AS TO THE ADMISSIBILITY OF
Application No. 20458/92
by A.P.
against Austria
The European Commission of Human Rights sitting in private on
5 July 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. 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
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 August 1992 by
A.P. against Austria and registered on 10 August 1992 under file No.
20458/92;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 11 January 1994 to communicate the
application;
- the observations submitted by the respondent Government on
6 April 1994 and the observations in reply submitted by the
applicant on 29 June 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1950 and living in
Vienna. He is represented by Mr. A. Laimer, a lawyer practising in
Vienna.
The facts as undisputed between the parties may be summarised as
follows. 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.
On 25 April 1989 the applicant made a request for long term
parental leave payments (Karenzurlaubsgeld).
This request was rejected by the competent labour office
(Arbeitsamt) on 26 May 1989 on the ground that parental leave payments
could only be claimed by mothers on the occasion of maternity.
According to Section 26, para. 1, lit. b of the Austrian Unemployment
Insurance Act (Arbeitslosenversicherungsgesetz) of 1977, mothers had,
at the relevant time, a claim to long term parental leave payments if,
inter alia, they took leave on account of maternity for up to one year.
The applicant's appeal was rejected by the Regional Vienna Labour
Office (Landesarbeitsamt) on 4 July 1989, also on the ground that only
mothers qualified for such payments.
The applicant then lodged a constitutional complaint. On
12 December 1991 the Constitutional Court (Verfassungsgerichtshof)
refused to consider the merits of the case referring to its
jurisprudence according to which the legislative provisions on which
the refusal in the applicant's case was based did not violate
constitutional rights and were compatible with Articles 8 and 12 of the
European Convention on Human Rights. 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 legislator was free to fix
a date as from which onwards the new rules were applicable.
The Constitutional Court's decision was received by the
applicant's counsel on 6 February 1992. In the meantime, an Act of
12 December 1989, which came into force on 1 January 1990, had created
a claim for a father for parental leave benefits if he is employed,
lives with the child in a common household, 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 job.
According to this Act it is, however, a legal prerequisite that
the child be born after 31 December 1989. As the applicant's child had
been born on 27 February 1989, the new regulation did not apply.
COMPLAINTS
The applicant complains that, as a father, long-term parental
leave payments were denied him.
He submits that for personal reasons he and his wife decided that
he should take care of their new-born child while his wife continued
to exercise her profession. He considers that in these circumstances
the denial of long-term parental leave payments amounts to a violation
of Article 8 para. 1 of the Convention, not being justified for any of
the reasons mentioned in para. 2 of that provision.
He also considers that the denial amounts to a violation of
Article 8 in conjunction with Article 14 of the Convention.
Finally, he invokes Article 13 of the Convention because the
Constitutional Court refused to consider the merits of his case. In
this context he points out that an appeal to the Administrative Court
would have offered no prospects of success.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 August 1992 and registered
on 10 August 1992.
On 11 January 1994 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 6 April 1994 the Government submitted their observations. The
applicant submitted observations in reply on 29 June 1994, an extension
of the time-limit having been granted before.
THE LAW
The applicant complains that the denial of long-term parental
leave payments to him as a father violates the right to respect for his
family life (Article 8) (Art. 8) and in particular amounts to
discrimination within the meaning of Article 14 (Art. 14) of the
Convention.
1. The first question which arises is whether the applicant can be
considered to have respected the six-month time-limit as set out in
Article 26 (Art. 26) of the Convention. He lodged his application on
3 August 1992 which is within six months of the date on which the
Constitutional Court's decision was served on his counsel on
6 February 1992.
However, the Constitutional Court refused to examine the
applicant's complaint on the merits stating that in view of its
constant jurisprudence it offered no prospects of success.
The Commission holds that in view of the change of the law which
was being prepared at the relevant time, the applicant did have
justified reason nevertheless to consider a constitutional complaint
to be an effective remedy in these particular circumstances. The
Constitutional Court's decision of 12 December 1991 can therefore be
taken into account as being the final domestic decision on the subject
matter raised in the present case and consequently the six months'
time-limit can be considered to have been respected.
2. Insofar as the applicant invokes the right to respect for his
family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the
Convention, the respondent Government submit that parental leave
implies a financial aid to families which is as such not required by
Article 8 (Art. 8). It is also pointed out that a right to parental
leave benefits is not common in the legal order of all Council of
Europe member States.
The Commission observes that the denial of the payments in
question does not 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).
It follows that there is no appearance of a violation of
Article 8 (Art. 8) and to this extent the application has to be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains that he was denied an "effective
remedy" within the meaning of Article 13 (Art. 13) of the Convention.
According to the established case-law of the Commission
interpreting Article 13 (Art. 13), an applicant who claims that his
rights guaranteed by the Convention have been violated, must have an
effective remedy before a national authority for that claim. The word
"remedy" in this sense does not however mean that the applicant's claim
must be vindicated and that the applicant must "win". He must have an
opportunity for his claim to be examined by a national authority in
conformity with the requirements of Article 13 (Art. 13), which is able
to examine the merits of his complaint (cf. No. 9276/81, Dec. 17.11.83,
D.R. 35 p. 13).
The Commission notes that the applicant had the possibility to
bring his case before the Constitutional Court as well as the
Administrative Court. He made use of the former remedy and could,
inter alia, invoke his alleged Convention rights. The fact that the
applicant's arguments were considered by the Constitutional Court to
be irrelevant does not imply that his arguments were not duly examined
by this court. This part of the application is therefore also
manifestly ill-founded.
4. The applicant maintains that he is the victim of discrimination
on the ground of sex in breach of Article 14 taken in conjunction with
Article 8 (Art. 14+8).
The case-law of the Convention organs shows that, although
Article 14 (Art. 14) has no independent existence, it may play an
important role by complementing the other normative provisions of the
Convention and the Protocols: Article 14 (Art. 14) safeguards
individuals, placed in similar situations, from any discrimination in
the enjoyment of the rights and freedoms set forth in those other
provisions. A measure which, although in itself in conformity with the
requirements of the Article of the Convention or the Protocols
enshrining a given right or freedom, is of a discriminatory nature
incompatible with Article 14 (Art. 14) therefore violates those two
Articles taken in conjunction. It is as though Article 14 (Art. 14)
formed an integral part of each of the provisions laying down rights
and freedoms (see, inter alia, Eur. Court H.R., Marckx judgment of 13
June 1979, Series A no. 31, pp. 15-16, para. 32). The Commission has
found that there was no appearance of a violation of the right to
respect for family life as guaranteed by Article 8 (Art. 8) because
this provision does not as such require States to provide financial
assistance for families with a newborn child. The question arises
whether the facts in issue fall completely outside the ambit of that
Article (Art. 8) and, hence, of Article 14 (Art. 14).
The aid here in question, namely parental leave payments, is
nevertheless destined to promote family life. The notion of
discrimination comprises in general cases where a person or group is
treated, without proper justification, less favourably than another,
even though the more favourable treatment is not called for by the
Convention. Therefore the facts at issue fall within the ambit of
Article 8 (Art. 8) (cf. Eur. Court H.R., Abdulaziz and others judgment
of 22 May 1984, Series A no. 94, p. 35, para. 71 and p. 39, para. 82).
The Government argue that in principle legislative amendments
have no retroactive effect, in particular when they are the response
to changed situations. Therefore it is common use that the effect of
new legislation often be delimited in that it is expressly provided
that it shall apply only from a fixed day onwards.
The applicant submits that parental leave payments are practised
in various member States. Regardless of that, he considers that within
a social system of a given State, social benefits have to be granted
without discrimination.
The Commission considers that in this respect the case raises
important issues of law and facts which require an examination on the
merits. No other grounds for declaring this part of the application
inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint concerning the denial of parental leave
payments and the alleged discriminatory nature of this decision;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy