concurring OPINION OF JUDGE pettiti

( Translation )

I voted in favour of finding that there has been no violation. However, my reasons for so doing differ from those set out in paragraphs 37 and 41.

It appears to me to be difficult to look at equality between men and women where parental leave is concerned in the same way as where work, family reunion or elections are concerned.

Both in Community law and European human-rights law, it is necessary when considering the issue of equality to differentiate substantially according to the type of case, whether before the Court of Justice of the European Communities or the European Court of Human Rights.

Even had there been no Austrian decision in 1990 to extend the allowance to fathers, the Court would have had to find that there had been no violation.

In paragraph 37 the Court said that very weighty reasons would be needed for such a difference in treatment to be regarded as compatible with the Convention. That requirement was true of the Schuler-Zgraggen and Van Raalte cases, but not necessarily of the Petrovic case, in which a more equal sharing of tasks between men and women was not expressly in issue.

In a different context (fares on public transport and sexual orientations and preferences) the Court of Justice of the European Communities has recently delivered an interesting judgment (17 February 1998, Grant), from which it is worthwhile quoting here as it is relevant in the analysis of the scope of the principles governing discrimination on grounds of sex.

Those principles do not require total assimilation of the sexes in provisions on economic and welfare protection – see the United Nations International Covenant on Economic, Social and Cultural Rights of 16 December 1966.

The Court of Justice of the European Communities reiterated that:

“The Covenant is one of the international instruments relating to the protection of human rights of which the Court takes account in applying the fundamental principles of Community law (see, for example, Case 374/87, Orkem v. Commission [1989] ECR 3283, paragraph 31, and Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 68).

However, although respect for the fundamental rights which form an integral part of those general principles of law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community (see, inter alia , on the scope of Article 235 of the EC Treaty as regards respect for human rights, Opinion 2/94 [28 March 1996] ECR I-1759, paragraphs 34 and 35).”

As regards Article 14 of the European Convention on Human Rights (discrimination on grounds of sex), it cannot be construed as being unrestricted.

It should also be noted that when Directive no. 96/34/EC of the Council of the European Communities of 3 June 1996 was issued it was considered that the Council of the European Union, in spite of a large consensus, was not ready to decide on a draft directive on parental leave and time off for family reasons (as amended on 15 November 1984). The directive is limited to a framework agreement between the UNICE (Union of Industrial and Employers’ Confederation of Europe), the CEEP (European Centre of Enterprises with Public Participation) and the ETUC (European Trade Union Confederation).

For there to be equality of treatment of men and women under the European Convention on Human Rights does not require that they be treated absolutely alike under tax and economic provisions. In particular, the fact that States give mothers the right to parental leave while they are looking after their infant children , does not mean that they automatically have to give such leave to husbands or partners, though that would be desirable for the future. Such rights are indisputably inspired by the biological and psychological bond between mother and child, especially in the period following birth. Certain claims in this sphere sometimes result more from personal convenience than any overriding need.

In this area, it is necessary to classify the problems in order of importance so that greater protection can be given to the major interests.

JOINT dissenting opinion of Judges Bernhardt and Spielmann

We are unable to share the opinion of the majority that there has been no violation of Article 14 of the Convention taken together with Article 8 in the present case. The different treatment of fathers and mothers as regards parental leave allowances in 1989 was in our view not compatible with the basic principle that both sexes must be treated equally by the State.

In paragraph 37 the judgment correctly states, following previous decisions of the Court:

“… the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe and very weighty reasons would be needed for such a difference in treatment to be regarded as compatible with the Convention…”

We do not see any such weighty reasons here. It is in reality the traditional distribution of family responsibilities between mothers and fathers that gave rise to the Austrian legislation under which only mothers were entitled to parental leave allowance. The discrimination against fathers perpetuates this traditional distribution of roles and can also have negative consequences for the mother; if she continues her professional activity and agrees that the father stay at home, the family loses the parental leave allowance to which it would be entitled if she stayed at home.

It is correct that States are under no obligation to pay any parental leave allowance, but if they do so, traditional practices and roles in family life alone do not justify a difference in treatment of men and women. The reference to the situation in other European States and to the lack of uniform practice is not conclusive. The Commission correctly stated in its report that there are different social-security systems in the European States, and a State, when opting for one system, is not permitted to grant benefits in a discriminatory manner.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 156/1996/775/976. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] 1. Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.