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)