EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20458/92
A. P.
against
Austria
REPORT OF THE COMMISSION
(adopted on 15 October 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-23) . . . . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 24-39) . . . . . . . . . . . . . . . . . . . . .4
A. Complaint declared admissible
(para. 24). . . . . . . . . . . . . . . . . . . . .4
B. Point at issue
(para. 25). . . . . . . . . . . . . . . . . . . . .4
C. Article 14 of the Convention in conjunction with
Article 8
(paras. 26-38). . . . . . . . . . . . . . . . . . .4
1. Applicability of Article 14 of the Convention
(paras. 26-32) . . . . . . . . . . . . . . . .4
2. Compliance with Article 14 of the Convention
(paras. 33-38) . . . . . . . . . . . . . . . .5
CONCLUSION
(para. 39). . . . . . . . . . . . . . . . . . . . .7
DISSENTING OPINION OF MRS. G.H. THUNE JOINED BY
MM. J.-C. GEUS AND P. LORENZEN. . . . . . . . . . . . . . . .8
DISSENTING OPINION OF MR. F. MARTINEZ . . . . . . . . . . . 10
DISSENTING OPINION OF MR. E.A. ALKEMA . . . . . . . . . . . 11
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 13
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is an Austrian citizen born in 1950 and resident
in Vienna. He was represented before the Commission by Mr. A. Laimer,
a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Ambassador F. Cede, Head
of the International Law Department at the Federal Ministry of Foreign
Affairs.
4. The case concerns the refusal of the Austrian labour authorities
to grant parental leave payments and the alleged discriminatory nature
of this refusal. The applicant invokes Article 14 of the Convention
in conjunction with Article 8 of the Convention.
B. The proceedings
5. The application was introduced on 3 August 1992 and registered
on 10 August 1992.
6. On 11 January 1994 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.
7. The Government's observations were submitted on 6 April 1994,
after an extension of the time-limit. The applicant replied on
29 June 1994 after an extension of the time-limit. On 27 June 1995 the
Commission transferred the case from the First Chamber to the Plenary.
8. On 5 July 1995 the Commission declared admissible the applicant's
complaint concerning the denial of parental leave payments and the
alleged discriminatory nature of this decision. It declared
inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 19 July 1995 and they were invited to submit such
further information or observations on the merits as they wished.
No such observations were submitted.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
12. The text of this Report was adopted on 15 October 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
16. The applicant was at the relevant time a student with part-time
employment. His wife had already finished her university education and
was a civil servant in a Federal Ministry. On 27 February 1989 his wife
gave birth to a child. She continued to exercise her profession while
the applicant took parental leave and took care of the child.
17. On 25 April 1989 the applicant made a request for parental leave
payments (Karenzurlaubsgeld).
18. On 26 May 1989 the competent labour office (Arbeitsamt) dismissed
the applicant's request on the ground that parental leave payments
could only be claimed by mothers on the occasion of maternity.
According to Section 26 para. 1 of the 1977 Unemployment Insurance Act
(Arbeitslosenversicherungsgesetz), mothers had, at the relevant time,
a claim to parental leave payments if they took leave on account of
maternity for up to one year and if they had been eligible for
maternity allowance (Wochengeld), a social benefit paid to employed
mothers during eight weeks immediately after the birth of the child.
19. On 14 June 1989 the applicant appealed. He submitted that the
provision of the Unemployment Insurance Act by which men were excluded
from parental leave payments was discriminatory and therefore
unconstitutional.
20. On 4 July 1989 the Regional Vienna Labour Office
(Landes-arbeitsamt) dismissed the applicant's appeal, on the ground
that, according to the law, only mothers qualified for such payments.
21. On 18 August 1989 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof). He submitted that
Section 26 para. 1 of the Unemployment Insurance Act, which granted
only mothers a claim to parental leave payments, was unconstitutional.
He relied on the principle of equality under the Federal Constitution
and on Article 8 of the Convention.
22. On 12 December 1991 the Constitutional Court declined to deal
with the applicant's complaint. It referred to its previous case-law,
according to which the legislative provisions applied in the
applicant's case did not violate constitutional rights and were
compatible with Articles 8 and 12 of the Convention. Even having
regard to recent legislative amendments which brought the regulation
in question in line with changing conditions (Anpassung an geänderte
Verhältnisse), the applicant's complaint was unfounded as the
legislature was free to fix the date as from which new rules should
apply.
23. In the meantime, Section 26 of the Unemployment Insurance Act had
been amended by a Federal Act of 12 December 1989 (Federal Law Gazette
651/1989), which had entered into force on 1 January 1990. The new
version provides for a claim by a father to parental leave payments if
he is employed, lives with the child in a common household, and
predominantly cares for the child himself and if either the mother is
entitled to parental leave because of her motherhood and has partly or
fully renounced her claim or the mother is not entitled to go on
parental leave but is prevented from caring for her child by her
employment. However, the new regulation only applied in respect of
children born after 31 December 1989. As the applicant's child had
been born on 27 February 1989, the new regulation did not apply to him.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
24. The Commission has declared admissible the applicant's complaint
concerning the denial of parental leave payments to the applicant as
a father and the alleged discriminatory nature of this decision.
B. Point at issue
25. Accordingly, the issue to be determined is whether there has been
a violation of Article 14 of the Convention in conjunction with
Article 8 (Art. 14+8) of the Convention.
C. Article 14 of the Convention in conjunction with Article 8
(Art. 14+8)
1. Applicability of Article 14 (Art. 14) of the Convention
26. Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
27. Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
28. In the Government's view, Article 14 (Art. 14) of the Convention
does not apply in the present case, since Article 8 (Art. 8) of the
Convention does not guarantee a right to parental leave payments.
29. The Commission recalls that Article 14 (Art. 14) of the
Convention complements the other substantive provisions of the
Convention and its Protocols. It has no independent existence since
it has effect solely in relation to "the enjoyment of the rights and
freedoms" safeguarded by those provisions. Although the application
of Article 14 (Art. 14) of the Convention does not presuppose a breach
of those provisions - and to this extent it is autonomous -, there can
be no room for its application unless the facts at issue fall within
the ambit of one or more of the latter (Eur. Court HR, Abdulaziz,
Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985,
Series A no. 94, p. 35, para. 71; Karlheinz Schmidt v. Germany judgment
of 18 July 1994, Series A no. 291-B, p. 32, para. 22, Gaygusuz
v. Austria judgment of 16 September 1996, para. 36, to be published in
Reports of Judgments and Decisions for 1996). However, "... a measure
which in itself is conformity with the requirements of the Article
ensuring the right or freedom in question may ... infringe this Article
when read in conjunction with Article 14 (Art. 14) for the reason that
it is of a discriminatory nature" (Eur. Court HR, Belgian Linguistic
judgment of 23 July 1968, Series A no. 6, p. 33).
30. The question therefore arises whether or not the facts at issue
fall within the ambit of Article 8 (Art. 8) of the Convention and,
hence, of Article 14 (Art. 14) of the Convention.
31. In this respect the Commission recalls that the denial of the
payments in question does not as such constitute an interference with
the right to respect for family life as Article 8 (Art. 8) does not
extend so far as to impose on States a general obligation to provide
for financial assistance to individuals in order to enable one of two
parents to stay at home to take care of children (cf. No. 11776/85,
Dec. 4.3.86, D.R. 46 p. 251 and the Commission's decision as to the
admissibility of the present application). The financial assistance
here in question, namely parental leave payments, is nevertheless
destined to promote family life and thus constitutes a specific
regulation by which the State, in the exercise of its margin of
appreciation, discharges its duty under Article 8 (Art. 8) of the
Convention to show respect for family life. Since the legislation in
question therefore comes within the scope of Article 8 of the
Convention, Article 14 (Art. 8+14) also applies in conjunction with
that provision.
32. The Commission therefore has to examine whether the difference
in treatment between fathers and mothers as regards the eligibility to
parental leave payments amounts to discrimination prohibited by
Article 14 (Art. 14) of the Convention.
2. Compliance with Article 14 (Art. 14) of the Convention
33. The applicant submits that social benefits, like parental leave
payments, have to be granted without discrimination. Since he was
excluded from these benefits merely because he was a man, he is the
victim of discrimination on the ground of sex in breach of Article 14
(Art. 14) taken in conjunction with Article 8 (Art. 8) of the
Convention. He also points out that parental leave and the granting
of parental leave payments can only be claimed after the expiry of the
eight week period after birth during which the mother enjoys a special
protection (Mutterschutzfrist - motherhood protection period) and is
eligible for maternity allowance. Thus, parental leave does not
specifically protect mothers but also fathers who intend to take leave
in order to care for a newborn child.
34. The Government submit that no common standard among Contracting
States exists with regard to parental leave or parental leave payments
as only a small number of Contracting States provide for these social
benefits. In view of the lack of such a common standard, the Austrian
legislature's decision not to grant fathers parental leave or parental
leave payments is covered by the margin of appreciation granted to the
Contracting States in decisions on social policy. Therefore the
situation under Austrian law about which the applicant complains must
be considered to be in conformity with the provisions of the
Convention. The fact that the legislature subsequently reacted to
changes in social behaviour by amending the Unemployment Insurance Act
in 1989 cannot lead to the conclusion that the situation under the law
prior to the amendment was in violation of the Convention.
35. The Commission recalls that for the purpose of Article 14
(Art. 14) a difference in treatment is discriminatory if it "has no
objective and reasonable justification", that is if it does not pursue
a "legitimate aim" or if there is not a "reasonable relationship of
proportionality between the means employed and the aim sought to be
realised". Moreover the Contracting States enjoy a certain margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment. The
advancement of the equality of the sexes is today a major goal in the
member States of the Council of Europe; this means that very weighty
reasons have to be put forward before the Convention organs could
regard a difference in treatment based exclusively on the ground of sex
as 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; Burghartz v. Switzerland judgment of 22 February 1994,
Series A no. 280-B, p. 29, para. 27; Karlheinz Schmidt v. Germany
judgment, loc. cit. pp. 32-33, para. 24).
36. The Commission observes that a claim to the parental leave
payments in question only exists after the mother's claim for maternity
allowance has expired. The purpose of maternity allowances and the
motherhood protection period relating thereto, which cover a period of
eight weeks immediately after the birth of the child, is clearly to
give the mother time to recover from the period of pregnancy and the
strain of giving birth. Parental leave and parental leave payments,
however, relate to subsequent periods and it appears that their purpose
is to enable the beneficiary to personally take care of the newborn
child. The Commission cannot see why fathers, who are willing to do
so, could not take over this task. This was also the opinion of the
Austrian legislature which in 1989 by an amendment to the Unemployment
Insurance Act extended the possibility of parental leave and parental
leave payments to the father of a child.
37. The Government argue that with regard to parental leave and
parental leave payments no common standard exists among Contracting
States so that a difference in treatment between the sexes in respect
of these benefits is in compliance with the Convention. The Commission
finds that the lack of a common standard with regard to specific social
benefits reflects the great variety of existing social security schemes
in the member States which, moreover, must be seen in the context of
the diverging legal frameworks in the field of labour, civil service
and industrial law. However, the lack of a common standard cannot
absolve Contracting States which have opted for a specific scheme of
parental leave payments from granting these benefits in a non-
discriminatory manner.
38. The Commission therefore finds that no objective and reasonable
grounds have been shown, which could justify the difference in
treatment complained of. Accordingly, the applicant has been
discriminated against in his right to respect for his family life as
guaranteed by Article 8 (Art. 8) of the Convention.
CONCLUSION
39. The Commission concludes, by 25 votes to 5, that in the present
case there has been a violation of Article 14 of the Convention in
conjunction with Article 8 (Art. 14+8) of the Convention.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
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)
OPINION DISSIDENTE DE M. F. MARTINEZ
Je ne vois pas de violation dans les circonstances de l'espèce.
L'article 8 de la Convention oblige les Etats membres au respect
de la vie privée de toute personne et il interdit toute ingérence d'une
autorité publique qui ne serait pas admise par le paragraph 2.
Il est vrai que l'article 14 exige que la jouissance des droits
et libertés reconnus dans la Convention soit assurée sans distinction
aucune fondée sur le sexe; mais cela est limité à la jouissance des
droits contenus dans la Convention.
Si un Etat veut bien donner aux hommes ce qu'il ne donne pas aux
femmes ou vice-versa, cette distinction, même si elle suppose une
discrimination, ne tombe pas sous le contrôle des organes de la
Convention, à moins que cette discrimination ne porte pas sur un droit
reconnu par celle-ci.
Il s'ensuit que si l'article 8 de la Convention n'impose pas aux
Etats l'obligation d'octroyer une prime aux mères, ils sont libres de
le faire sans pour autant être obligés d'accorder la prime aux pères.
Si nous pensons que tout avantage alloué à titre gracieux aux
mères doit obligatoirement l'être à l'égard des pères, nous tombons
dans la conception de l'égalité des sexes comme un droit absolu ou
autonome. Mais telle n'est pas la portée de l'article 14 de la
Convention.
Par ces motifs je considère la présente requête comme
incompatible avec les dispositions de la Convention.
(Or. English)
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).
Full & Egal Universal Law Academy