CONCURRING OPINION OF JUDGE GERSING

1. To my regret, I am not able to share the reasoning of the majority concerning the applicability of Article 8 (art. 8).

The majority finds that as the determination of the applicant ' s legal relations with Pernille undoubtedly concerned his private life, the case accordingly also falls within the ambit of Article 8 (art. 8). In my view, this is far too wide an understanding of the right protected by this provision.

2. The wording of the provision obliges the Danish Government to show "respect for [Mr. Rasmussen ' s] private ... life". The ordinary meaning of this expression does not clearly cover a father ' s right to disclaim his paternity of a child. Regard must therefore be had to the origin of the provision.

3. The preparatory work on Article 8 (art. 8) indicates that the authors of the Convention had in mind to protect the individual against an "arbitrary interference with his privacy" (Collected Editions of the "Travaux Préparatoires" of the European Convention on Human Rights, The Hague, Nijhoff, 1976, Vol. III, p. 222, and Vol. IV, pp. 110, 188, 202 and 222). Although one should be careful not to attach too much importance to the intention behind a provision that is more than thirty years old if later social and cultural developments justify a broader understanding of its words within their linguistic limits, I find that the gap between the original intention and the majority ' s application of the Article is so great that it seems doubtful whether one can ignore the preparatory work completely in this case.

4. In its Marckx judgment of 13 June 1979 (Series A no. 31, p. 15, para. 31), the Court held that Article 8 (art. 8) does not merely compel the State to abstain from interference: in addition, there may be positive obligations inherent in an effective "respect" for the guaranteed rights. This meant that the State had to adapt its legal system to allow an unmarried mother to lead a normal family life with her child.

A similar consideration led the Court to the conclusion in its Airey judgment of 9 October 1979 (Series A no. 32, p. 17, para. 33) that a married woman had the right to seek recognition in law of her de facto separation from her husband.

The facts in the above cases are, however, so different from the situation now before the Court that these judgments cannot be of decisive importance for the ruling in the case.

5. The majority ' s reasoning is based on an interpretation of Article 8 (art. 8) which is broader than that previously adopted by the Court and seems to imply that any legal problem that has a bearing on a person ' s private life falls within the scope of Article 8 (art. 8).

Protocol No. 7 (P7) to the Convention, which is about to be opened for signature, contains, however, in Article 5 (art. P7-5) a provision concerning spouses ' relations with their children. I take that as a further indication that the Parties to the Convention have not found that Article 8 (art. 8) covers this aspect.

6. For the above reasons, I do not find Article 8 (art. 8) to be applicable in this case.

[*]  The case is numbered 9/1983/65/100.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases refer red in that year; the last two figures indicate, respectively, the cas e's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[*]   The revised Rules of Court , which entered into force on 1 January 1983 , are applicable to the present case.