AS TO THE ADMISSIBILITY OF
Applciation No. 12242/86
by Maximilian ROMMELFANGER
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 6 September 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 20 June 1986
by Maximilian Rommelfanger against the Federal Republic of Germany
and registered on 26 June 1986 under file No. 12242/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- the Commission's decision of 2 May 1988 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
15 August 1988 and the observations in reply submitted by the
applicant on 17 October 1988;
- the parties' submissions at the oral hearing on
6 September 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts as agreed by the parties may be summarised as follows.
The applicant, a German citizen born in 1950, is a physician.
He is represented by Professor Wolfgang Däubler of the University of
Bremen.
As from 1 February 1979 the applicant was employed as an
assistant physician in the hospital of a Roman Catholic foundation
(kirchliche Stiftung) in Essen. The hospital provides medical
care for the public in general without distinction of faith.
About 80% of its staff of 630 employees, including 60 physicians,
are Roman Catholics. Most of the remaining employees belong to
other churches.
The position of the Roman Catholic church under constitutional
law in the Federal Republic of Germany is governed by Article 140 of
the Basic Law (Grundgesetz) read in conjunction with the Weimar
Constitution of 11 August 1919.
Article 140 of the Basic Law provides:
"The provisions of Articles 136, 137, 138, 139 and 141
of the German Constitution of 11 August 1919 shall be
an integral part of this Basic Law."
Article 137 of the Weimar Constitution provides:
"(1) There shall be no state church.
(2) Freedom of association to form religious bodies
is guaranteed. The union of religious bodies
within the territory of the Reich shall not be
subject to any restrictions.
(3) Every religious body shall regulate and administer
its affairs independently within the limits of the
law valid for all. It shall confer its offices
without the participation of the state or the
civil community.
(4) Religious bodies shall acquire legal capacity
according to the general provisions of civil law.
(5) Religious bodies shall remain corporate bodies under
public law in so far as they have been such heretofore.
..."
The applicant's contract contained a clause according to
which the employment relationship was to be governed by the guidelines
issued by the umbrella organisation of Catholic charities in Germany
(Richtlinien für Arbeitsverträge in den Einrichtungen des Deutschen
Caritas-Verbandes). Rule 1 of these guidelines refers to the duties
which flow from charity (Caritas) as an essential expression of
christian life. The employees are required to perform their services
in loyalty and to show a behaviour inside and outside their professional
functions which, as a whole, corresponds to the responsibility which
they have accepted. It is presupposed that in performing their
professional duties they will be guided by christian principles.
Rule 16 further stipulates that both parties may terminate the
contract for important reasons without complying with the period of
notice. Important reasons are, in particular, "breaches of loyalty or
gross violations of due respect towards members of the Caritas
organisation, leading persons or essential institutions of the
Catholic church, serious offences against moral principles of the
church or against State law, or other gross violations of professional
duties under these guidelines". The guidelines are generally used in
employment contracts of Catholic institutions.
In September 1979 the applicant, together with some fifty
persons including another physician of the same hospital, signed a
letter to the editor of the weekly magazine "Stern" which was
published in October under the headline "Physicians versus physicians'
representatives" ("Ärzte gegen Ärztefunktionäre"). It contained
criticism of the attitude of leading personalities in the medical
professional organisations concerning the abortion legislation
introduced in 1976. In its current version Section 218a of the
Criminal Code (Strafgesetzbuch) provides that an abortion performed
by a doctor shall not be punishable if it is carried out with the
consent of the pregnant woman not later than twelve weeks after
conception and if it is indicated according to medical opinion "in
order to avert the danger of a distress which
a) is so serious that the pregnant woman cannot
be required to continue the pregnancy, and
b) cannot be averted in any other way she can
reasonably be expected to bear".
The letter to the editor was couched in the following words:
(German)
"Wir wehren uns mit diesem Aufruf besonders gegen
die Angriffe, die von klerikal-konservativer und
standesärztlicher Seite gegen die Praxis des der-
zeitigen Paragraphen 218 geführt werden. So ver-
glich Dr. Holzgartner, CSU-Funktionär und Vorstands-
mitglied der Bayrischen Ärztekammer, den legalen
Schwangerschaftsabbruch mit den Massenmorden der
Nazis in Auschwitz. Dr. Karsten Vilmar, Präsident
der Bundesärztekammer, wollte sogar bestreiten, dass
es in einem so reichen Staat wie der BRD eine Not-
wendigkeit zum Schwangerschaftsabbruch aus sozialer
Notlage geben könne. Wir sehen unsere Position zum
Abtreibungsparagraphen 218 nicht durch die inhumanen
Äusserungen des Präsidenten der Bundesärztekammer
vertreten und distanzieren uns von diesen und ähnlichen
Versuchen, eine notwendige und sinnvolle Entwicklung
zu hemmen. Wir kennen aus eigener beruflicher Praxis
die z.T. unlösbaren Schwierigkeiten von Frauen in
unserem Land, die ungewollt schwanger geworden sind."
(English translation)
"By this proclamation we wish to express disapproval,
in particular, of the attacks made by clerical conserva-
tive circles and representatives of the medical profession
against the practice under the current Section 218. Thus
Dr. Holzgartner, a functionary of the CSU and member of the
board of the Bavarian Medical Association, compared legal
abortions with Nazi mass murders in Auschwitz. Dr. Karsten
Vilmar, the President of the Federal Medical Association,
even ventured to deny the necessity of any abortion caused
by a situation of social distress in such a rich state as
the Federal Republic of Germany. We consider that our views
concerning the abortion legislation in Section 218 are not
represented by these inhuman statements of the President of
the Federal Medical Association and we do not wish to be
associated with this and similar attempts to put a brake on
a necessary and reasonable development. From our own
professional experience we know the partly unresolvable
difficulties of women in our country who have become pregnant
against their will."
On 13 February 1980 the applicant's employer gave him notice
of the termination of his employment contract as from 31 March 1980.
The only reason invoked was his having signed the above letter to the
editor. This was seen as a violation of the duties under his
employment contract as the views expressed therein were diametrically
opposed to the opinion of the church concerning the killing of unborn
human beings and as he had deliberately published these views in a
magazine with a very wide circulation.
On 11 March 1980 the applicant and his colleague of the same
hospital, who had also been dismissed, gave a television interview in
which they were, inter alia, asked about the consequences which
they drew from the dismissal. The applicant replied that the first
consequence was not to depart from the views expressed earlier which
referred to the position of Section 218 and approved it.
The applicant's colleague declared that another consequence
was to take the case to the courts as they had only expressed support
for the existing legislation.
At this interview, the applicant and his colleague did not
repeat the contents of the above letter to the editor which was
summarised by the moderator.
As a consequence of this interview, the applicant's employer,
on 20 March 1980, again gave notice of dismissal to the applicant with
effect from 31 March 1980 or subsidiarily 30 June 1980. The reason
stated was that in the above television interview he had defended
views on Section 218 of the Penal Code before a wide audience which,
as he must have known, were unacceptable for his employer as a Catholic
hospital.
The applicant challenged both dismissals before the competent
labour courts which conducted two separate proceedings.
I. In the case concerning the dismissal of 13 February 1980,
the Labour Court (Arbeitsgericht) of Essen allowed the applicant's
action on 15 April 1980, holding that his dismissal was "manifestly
invalid". The applicant had acted outside his professional functions
when he signed the letter to the editor.
The employer's appeal (Berufung) was rejected by the Regional
Labour Court (Landesarbeitsgericht) of Düsseldorf on 8 September 1980.
It considered that the principle of church autonomy, as guaranteed by
Article 140 of Basic Law read in conjunction with Article 137 para. 3
of the Weimar Constitution, required that the rules enunciated by the
church should also be taken into account as regards employment
relationships. The applicant was not allowed to speak in public
against the views of the Catholic church concerning the inviolability
of unborn human life, and his freedom of expression was restricted in
this respect. However, the termination of the contract was
disproportionate. The applicant's interest to keep his job as a
trainee specialist had priority: his error concerning the lawfulness
of his statement was excusable, his statement was not directed
against the employer but against representatives of the medical
profession; it had been formulated by other people without the
applicant having influenced the wording; finally, it contained no
reference to the applicant's employment and therefore only very few
readers knew that he was employed by a Catholic hospital.
Because of the fundamental importance of the case, the
employer was granted leave to appeal on a point of law (Revision) to
the Federal Labour Court (Bundesarbeitsgericht). However, the
employer's appeal was rejected by that Court on 21 October 1982.
Generally, the Federal Labour Court followed the reasoning
of the Regional Labour Court. All church-employed physicians were
required not to speak out publicly against the views of the Catholic
church concerning the inviolability of unborn human life. This duty
did not violate the freedom of expression which had to be weighed
against the church autonomy which was also protected by the
constitution. In view of the importance which the church attributed
to the protection of unborn life it was not inappropriate to require a
physician to refrain from any public statement contradicting the basic
attitude of the church in this area.
Nevertheless, the applicant's dismissal was socially
unjustified because the church autonomy did not require sanctioning
each and every breach of loyalty of some weight by a dismissal without
taking into account the circumstances of the particular case.
II. The proceedings concerning the second dismissal generally
followed those concerning the first dismissal. By judgment of
21 May 1980 the Labour Court of Essen held that also the second
dismissal was socially unjustified. It was wrong to see a new
violation of the applicant's duties in the fact that he had merely
confirmed the views previously expressed. On 3 October 1980 the
Regional Labour Court confirmed this decision. It considered that the
television interview involved a new breach of loyalty, but that it was
justified by important interests which the applicant pursued. This
latter decision was confirmed by the Federal Labour Court on
21 October 1982.
III. The employer lodged constitutional complaints (Verfassungs-
beschwerden) in both cases, invoking the fundamental right of freedom
of religion under Article 4 para. 2 of the Basic Law and the right of
church autonomy under Article 140 of the Basic Law read in conjunction
with Article 137 para. 3 of the Weimar Constitution. The employer
challenged, in particular, the Federal Labour Court's view that the
degree of loyalty of church employees differs according to the measure
in which they participate in the specific religious functions of the
church.
The Federal Constitutional Court (Bundesverfassungsgericht)
dealt with the complaints in joint proceedings and allowed them by a
decision of 4 June 1985. It confirmed the view of the Federal Labour
Court that the constitutional guarantee of church autonomy was
applicable not only to the recognised churches as such but also to
institutions affiliated to them which in the understanding of the
church fulfilled religious functions. In the view of the Catholic
church religious practice was not limited to the area of faith and
worship but also comprised charitable activities. Accordingly, it was
an internal matter of the church to lay down the organisation and
administration of its charitable institutions.
The constitutional right of church autonomy included all
measures required for performing the charitable functions in
compliance with the views of the church. The churches were free
to decide which services they wished to provide by institutions of
their own and which legal form these activities should take. They
could create employment relationships in the exercise of their private
autonomy. If they chose the form of normal employment contracts they
were subjected to the labour law of the State. However, the
applicability of labour law did not remove these employment
relationships from the sphere of internal matters of the church.
Therefore it was possible to impose contractual obligations on a
person working for the church, requiring him to lead his life in
conformity with the doctrines of the church. By imposing such duties
of loyalty, the ecclesiastical employer exercised his freedom of
contract, and at the same time his constitutional right of church
autonomy. Only in this way was it possible for the churches to
organise their activities within the limits of the laws of general
application and yet according to their own views.
The churches were entitled to organise their activities on the
basis of the particular idea that all of their employees constituted a
christian community even if their activities were carried out on the
basis of employment contracts. Furthermore, the church was entitled
to impose on its employees the observance of at least the main
principles of the dogmatic and moral teachings of the church in the
interest of the credibility of a church.
The Federal Constitutional Court recognised that church
autonomy was limited. The right of the churches to administer their
own internal affairs was guaranteed only within the limits of the
generally applicable laws. As the churches were, however, free by
virtue of their autonomy to organise their activities on the basis of
the idea of a christian community and corresponding duties, it was a
constitutional requirement to take this idea into account also when
applying the law on protection against dismissals.
Therefore, it was, in principle, left to the church to lay
down with binding effect what was necessary for the credibility of the
church and of its doctrine, what were the specific tasks of the
church, what was closely related to these tasks, what were the
essential principles of faith and morals and what was to be regarded
as a breach or a serious breach of these principles.
The views of the church were binding unless they were in
conflict with fundamental principles of the legal system, such as the
prohibition of arbitrariness (Article 3 para. 1 of the Basic Law) or
the requirement of compliance with moral principles (gute Sitten,
Section 138 para. 1 of the Civil Code) or with the ordre public
(Article 30 of the Introductory Act to the Civil Code).
The Federal Constitutional Court then examined whether in the
labour court proceedings the above constitutional principles had been
complied with. It found that in the weighing of interests the Federal
Labour Court had not sufficiently taken into account the principle of
church autonomy. According to ecclesiastical law, the killing of an
unborn human being was a serious crime which attracted the sanction of
automatic excommunication according to the Codex Juris Canonici
Canones 2257 para. 1 and 2350 para. 1. This doctrine had existed in
the church since the first centuries and had been confirmed by the
second Vatican Council. Under constitutional law it was these views
of the church which must constitute the basis for judging the
applicant's breach of loyalty.
On 15 January 1986 the Federal Labour Court thereupon rejected
the applicant's actions against his first and second dismissal,
following the reasoning of the Federal Constitutional Court in
conformity with Section 31 of the Federal Constitutional Court Act.
The applicant's dismissal with effect from 31 March 1980 thus
became finally valid. In the meanwhile he had been offered a post in a
Catholic hospital in Duisburg as from 1 September 1985. The offer was
withdrawn following the judgment of 15 January 1986. As a consequence
the applicant remained unemployed for a month. He is now working in a
non-Catholic hospital.
COMPLAINT
The applicant alleges a violation of his right to freedom
of expression as guaranteed by Article 10 of the Convention.
PROCEEDINGS
The application was introduced on 20 June and registered on
26 June 1986.
On 2 May 1988 the Commission decided that, in accordance with
Rule 42 para. 2 (b) of the Commission's Rules of Procedure, notice
should be given to the respondent Government of the application and
that they should be invited to submit written observations on the
admissibility and merits before 15 July 1988.
On 6 July 1988 the President acceded to a request by the
Government to extend this time-limit until 18 August 1988.
The Government submitted their observations on 15 August 1988
and the applicant submitted observations in reply on 17 October 1988.
On 10 March 1989 the Commission decided to invite the parties,
in accordance with Rule 42 para. 3 (b) of the Rules of Procedure, to
submit further observations orally at a hearing.
The hearing took place on 6 September 1989. The parties were
represented as follows:
The Government by their Agent, Ministerialdirigent
Dr. Jens Meyer-Ladewig from the Federal Ministry of Justice, who was
assisted by Professor Dr. Wolfgang Rüfner from the University of
Cologne, Adviser;
The applicant by his counsel, Professor Dr. Wolfgang Däubler
of the University of Bremen, who was assisted by Mr. Hubert Schmalz
from the Union of Public Services, Transport and Communication Workers,
Adviser.
THE LAW
The applicant alleges a violation of his right to freedom of
expression as guaranteed by Article 10 (Art. 10) of the Convention
which reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
The applicant claims that the State is responsible for an
interference with his right to freedom of expression as, following his
dismissal by a Catholic foundation because he had expressed a particular
opinion, the Federal Constitutional Court, adopting an unreasonably
wide interpretation of church autonomy, failed to protect him. The
constitutional norms applied did not provide a sufficiently precise,
and foreseeable, legal basis for the restriction of his freedom of
expression which, moreover, was disproportionate and not necessary in
a democratic society for any of the purposes recognised in Article 10
para. 2 (Art. 10-2).
The Government deny that there has been any direct
interference by the State with the applicant's freedom of expression.
The limitation of this freedom resulted from the applicant's
employment contract with a church institution in which he waived
this freedom as regards statements contrary to his duty of loyalty.
The applicant could freely express his views concerning abortion, but
he had no right to do so while being employed in a Catholic hospital
where he had assumed special duties and responsibilities. According
to the Government the State was not required to protect him vis-à-vis
the employer beyond ensuring that the latter did not make unreasonable
demands on him. In this respect it was appropriate for the State to
adopt a restrictive approach having regard to the church's right to
regulate its internal affairs which is recognised not only in German
constitutional law, but also in Article 9 (Art. 9) of the Convention. The
legal basis for the restriction of the applicant's freedom of
expression was sufficiently concrete and foreseeable. The restriction
was also proportionate, having regard in particular to the applicant's
special duties as a physician employed in a Catholic hospital and the
State's wide margin of appreciation.
The Commission must first determine whether in the
circumstances of the case the applicant is entitled to invoke his
freedom of expression under Article 10 (Art. 10). The Government
claim that he is debarred from doing so because he waived this
freedom by assuming certain duties of loyalty towards the Catholic
church in his employment contract.
The Commission finds no basis for the assumption that the
applicant waived his freedom of expression as such. That he accepted
the status of a doctor employed by a Catholic hospital could not
deprive him of the protection afforded by Article 10 (Art. 10).
However, Article 10 (Art. 10) can only be violated if there
has been a State interference with the applicant's rights under this
provision. Unlike the situation in the Kosiek and Glasenapp cases (cf.
Eur. Court H.R. judgments of 28 August 1986, Series A nos. 104 and
105) the dismissal on the ground of the expression of certain opinions
was not pronounced by a State authority. The applicant was
dismissed by a private employer. The fact that this was a Catholic
foundation and that in German law the Catholic church is regarded as
a corporation of public law does not make the dismissal an act of
the State. Under the Convention the State cannot be held
responsible for acts of the Catholic church or its institutions which
must be regarded as non-governmental organisations within the
meaning of Article 25 (Art. 25) of the Convention. There is thus no
question of a direct State interference with the applicant's
freedom of expression by his dismissal.
The applicant claims that there has been an indirect State
interference in that the German courts failed to protect his freedom
of expression against the sanction of dismissal. The Government
submit that the courts were not required to protect the applicant as
he had accepted limitations of his freedom of expression in his
employment contract.
The Commission notes that by entering into contractual
obligations vis-à-vis his employer the applicant accepted a duty of
loyalty towards the Catholic church which limited his freedom of
expression to a certain extent. Similar obligations may also be
agreed with other employers than the Catholic church or its
institutions. In principle, the Convention permits contractual
obligations of this kind if they are freely entered into by the person
concerned. A violation of such obligations normally entails the legal
consequences stipulated in the contract, including dismissal. Their
enforcement with the assistance of the competent State authorities
does not as such constitute an "interference by public authority" with
the rights guaranteed by Article 10 para. 1 (Art. 10-1) of the
Convention (cf. Application No. 11142/84, Carrillo and Burgoa v.
Spain, Dec. 3.12.86, to be published in D.R.).
It is true that under Article 1 (Art. 1) of the Convention the
State is required to "secure" the Convention rights to everyone
within its jurisdiction. In certain cases it may therefore be
necessary for the State to take positive action with a view to
effectively securing these rights (cf. Eur. Court H.R., Marckx
judgment of 13 June 1979, Series A no. 31, p. 15 para. 31; judgment
of X and Y v. the Netherlands of 26 March 1985, Series A no. 91, p.
11 para. 23; Abdulaziz, Cabales and Balkandali judgment of 28 May
1985, Series A no. 94, p. 33 para. 67; Plattform "Ärzte für das
Leben" judgment of 21 June 1988, Series A no. 139, p. 12 para. 32).
In the case of Young, James and Webster it was held that a positive
obligation could arise for the State to provide protection against
dismissals pronounced because the applicants had refused to join
particular trade unions. The compulsion to do so, under sanction of
dismissal, was seen as an interference with their right to freedom of
association under Article 11 (Art. 11) of the Convention (Eur. Court
H.R., judgment of 13 August 1981, Series A no. 44, p. 23 para. 55),
and the State's responsibility was seen as being engaged by the
enactment of legislation which made this treatment of the
applicants lawful and thus failed to secure them their rights under
Article 11 (Art. 11) (ibid. p. 20 para. 49).
The Commission has examined whether in the present case a
similar obligation existed for the State to secure the applicant's
right to freedom of expression against the measure of dismissal taken
by his employer. The normal Labour Court procedure was available to
the applicant and the competent courts were required to weigh the
applicant's interests, including his interest in freedom of
expression, against those of his employer. It is true that particular
weight was finally given to the views of the church concerning the
duties of loyalty of church employees. According to the Federal
Constitutional Court this was necessary in order to safeguard the
constitutional right of the church to regulate its internal affairs.
Nevertheless the Federal Constitutional Court held that there were
limits to the right of the church to impose its views on its
employees. In particular the State courts were competent to ensure
that no unreasonable demands of loyalty were made. The requirement to
refrain from making statements on abortion in conflict with the
church's views was not seen as an unreasonable demand because of the
crucial importance of this issue for the church. In the case of a
doctor employed in a Catholic hospital it was also relevant that the
church regards the exercise of charitable functions as one of its
essential tasks.
The Commission is satisfied that German law, as interpreted by
the Federal Constitutional Court, takes account of the necessity to
secure an employee's freedom of expression against unreasonable
demands of his employer, even if they should result from a valid
employment contract. If, as in the present case, the employer is an
organisation based on certain convictions and value judgments which it
considers as essential for the performance of its functions in
society, it is in fact in line with the requirements of the Convention
to give appropriate scope also to the freedom of expression of the
employer. An employer of this kind would not be able to effectively
exercise this freedom without imposing certain duties of loyalty on
its employees. As regards employers such as the Catholic foundation
which employed the applicant in its hospital, the law in any event
ensures that there is a reasonable relationship between the measures
affecting freedom of expression and the nature of the employment as
well as the importance of the issue for the employer. In this way it
protects an employee against compulsion in matters of freedom of
expression which would strike at the very substance of this freedom
(cf. a contrario Young, James and Webster judgment, loc. cit., p. 23
para. 55). The Commission considers that Article 10 (Art. 10) of the
Convention does not, in cases like the present one, impose a
positive obligation on the State to provide protection beyond this
standard.
It follows that there has been no State interference with the
applicant's right to freedom of expression as guaranteed in Article 10
para. 1 (Art. 10-1) of the Convention, nor a failure to comply with
positive obligations resulting from this provision. The applicant's
complaint must therefore be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)