considered

discriminatory towards men. It appears that following recent

legislation Austrian fathers now in fact have obtained a right to

paternity leave.

For these reasons I do not find any violation of Article 14 in

conjunction with Article 8 of the Convention in the present case. I

would add that, even if the father and mother of a newborn child were

in a "relevantly similar" position, the refusal of benefits to the

father would nevertheless be compatible with the margin of appreciation

afforded to the States. In this respect I agree with Mr. Alkema.

(Or. français)

OPINION DISSIDENTE DE M. F. MARTINEZ

Je ne vois pas de violation dans les circonstances de l'espèce.

L'article 8 de la Convention oblige les Etats membres au respect

de la vie privée de toute personne et il interdit toute ingérence d'une

autorité publique qui ne serait pas admise par le paragraph 2.

Il est vrai que l'article 14 exige que la jouissance des droits

et libertés reconnus dans la Convention soit assurée sans distinction

aucune fondée sur le sexe; mais cela est limité à la jouissance des

droits contenus dans la Convention.

Si un Etat veut bien donner aux hommes ce qu'il ne donne pas aux

femmes ou vice-versa, cette distinction, même si elle suppose une

discrimination, ne tombe pas sous le contrôle des organes de la

Convention, à moins que cette discrimination ne porte pas sur un droit

reconnu par celle-ci.

Il s'ensuit que si l'article 8 de la Convention n'impose pas aux

Etats l'obligation d'octroyer une prime aux mères, ils sont libres de

le faire sans pour autant être obligés d'accorder la prime aux pères.

Si nous pensons que tout avantage alloué à titre gracieux aux

mères doit obligatoirement l'être à l'égard des pères, nous tombons

dans la conception de l'égalité des sexes comme un droit absolu ou

autonome. Mais telle n'est pas la portée de l'article 14 de la

Convention.

Par ces motifs je considère la présente requête comme

incompatible avec les dispositions de la Convention.

(Or. English)

DISSENTING OPINION OF MR. E.A. ALKEMA

I regret not to be able to agree with the Commission's majority

for the following reasons.

The applicant complains that he was discriminated since he was

denied parental leave payments and relies on Article 8 in conjunction

with Article 14 of the Convention.

The Convention does not guarantee a right to parental leave

payments as such. Nevertheless, for the reasons set out in the Report,

the case comes within the scope of both provisions. Moreover, on

similar grounds, Article 5 of Protocol No. 7, securing equality of

rights to spouses in their relations with their children, might be

applicable. However, neither the applicant nor the majority refer to

this Protocol, although it is in force for Austria since

1 November 1988.

For discrimination to be established it is, according to the

case-law, necessary to test whether the categories of persons are in

an analogous position, whether the aim of the differentiation is

legitimate and whether the means used are proportionate.

It may be noted first that here the distinction is drawn between

mothers and fathers, i.e. between parents only, and that the leave

payments are not available for other relatives e.g. grandparents

(cf. Article 26 (2) of the Convention of the Rights of the Child 1989;

ratified by Austria in August 1992). Furthermore, it may be noted that

the Court with regard to matters of parenthood does not require a

strict equality between the mother and the father of the child

(Eur. Court H.R., Rasmussen v. Denmark judgment of 28 November 1984,

Series A no. 87, p. 15, paras. 40-42).

It may be added that the idea of public support to both parents

for leave in order to take care of their children is relatively young.

It was laid down in general terms as lately as 1989 in Article 19 (2)

of the Convention for the Protection of the Child. Until then, at

least in international law, the emphasis was rather on protecting the

mother and child (see e.g. Article 17 of the European Social Charter).

Apparently, notions with respect to this matter are evolving.

Usually the Court will apply a strict scrutiny in matters of

discrimination based on sex. A case in point is Eur. Court H.R.,

Abdulaziz and others v. the United Kingdom judgment of 28 May 1984,

Series A no. 94, p. 37, para. 78. Yet, in that case the Court was

inclined to uphold the impugned difference in treatment if it were

established that the impact of immigrant women on the labour market

would have been proved to be important (loc. cit., para. 79). This and

the considerations mentioned before militate in favour of a flexible

test with regard to discrimination in the instant case.

In my opinion the introduction in 1989 of the leave payment for

mothers only cannot be said to be illegitimate. At the material time

there was certainly no common standard among the laws of Contracting

States (Eur. Court H.R., Rasmussen v. Denmark judgment, loc. cit.,

p. 15, para. 40).

Neither is there disproportionality with regard to the difference

arising between the applicant and other parents after 1 January 1990,

when the law abolished the difference in treatment between fathers and

mothers for children born as from that same date. In matters of social

security and of social benefits the fixing of certain dates for the

entitlement to those benefits is hardly avoidable. There is no

indication that this date was fixed arbitrarily. Besides, introducing

parental leave for newly born children seems rational in view of the

special care required by very young children.

It can be concluded that the impugned legislation stayed well

within the margin of appreciation to be applied, also with respect to

Article 14 (Eur. Court H.R., Rasmussen v. Denmark judgment, loc. cit.,

p. 15, para. 40), the more so since that legislation affected the

applicant a short period only (less than one year).

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A. P. v. AUSTRIA

A. P. v. AUSTRIA

LEXI