AS TO THE ADMISSIBILITY OF
Application No. 15688/89
by Meta LIPSKI
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 3 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 31 August 1989
by Meta Lipski against the Federal Republic of Germany and registered
on 25 October 1989 under file No. 15688/89;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, living in Gelsenkirchen.
She is represented by Mr. M. Stolz, a lawyer in Gelsenkirchen.
On 26 October 1985 the applicant brought an action before the
comptent Labour Court (Arbeitsgericht) in Gelsenkirchen against her
employer, a catholic community in charge of a hospital where she is
working as an assistant nurse. Being a widow having to care for her
two children born in 1963 and 1965 she claimed a paid day off work
each month in order to work in her household.
This claim was based on Section 1 of a 1948 Act of Northrhine-
Westphalia containing holiday regulations for women with a household,
hereinafter referred to as 1948 Act (Gesetz über Freizeitgewährung
für Frauen mit eigenem Hausstand). It appears that the Federal Labour
Court (Bundesarbeitsgericht) decided in 1962 that Section 1 of this
Act applied not only to married women but also to women who no longer
lived with the partner but had their own household. However, the
Federal Constitutional Court (Bundesverfassungsgericht) decided on
13 November 1979 that the Section was incompatible with the principle
of equality before the law as guaranteed by Article 3 (2) of the Basic
Law (Grundgesetz) insofar as it guaranteed a free household-day to
female but not to male singles.
As a consequence of the Federal Constitutional Court's
decision of 13 November 1979 the Federal Labour Court held on
26 January 1982 that neither single men nor single women could derive
any rights from Section 1 of the 1948 Act as the Section was
unconstitutional. According to the Federal Labour Court proceedings
relating to claims raised under this provision therefore had to be
adjourned pending a legislative amendment to the 1948 Act.
Following this jurisprudence the Gelsenkirchen Labour Court
decided on 4 March 1986 to adjourn the examination of the applicant's
case. The applicant's appeal (Beschwerde) against this decision was
rejected by the Regional Labour Court (Landesarbeitsgericht) in Hamm
on 19 June 1986. The Regional Court stated in agreement with the
Federal Labour Court that no ordinary court could apply a statutory
provision that had been declared unconstitutional. It was exclusively
for the legislator to draw the consequences of this unconstitutionality.
Different solutions were available to the legislator, inter
alia, it could be decided to abolish the regulation in question
altogether. The ordinary courts therefore had to wait for a solution
which would eventually be adopted by the legislator.
The applicant then lodged a constitutional complaint
(Verfassungsbeschwerde) which is still pending before the Federal
Constitutional Court. The Court informed her by letter of 31 March 1989
that, for the time being, no indication could be made as to when a
decision would be taken in her case.
COMPLAINTS
The applicant submits that Section 1 of the 1948 Act is still
in force and applicable to married women. She therefore considers
that as a single she has a right to be treated equally and to claim a
paid household day. Consequently, she considers that her labour court
action related to a civil right. She complains under Article 6 para. 1
of the Convention of the length of proceedings.
THE LAW
The applicant invokes the right to obtain a final decision
within a reasonable time as guaranteed by Article 6 para. 1 (Art. 6-1)
of the Convention.
However, this provision extends only to disputes over civil
rights and obligations which can be said, at least on arguable
grounds, to be recognised under domestic law (Eur. Court H.R., Lithgow
and others judgment of 8 July 1986, Series A, p. 70 para. 192).
The labour court proceedings complained of relate to a claim
based on Section 1 of an Act of 1948 which has been declared
unconstitutional by the Federal Constitutional Court insofar as this
provision had been interpreted by the labour courts as granting a free
household-day not only to married women but also to female singles
with a household. According to the German courts this provision is
therefore inapplicable to female singles and it is considered
the task of the German legislator to draw the consequences of the said
Constitutional Court's decision.
In these circumstances the applicant does not, for the time
being, have an arguable claim to a free household-day and Article 6
para. 1 (Art. 6-1) is therefore not applicable to the proceedings
in question.
It follows that the application is incompatible ratione
materiae with the provisions of the Convention and has to be rejected
in accordance with Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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