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).