JOINT DISSENTING OPINION OF JUDGES SPIELMANN AND GOTCHEV

(Translation)

We voted with the minority, finding that there was no violation in this case, for the following reasons.

The question whether there was discrimination arose essentially in relation to the obligation to effect fire brigade duty. The obligation to pay the financial contribution derives directly from the fact of being passed fit for such duty, even though in practice, as there are sufficient numbers of volunteer firemen, the obligation to serve is converted into an obligation to pay.

We note that in this instance the obligation to perform fire brigade duty applies only to able-bodied men aged between eighteen and fifty inclusive.

In our view this is not a difference of treatment founded exclusively on sex, but a difference based on fitness to carry out the difficult and dangerous tasks inherent in fire brigade duty. The legislature could legitimately consider that men are ordinarily better suited to such tasks than women, just as men aged from eighteen to fifty are normally better suited than those younger or older.

We believe that such a difference of treatment has an objective and reasonable justification. It follows that there was no discrimination on this point.

We consider that the same conclusion applies in respect of the compensatory charge, as the obligation to pay it derives directly from the obligation to perform the duty in question.

It is therefore our opinion that there was no violation in the present case.

CONCURRING OPINION OF JUDGE MORENILLA

(Translation)

Although I agree with the reasoning of the majority and its conclusion that there has been a violation of Article 14 taken in conjunction with Article 4 para . 3 (art. 14+4-3) of the Convention, I should like to add a few remarks to clarify my position in this case. In examining the alleged discrimination, the Court referred to the principle of the equality of rights between men and women, "a fundamental principle of democracy, being a factor in the recognition of the legitimacy of women ’ s status in public life" (Recommendation 1229 (1994) of the Parliamentary Assembly of the Council of Europe), and to that of the progress towards equality between the sexes, "a sine qua non of democracy and an imperative of social justice" (Declaration of the Committee of Ministers of the Council of Europe 1988).

My first observation concerns the applicant ’ s complaint. He claimed to have been the victim of discrimination on the basis of his sex inasmuch as only the male residents of his municipality were required to pay the fire service levy in lieu of actual performance of the service in question. He maintained that the obligation to serve in the fire brigade was a normal civil obligation within the meaning of Article 4 para . 3 (d) (art. 4-3-d) of the Convention, that it was not based on abilities specific to the male sex and that, consequently, the "compensatory" financial contribution infringed Article 14 taken in conjunction with Article 4 paras . 2 and 3 (d) (art. 14+4-2, art. 14+4-3-d) and with Article 1 of Protocol No. 1 (art. 14+P1-1) (applicant ’ s memorial, para . 9).

Looking at this argument I had some doubts at the outset concerning the applicant ’ s status as a victim in so far as he alleges discriminatory treatment prohibited by Article 14 (art. 14) of the Convention - which, as may be seen from its wording, is "accessory" to a recognised right - in conjunction with Article 4 (art. 4) of the Convention, when what is really in issue is a derogation from the principle of the prohibition of forced labour provided for in that Article. The true object of the applicant ’ s complaint is therefore a general right to equality between the sexes, as groups which should receive equal treatment, rather than the enjoyment of the specific freedom guaranteed under Article 4 (art. 4) of the Convention since the service in question is not regarded as "forced or compulsory labour". Mr Karlheinz Schmidt does not attack the payment of a contribution which has become anachronistic and which has lost its compensatory character; what he is really complaining about is that women as a social group receive more favourable, indeed privileged, treatment because they are exempted from performing the service in question, without there being an objective reason for this, and therefore from paying, like the male residents, the financial contribution.

In my opinion this recourse by the applicant to Article 14 (art. 14) of the Convention in order to invoke the principle of equality of rights between men and women calls for close scrutiny. The Convention and the other international instruments concerning human rights, - and I am thinking in particular of the United Nations Convention on the Elimination of all Forms of Discrimination against Women (1979) - are principally aimed at protecting women, because of the discrimination which existed and which, unfortunately, still exists - against women in areas such as education, the family, employment or social policy or which impedes their full participation under the same conditions as men in the political, social, economic and cultural life of their country.

Secondly I consider that in this case prohibited discriminatory treatment has not been sufficiently distinguished from legitimate differences of treatment based on sex or on other personal circumstances. The contested Baden-Württemberg legislation also took account of other criteria such as age, health and residence. These cannot be regarded as discriminatory, for they make it possible to adopt an appropriate difference of treatment based on the specific physical aptitude needed to deal effectively with the emergency situations which arise in the course of fire brigade duty. This is moreover a field where States, because of their direct knowledge of their societies, enjoy a certain margin of appreciation in determining whether such differences in capacity justify a difference of treatment in law - unrelated to any notion of privilege - in order to be able to organise the service in the most effective way.

Finally, the same approach should be taken when addressing the question, raised by the Commission, concerning the significance of the opportunity accorded to women of serving in the fire brigades as volunteers from 1978 onwards, or the more general question, raised by the applicant, of a "sensible division of tasks which can undeniably take account of the weaker physical constitution of individual members of the fire brigade" (applicant ’ s memorial, para . 13) or that of the current evolution of opinion with regard to equality between the sexes (Commission ’ s report, paras . 49 and 50). I think that the physical difference between the two sexes is a "weighty" consideration justifying a difference of treatment by reason of the fact that certain tasks which require extreme physical efforts are ordinarily more easily accomplished by men than women, whilst the risk to health is greater for women.

In this area, as I have stated above, the States Parties to the Convention enjoy a margin of appreciation in assessing the social circumstances when they decide in favour of new forms of participation by women in services traditionally carried out by men or as regards the speed of progress towards the objective already mentioned of the member States of the Council of Europe.

However, in the present case, the question arises in very specific and very different terms. As the majority noted (paragraph 28 of the judgment), the obligation imposed on men to serve in the fire brigade is, in the municipality in question, exclusively one of law and theory. It follows that the contribution which the applicant was required to pay no longer has the character of a "compensatory" payment, but resembles rather a "tax" imposed on certain male residents of the locality, a practice which in the circumstances lacks any reasonable and objective justification.