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LIPSKI v. the FEDERAL REPUBLIC OF GERMANY

Doc ref: 15688/89 • ECHR ID: 001-797

Document date: December 3, 1990

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LIPSKI v. the FEDERAL REPUBLIC OF GERMANY

Doc ref: 15688/89 • ECHR ID: 001-797

Document date: December 3, 1990

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 15688/89

by Meta LIPSKI

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 3 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 August 1989

by Meta Lipski against the Federal Republic of Germany and registered

on 25 October 1989 under file No. 15688/89;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, living in Gelsenkirchen.

She is represented by Mr. M. Stolz, a lawyer in Gelsenkirchen.

On 26 October 1985 the applicant brought an action before the

comptent Labour Court (Arbeitsgericht) in Gelsenkirchen against her

employer, a catholic community in charge of a hospital where she is

working as an assistant nurse. Being a widow having to care for her

two children born in 1963 and 1965 she claimed a paid day off work

each month in order to work in her household.

This claim was based on Section 1 of a 1948 Act of Northrhine-

Westphalia containing holiday regulations for women with a household,

hereinafter referred to as 1948 Act (Gesetz über Freizeitgewährung

für Frauen mit eigenem Hausstand). It appears that the Federal Labour

Court (Bundesarbeitsgericht) decided in 1962 that Section 1 of this

Act applied not only to married women but also to women who no longer

lived with the partner but had their own household. However, the

Federal Constitutional Court (Bundesverfassungsgericht) decided on

13 November 1979 that the Section was incompatible with the principle

of equality before the law as guaranteed by Article 3 (2) of the Basic

Law (Grundgesetz) insofar as it guaranteed a free household-day to

female but not to male singles.

As a consequence of the Federal Constitutional Court's

decision of 13 November 1979 the Federal Labour Court held on

26 January 1982 that neither single men nor single women could derive

any rights from Section 1 of the 1948 Act as the Section was

unconstitutional. According to the Federal Labour Court proceedings

relating to claims raised under this provision therefore had to be

adjourned pending a legislative amendment to the 1948 Act.

Following this jurisprudence the Gelsenkirchen Labour Court

decided on 4 March 1986 to adjourn the examination of the applicant's

case. The applicant's appeal (Beschwerde) against this decision was

rejected by the Regional Labour Court (Landesarbeitsgericht) in Hamm

on 19 June 1986. The Regional Court stated in agreement with the

Federal Labour Court that no ordinary court could apply a statutory

provision that had been declared unconstitutional. It was exclusively

for the legislator to draw the consequences of this unconstitutionality.

Different solutions were available to the legislator, inter

alia, it could be decided to abolish the regulation in question

altogether. The ordinary courts therefore had to wait for a solution

which would eventually be adopted by the legislator.

The applicant then lodged a constitutional complaint

(Verfassungsbeschwerde) which is still pending before the Federal

Constitutional Court. The Court informed her by letter of 31 March 1989

that, for the time being, no indication could be made as to when a

decision would be taken in her case.

COMPLAINTS

The applicant submits that Section 1 of the 1948 Act is still

in force and applicable to married women. She therefore considers

that as a single she has a right to be treated equally and to claim a

paid household day. Consequently, she considers that her labour court

action related to a civil right. She complains under Article 6 para. 1

of the Convention of the length of proceedings.

THE LAW

The applicant invokes the right to obtain a final decision

within a reasonable time as guaranteed by Article 6 para. 1 (Art. 6-1)

of the Convention.

However, this provision extends only to disputes over civil

rights and obligations which can be said, at least on arguable

grounds, to be recognised under domestic law (Eur. Court H.R., Lithgow

and others judgment of 8 July 1986, Series A, p. 70 para. 192).

The labour court proceedings complained of relate to a claim

based on Section 1 of an Act of 1948 which has been declared

unconstitutional by the Federal Constitutional Court insofar as this

provision had been interpreted by the labour courts as granting a free

household-day not only to married women but also to female singles

with a household. According to the German courts this provision is

therefore inapplicable to female singles and it is considered

the task of the German legislator to draw the consequences of the said

Constitutional Court's decision.

In these circumstances the applicant does not, for the time

being, have an arguable claim to a free household-day and Article 6

para. 1 (Art. 6-1) is therefore not applicable to the proceedings

in question.

It follows that the application is incompatible ratione

materiae with the provisions of the Convention and has to be rejected

in accordance with Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

LEXI

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