AS TO THE ADMISSIBILITY OF

                            Applciation No. 12242/86

                            by Maximilian ROMMELFANGER

                            against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 6 September 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  A.S. GÖZÜBÜYÜK

                  J.-C. SOYER

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             Mr.  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             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 20 June 1986

by Maximilian Rommelfanger against the Federal Republic of Germany

and registered on 26 June 1986 under file No. 12242/86;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to:

      - the Commission's decision of 2 May 1988 to bring the

        application to the notice of the respondent Government

        and invite them to submit written observations on its

        admissibility and merits;

      - the observations submitted by the respondent Government on

        15 August 1988 and the observations in reply submitted by the

        applicant on 17 October 1988;

      - the parties' submissions at the oral hearing on

        6 September 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts as agreed by the parties may be summarised as follows.

        The applicant, a German citizen born in 1950, is a physician.

He is represented by Professor Wolfgang Däubler of the University of

Bremen.

        As from 1 February 1979 the applicant was employed as an

assistant physician in the hospital of a Roman Catholic foundation

(kirchliche Stiftung) in Essen.  The hospital provides medical

care for the public in general without distinction of faith.

About 80% of its staff of 630 employees, including 60 physicians,

are Roman Catholics.  Most of the remaining employees belong to

other churches.

        The position of the Roman Catholic church under constitutional

law in the Federal Republic of Germany is governed by Article 140 of

the Basic Law (Grundgesetz) read in conjunction with the Weimar

Constitution of 11 August 1919.

        Article 140 of the Basic Law provides:

        "The provisions of Articles 136, 137, 138, 139 and 141

        of the German Constitution of 11 August 1919 shall be

        an integral part of this Basic Law."

        Article 137 of the Weimar Constitution provides:

        "(1) There shall be no state church.

        (2)  Freedom of association to form religious bodies

             is guaranteed.  The union of religious bodies

             within the territory of the Reich shall not be

             subject to any restrictions.

        (3)  Every religious body shall regulate and administer

             its affairs independently within the limits of the

             law valid for all.  It shall confer its offices

             without the participation of the state or the

             civil community.

        (4)  Religious bodies shall acquire legal capacity

             according to the general provisions of civil law.

        (5)  Religious bodies shall remain corporate bodies under

             public law in so far as they have been such heretofore.

             ..."

        The applicant's contract contained a clause according to

which the employment relationship was to be governed by the guidelines

issued by the umbrella organisation of Catholic charities in Germany

(Richtlinien für Arbeitsverträge in den Einrichtungen des Deutschen

Caritas-Verbandes).  Rule 1 of these guidelines refers to the duties

which flow from charity (Caritas) as an essential expression of

christian life.  The employees are required to perform their services

in loyalty and to show a behaviour inside and outside their professional

functions which, as a whole, corresponds to the responsibility which

they have accepted.  It is presupposed that in performing their

professional duties they will be guided by christian principles.

Rule 16 further stipulates that both parties may terminate the

contract for important reasons without complying with the period of

notice.  Important reasons are, in particular, "breaches of loyalty or

gross violations of due respect towards members of the Caritas

organisation, leading persons or essential institutions of the

Catholic church, serious offences against moral principles of the

church or against State law, or other gross violations of professional

duties under these guidelines".  The guidelines are generally used in

employment contracts of Catholic institutions.

        In September 1979 the applicant, together with some fifty

persons including another physician of the same hospital, signed a

letter to the editor of the weekly magazine "Stern" which was

published in October under the headline "Physicians versus physicians'

representatives" ("Ärzte gegen Ärztefunktionäre").  It contained

criticism of the attitude of leading personalities in the medical

professional organisations concerning the abortion legislation

introduced in 1976.  In its current version Section 218a of the

Criminal Code (Strafgesetzbuch) provides that an abortion performed

by a doctor shall not be punishable if it is carried out with the

consent of the pregnant woman not later than twelve weeks after

conception and if it is indicated according to medical opinion "in

order to avert the danger of a distress which

        a) is so serious that the pregnant woman cannot

           be required to continue the pregnancy, and

        b) cannot be averted in any other way she can

           reasonably be expected to bear".

        The letter to the editor was couched in the following words:

(German)

        "Wir wehren uns mit diesem Aufruf besonders gegen

        die Angriffe, die von klerikal-konservativer und

        standesärztlicher Seite gegen die Praxis des der-

        zeitigen Paragraphen 218 geführt werden.  So ver-

        glich Dr.  Holzgartner, CSU-Funktionär und Vorstands-

        mitglied der Bayrischen Ärztekammer, den legalen

        Schwangerschaftsabbruch mit den Massenmorden der

        Nazis in Auschwitz.  Dr.  Karsten Vilmar, Präsident

        der Bundesärztekammer, wollte sogar bestreiten, dass

        es in einem so reichen Staat wie der BRD eine Not-

        wendigkeit zum Schwangerschaftsabbruch aus sozialer

        Notlage geben könne.  Wir sehen unsere Position zum

        Abtreibungsparagraphen 218 nicht durch die inhumanen

        Äusserungen des Präsidenten der Bundesärztekammer

        vertreten und distanzieren uns von diesen und ähnlichen

        Versuchen, eine notwendige und sinnvolle Entwicklung

        zu hemmen.  Wir kennen aus eigener beruflicher Praxis

        die z.T. unlösbaren Schwierigkeiten von Frauen in

        unserem Land, die ungewollt schwanger geworden sind."

(English translation)

        "By this proclamation we wish to express disapproval,

        in particular, of the attacks made by clerical conserva-

        tive circles and representatives of the medical profession

        against the practice under the current Section 218.  Thus

        Dr.  Holzgartner, a functionary of the CSU and member of the

        board of the Bavarian Medical Association, compared legal

        abortions with Nazi mass murders in Auschwitz.  Dr.  Karsten

        Vilmar, the President of the Federal Medical Association,

        even ventured to deny the necessity of any abortion caused

        by a situation of social distress in such a rich state as

        the Federal Republic of Germany.  We consider that our views

        concerning the abortion legislation in Section 218 are not

        represented by these inhuman statements of the President of

        the Federal Medical Association and we do not wish to be

        associated with this and similar attempts to put a brake on

        a necessary and reasonable development.  From our own

        professional experience we know the partly unresolvable

        difficulties of women in our country who have become pregnant

        against their will."

        On 13 February 1980 the applicant's employer gave him notice

of the termination of his employment contract as from 31 March 1980.

The only reason invoked was his having signed the above letter to the

editor.  This was seen as a violation of the duties under his

employment contract as the views expressed therein were diametrically

opposed to the opinion of the church concerning the killing of unborn

human beings and as he had deliberately published these views in a

magazine with a very wide circulation.

        On 11 March 1980 the applicant and his colleague of the same

hospital, who had also been dismissed, gave a television interview in

which they were, inter alia, asked about the consequences which

they drew from the dismissal.  The applicant replied that the first

consequence was not to depart from the views expressed earlier which

referred to the position of Section 218 and approved it.

        The applicant's colleague declared that another consequence

was to take the case to the courts as they had only expressed support

for the existing legislation.

        At this interview, the applicant and his colleague did not

repeat the contents of the above letter to the editor which was

summarised by the moderator.

        As a consequence of this interview, the applicant's employer,

on 20 March 1980, again gave notice of dismissal to the applicant with

effect from 31 March 1980 or subsidiarily 30 June 1980.  The reason

stated was that in the above television interview he had defended

views on Section 218 of the Penal Code before a wide audience which,

as he must have known, were unacceptable for his employer as a Catholic

hospital.

        The applicant challenged both dismissals before the competent

labour courts which conducted two separate proceedings.

I.      In the case concerning the dismissal of 13 February 1980,

the Labour Court (Arbeitsgericht) of Essen allowed the applicant's

action on 15 April 1980, holding that his dismissal was "manifestly

invalid".  The applicant had acted outside his professional functions

when he signed the letter to the editor.

        The employer's appeal (Berufung) was rejected by the Regional

Labour Court (Landesarbeitsgericht) of Düsseldorf on 8 September 1980.

It considered that the principle of church autonomy, as guaranteed by

Article 140 of Basic Law read in conjunction with Article 137 para. 3

of the Weimar Constitution, required that the rules enunciated by the

church should also be taken into account as regards employment

relationships.   The applicant was not allowed to speak in public

against the views of the Catholic church concerning the inviolability

of unborn human life, and his freedom of expression was restricted in

this respect.  However, the termination of the contract was

disproportionate.  The applicant's interest to keep his job as a

trainee specialist had priority: his error concerning the lawfulness

of his statement was excusable, his statement was not directed

against the employer but against representatives of the medical

profession; it had been formulated by other people without the

applicant having influenced the wording; finally, it contained no

reference to the applicant's employment and therefore only very few

readers knew that he was employed by a Catholic hospital.

        Because of the fundamental importance of the case, the

employer was granted leave to appeal on a point of law (Revision) to

the Federal Labour Court (Bundesarbeitsgericht).  However, the

employer's appeal was rejected by that Court on 21 October 1982.

        Generally, the Federal Labour Court followed the reasoning

of the Regional Labour Court.  All church-employed physicians were

required not to speak out publicly against the views of the Catholic

church concerning the inviolability of unborn human life.  This duty

did not violate the freedom of expression which had to be weighed

against the church autonomy which was also protected by the

constitution.  In view of the importance which the church attributed

to the protection of unborn life it was not inappropriate to require a

physician to refrain from any public statement contradicting the basic

attitude of the church in this area.

        Nevertheless, the applicant's dismissal was socially

unjustified because the church autonomy did not require sanctioning

each and every breach of loyalty of some weight by a dismissal without

taking into account the circumstances of the particular case.

II.     The proceedings concerning the second dismissal generally

followed those concerning the first dismissal.  By judgment of

21 May 1980 the Labour Court of Essen held that also the second

dismissal was socially unjustified.  It was wrong to see a new

violation of the applicant's duties in the fact that he had merely

confirmed the views previously expressed.  On 3 October 1980 the

Regional Labour Court confirmed this decision.  It considered that the

television interview involved a new breach of loyalty, but that it was

justified by important interests which the applicant pursued.  This

latter decision was confirmed by the Federal Labour Court on

21 October 1982.

III.    The employer lodged constitutional complaints (Verfassungs-

beschwerden) in both cases, invoking the fundamental right of freedom

of religion under Article 4 para. 2 of the Basic Law and the right of

church autonomy under Article 140 of the Basic Law read in conjunction

with Article 137 para. 3 of the Weimar Constitution.  The employer

challenged, in particular, the Federal Labour Court's view that the

degree of loyalty of church employees differs according to the measure

in which they participate in the specific religious functions of the

church.

        The Federal Constitutional Court (Bundesverfassungsgericht)

dealt with the complaints in joint proceedings and allowed them by a

decision of 4 June 1985.  It confirmed the view of the Federal Labour

Court that the constitutional guarantee of church autonomy was

applicable not only to the recognised churches as such but also to

institutions affiliated to them which in the understanding of the

church fulfilled religious functions.  In the view of the Catholic

church religious practice was not limited to the area of faith and

worship but also comprised charitable activities.  Accordingly, it was

an internal matter of the church to lay down the organisation and

administration of its charitable institutions.

        The constitutional right of church autonomy included all

measures required for performing the charitable functions in

compliance with the views of the church.  The churches were free

to decide which services they wished to provide by institutions of

their own and which legal form these activities should take.  They

could create employment relationships in the exercise of their private

autonomy.  If they chose the form of normal employment contracts they

were subjected to the labour law of the State.  However, the

applicability of labour law did not remove these employment

relationships from the sphere of internal matters of the church.

Therefore it was possible to impose contractual obligations on a

person working for the church, requiring him to lead his life in

conformity with the doctrines of the church.   By imposing such duties

of loyalty, the ecclesiastical employer exercised his freedom of

contract, and at the same time his constitutional right of church

autonomy.  Only in this way was it possible for the churches to

organise their activities within the limits of the laws of general

application and yet according to their own views.

        The churches were entitled to organise their activities on the

basis of the particular idea that all of their employees constituted a

christian community even if their activities were carried out on the

basis of employment contracts.  Furthermore, the church was entitled

to impose on its employees the observance of at least the main

principles of the dogmatic and moral teachings of the church in the

interest of the credibility of a church.

        The Federal Constitutional Court recognised that church

autonomy was limited.  The right of the churches to administer their

own internal affairs was guaranteed only within the limits of the

generally applicable laws.  As the churches were, however, free by

virtue of their autonomy to organise their activities on the basis of

the idea of a christian community and corresponding duties, it was a

constitutional requirement to take this idea into account also when

applying the law on protection against dismissals.

        Therefore, it was, in principle, left to the church to lay

down with binding effect what was necessary for the credibility of the

church and of its doctrine, what were the specific tasks of the

church, what was closely related to these tasks, what were the

essential principles of faith and morals and what was to be regarded

as a breach or a serious breach of these principles.

        The views of the church were binding unless they were in

conflict with fundamental principles of the legal system, such as the

prohibition of arbitrariness (Article 3 para. 1 of the Basic Law) or

the requirement of compliance with moral principles (gute Sitten,

Section 138 para. 1 of the Civil Code) or with the ordre public

(Article 30 of the Introductory Act to the Civil Code).

        The Federal Constitutional Court then examined whether in the

labour court proceedings the above constitutional principles had been

complied with.  It found that in the weighing of interests the Federal

Labour Court had not sufficiently taken into account the principle of

church autonomy.  According to ecclesiastical law, the killing of an

unborn human being was a serious crime which attracted the sanction of

automatic excommunication according to the Codex Juris Canonici

Canones 2257 para. 1 and 2350 para. 1.  This doctrine had existed in

the church since the first centuries and had been confirmed by the

second Vatican Council.  Under constitutional law it was these views

of the church which must constitute the basis for judging the

applicant's breach of loyalty.

        On 15 January 1986 the Federal Labour Court thereupon rejected

the applicant's actions against his first and second dismissal,

following the reasoning of the Federal Constitutional Court in

conformity with Section 31 of the Federal Constitutional Court Act.

        The applicant's dismissal with effect from 31 March 1980 thus

became finally valid.  In the meanwhile he had been offered a post in a

Catholic hospital in Duisburg as from 1 September 1985.  The offer was

withdrawn following the judgment of 15 January 1986.  As a consequence

the applicant remained unemployed for a month.  He is now working in a

non-Catholic hospital.

COMPLAINT

        The applicant alleges a violation of his right to freedom

of expression as guaranteed by Article 10 of the Convention.

PROCEEDINGS

        The application was introduced on 20 June and registered on

26 June 1986.

        On 2 May 1988 the Commission decided that, in accordance with

Rule 42 para. 2 (b) of the Commission's Rules of Procedure, notice

should be given to the respondent Government of the application and

that they should be invited to submit written observations on the

admissibility and merits before 15 July 1988.

        On 6 July 1988 the President acceded to a request by the

Government to extend this time-limit until 18 August 1988.

        The Government submitted their observations on 15 August 1988

and the applicant submitted observations in reply on 17 October 1988.

        On 10 March 1989 the Commission decided to invite the parties,

in accordance with Rule 42 para. 3 (b) of the Rules of Procedure, to

submit further observations orally at a hearing.

        The hearing took place on 6 September 1989.  The parties were

represented as follows:

        The Government by their Agent, Ministerialdirigent

Dr.  Jens Meyer-Ladewig from the Federal Ministry of Justice, who was

assisted by Professor Dr.  Wolfgang Rüfner from the University of

Cologne, Adviser;

        The applicant by his counsel, Professor Dr.  Wolfgang Däubler

of the University of Bremen, who was assisted by Mr.  Hubert Schmalz

from the Union of Public Services, Transport and Communication Workers,

Adviser.

THE LAW

        The applicant alleges a violation of his right to freedom of

expression as guaranteed by Article 10 (Art. 10) of the Convention

which reads as follows:

"1.   Everyone has the right to freedom of expression.  This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers. ...

2.  The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary."

        The applicant claims that the State is responsible for an

interference with his right to freedom of expression as, following his

dismissal by a Catholic foundation because he had expressed a particular

opinion, the Federal Constitutional Court, adopting an unreasonably

wide interpretation of church autonomy, failed to protect him.  The

constitutional norms applied did not provide a sufficiently precise,

and foreseeable, legal basis for the restriction of his freedom of

expression which, moreover, was disproportionate and not necessary in

a democratic society for any of the purposes recognised in Article 10

para. 2 (Art. 10-2).

        The Government deny that there has been any direct

interference by the State with the applicant's freedom of expression.

The limitation of this freedom resulted from the applicant's

employment contract with a church institution in which he waived

this freedom as regards statements contrary to his duty of loyalty.

The applicant could freely express his views concerning abortion, but

he had no right to do so while being employed in a Catholic hospital

where he had assumed special duties and responsibilities.  According

to the Government the State was not required to protect him vis-à-vis

the employer beyond ensuring that the latter did not make unreasonable

demands on him.  In this respect it was appropriate for the State to

adopt a restrictive approach having regard to the church's right to

regulate its internal affairs which is recognised not only in German

constitutional law, but also in Article 9 (Art. 9) of the Convention.  The

legal basis for the restriction of the applicant's freedom of

expression was sufficiently concrete and foreseeable.  The restriction

was also proportionate, having regard in particular to the applicant's

special duties as a physician employed in a Catholic hospital and the

State's wide margin of appreciation.

        The Commission must first determine whether in the

circumstances of the case the applicant is entitled to invoke his

freedom of expression under Article 10 (Art. 10).  The Government

claim that he is debarred from doing so because he waived this

freedom by assuming certain duties of loyalty towards the Catholic

church in his employment contract.

        The Commission finds no basis for the assumption that the

applicant waived his freedom of expression as such.  That he accepted

the status of a doctor employed by a Catholic hospital could not

deprive him of the protection afforded by Article 10 (Art. 10).

        However, Article 10 (Art. 10) can only be violated if there

has been a State interference with the applicant's rights under this

provision. Unlike the situation in the Kosiek and Glasenapp cases (cf.

Eur. Court H.R. judgments of 28 August 1986, Series A nos. 104 and

105) the dismissal on the ground of the expression of certain opinions

was not pronounced by a State authority.  The applicant was

dismissed by a private employer.  The fact that this was a Catholic

foundation and  that in German law the Catholic church is regarded as

a corporation of public law does not make the dismissal an act of

the State.  Under the Convention the State cannot be held

responsible for acts of the  Catholic church or its institutions which

must be regarded as non-governmental organisations within the

meaning of Article 25 (Art. 25) of the Convention.  There is thus no

question of a direct State interference  with the applicant's

freedom of expression by his dismissal.

    The applicant claims that there has been an indirect State

interference in that the German courts failed to protect his freedom

of  expression against the sanction of dismissal.  The Government

submit that the courts were not required to protect the applicant as

he had accepted limitations of his freedom of expression in his

employment  contract.

    The Commission notes that by entering into contractual

obligations vis-à-vis his employer the applicant accepted a duty of

loyalty towards the Catholic church which limited his freedom of

expression to a certain extent.  Similar obligations may also be

agreed with other employers than the Catholic church or its

institutions.  In principle, the Convention permits contractual

obligations of this kind if they are freely entered into by the person

concerned.  A violation of such obligations normally entails the legal

consequences stipulated in the contract, including dismissal.  Their

enforcement with the assistance of the competent State authorities

does not as such constitute an "interference by public authority" with

the rights guaranteed by Article 10 para. 1 (Art. 10-1) of the

Convention (cf. Application No. 11142/84, Carrillo and Burgoa v.

Spain, Dec. 3.12.86, to be published in D.R.).

        It is true that under Article 1 (Art. 1) of the Convention the

State  is required to "secure" the Convention rights to everyone

within its jurisdiction.  In certain cases it may therefore be

necessary for the State to take positive action with a view to

effectively securing these rights (cf. Eur. Court H.R., Marckx

judgment of 13 June 1979, Series A no. 31, p. 15 para. 31; judgment

of X and Y v. the  Netherlands of 26 March 1985, Series A no. 91, p.

11 para. 23; Abdulaziz, Cabales and Balkandali judgment of 28 May

1985, Series A  no. 94, p. 33 para. 67; Plattform "Ärzte für das

Leben" judgment of  21 June 1988, Series A no. 139, p. 12 para. 32).

In the case of Young, James and Webster it was held that a positive

obligation could arise for the State to provide protection against

dismissals pronounced because the applicants had refused to join

particular trade unions.  The compulsion to do so, under sanction of

dismissal, was seen as an interference with their right to freedom of

association under Article 11 (Art. 11) of the Convention (Eur. Court

H.R., judgment of 13 August 1981, Series A no. 44, p. 23 para. 55),

and the State's responsibility was seen as  being engaged by the

enactment of legislation which made this treatment of the

applicants lawful and thus failed to secure them their rights under

Article 11 (Art. 11) (ibid. p. 20 para. 49).

    The Commission has examined whether in the present case a

similar obligation existed for the State to secure the applicant's

right to freedom of expression against the measure of dismissal taken

by his employer.  The normal Labour Court procedure was available to

the applicant and the competent courts were required to weigh the

applicant's interests, including his interest in freedom of

expression, against those of his employer.  It is true that particular

weight was finally given to the views of the church concerning the

duties of loyalty of church employees.  According to the Federal

Constitutional Court this was necessary in order to safeguard the

constitutional right of the church to regulate its internal affairs.

Nevertheless the Federal Constitutional Court held that there were

limits to the right of the church to impose its views on its

employees.  In particular the State courts were competent to ensure

that no unreasonable demands of loyalty were made.  The requirement to

refrain from making statements on abortion in conflict with the

church's views was not seen as an unreasonable demand because of the

crucial importance of this issue for the church.  In the case of a

doctor employed in a Catholic hospital it was also relevant that the

church regards the exercise of charitable functions as one of its

essential tasks.

    The Commission is satisfied that German law, as interpreted by

the Federal Constitutional Court, takes account of the necessity to

secure an employee's freedom of expression against unreasonable

demands of his employer, even if they should result from a valid

employment contract.  If, as in the present case, the employer is an

organisation based on certain convictions and value judgments which it

considers as essential for the performance of its functions in

society, it is in fact in line with the requirements of the Convention

to give appropriate scope also to the freedom of expression of the

employer.  An employer of this kind would not be able to effectively

exercise this freedom without imposing certain duties of loyalty on

its employees.  As regards employers such as the Catholic foundation

which employed the applicant in its hospital, the law in any event

ensures that there is a reasonable relationship between the measures

affecting freedom of expression and the nature of the employment as

well as the importance of the issue for the employer.  In this way it

protects an employee against compulsion in matters of freedom of

expression which would strike at the very substance of this freedom

(cf. a contrario Young, James and Webster judgment, loc. cit., p. 23

para. 55).  The Commission considers that Article 10 (Art. 10) of the

Convention   does not, in cases like the present one, impose a

positive obligation on the State to provide protection beyond this

standard.

    It follows that there has been no State interference with the

applicant's right to freedom of expression as guaranteed in Article 10

para. 1 (Art. 10-1) of the Convention, nor a failure to comply with

positive obligations resulting from this provision.  The applicant's

complaint must therefore be rejected as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)