Instantie

Europees Hof voor de rechten van de mens

Samenvatting

De vader studeert, heeft een parttime baan en neemt ouderschapsverlof op om
voor zijn kind te zorgen; de moeder blijft werken. De vader heeft geen recht
op een uitkering in verband met ouderschapsverlof, alleen moeders komen
daarvoor in aanmerking. Het Hof oordeelt dat de weigering om de vader een
uitkering te geven niet kan worden gezien als een tekortkoming in de
bescherming van het gezinsleven; artikel 8 bevat geen positieve verplichting
om een dergelijke uitkering te verstrekken. Niettemin heeft de uitkering tot
doel het gezinsleven te ondersteunen, en is zij noodzakelijkerwijze van
invloed op de wijze waarop dat gezinsleven wordt vormgegeven. De uitkering
valt derhalve binnen de reikwijdte van art. 8 EVRM. Om onderscheid op grond
van geslacht te kunnen rechtvaardigen zijn zeer zwaarwegende belangen vereist
(art. 14 EVRM). De verdragspartijen wordt een zekere margin of appreciation
gelaten om te bepalen of het gerechtvaardigd is onderscheid te maken in
overigens gelijke situaties. Gezien de ontwikkelingen in de late jaren
tachtig als wel de ontwikkelingen in de andere lidstaten is Oostenrijk zijn
margin of appreciation niet te buiten gegaan; geen strijd met art. 8, 14
EVRM.

Volledige tekst

Judgment delivered by a Chamber
Austria – authorities’ refusal to grant parental leave allowance to a father,
on ground that allowance was only available to mothers (section 26(1) of
Unemployment Benefit Act 1977)

Article 14 of the convention taken together with Article 8

A. Applicability
Recapitulation of Court’s case-law – allowance paid by State was intended to
promote family life and necessarily affected way in which latter was
organised – allowance enabled States to demonstrate their respect for family
life and therefore came within scope of Article 8.
Conclusion: Article 14 taken together with Article 8 applicable.

B. Compliance
Recapitulation of Court’s case-law – existence of difference in treatment on
grounds of sex and mother and father similarly placed as far as taking care
of child concerned – Contracting States enjoyed a certain margin of
appreciation, whose scope varied according to circumstances, subject matter
and background – in that respect, one of the relevant factors might be the
existence or non-existence of common ground between laws of Contracting
States – no common standard in that field at material time, as majority of
Contracting States had not provided for parental leave allowances to be paid
to fathers – gradual introduction by Austrian legislature of legislation
which was very progressive in Europe – there still remained very great
disparity between legal systems of Contracting States in that field –
Austrian authorities’ refusal to grant applicant parental leave allowance had
not, therefore, exceeded margin of appreciation allowed to them.
Conclusion: no violation of Article 14 taken together with Article 8 (seven
votes to two).

court’s case-law referred to
27.10.1975, National Union of Belgian Police v. Belgium; 6.2.1976, Schmidt
and Dahlström v. Sweden; 28.11.1984, Rasmussen v. Denmark; 24.6.1993,
Schuler-Zgraggen v. Switzerland; 18.7.1994, Karlheinz Schmidt v. Germany;
21.2.1997, Van Raalte v. the Netherlands

In the case of Petrovic v. Austria,
The European Court of Human Rights, sitting, in accordance with Article 43 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) and the relevant provisions of Rules of Court B, as a
Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr A. Spielmann,
Sir John Freeland,
Mr M.A. Lopes Rocha,
Mr B. Repik,
Mr J. Casadevall,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 27 October 1997 and 28 February 1998,
Delivers the following judgment, which was adopted on the last-mentioned
date:

PROCEDURE

1. The case was referred to the Court by the European Commission of Human
Rights (“the Commission”) on 5 December 1996, within the three-month period
laid down by Article 32 1 and Article 47 of the Convention. It originated
in an application (no. 20458/92) against the Republic of Austria lodged with
the Commission under Article 25 by an Austrian national, Mr Antun Petrovic,
on 3 August 1992.
The Commission’s request referred to Articles 44 and 48 and to the
declaration whereby Austria recognised the compulsory jurisdiction of the
Court (Article 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent State of
its obligations under Article 14 taken together with Article 8 of the
Convention.

2. In response to the enquiry made in accordance with Rule 35 3 (d) of Rules
of Court B, the applicant stated that he wished to take part in the
proceedings and designated the lawyer who would represent him (Rule 31). The
lawyer was given leave by the President to use the German language (Rule 28
3).

3. The Chamber to be constituted included ex officio Mr F. Matscher, the
elected judge of Austrian nationality (Article 43 of the Convention), and Mr
R. Bernhardt, the Vice-President of the Court (Rule 21 4 (b)). On 20
January 1997, in the presence of the Registrar, the President of the Court,
Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr
L.-E. Pettiti, Mr B. Walsh, Mr R. Macdonald, Sir John Freeland, Mr M.A. Lopes
Rocha, Mr B. Repik and Mr J. Casadevall (Article 43 in fine of the Convention
and Rule 21 5). Subsequently, Mr A. Spielmann, substitute judge, replaced
Mr Macdonald, who was unable to take part in the further consideration of the
case (Rules 22 1 and 24 1).

4. As President of the Chamber (Rule 21 6), Mr Bernhardt, acting through
the Registrar, consulted the Agent of the Austrian Government (“the
Government”), the applicant’s lawyer and the Delegate of the Commission on
the organisation of the proceedings (Rules 39 1 and 40). Pursuant to the
order made in consequence, the Registrar received the applicant’s memorial
and the Government’s memorial on 20 and 21 August 1997 respectively.
On 19 September 1997 the Commission produced various documents from the
proceedings before it, as requested by the Registrar on the President’s
instructions.

5. In accordance with the President’s decision, the hearing took place in
public in the Human Rights Building, Strasbourg, on 23 October 1997. The
Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Director of the Constitutional Service,
Federal Chancellery, Agent,
Mr R. Sauer, Federal Ministry of Employment
and Social Affairs,
Mrs E. Bertagnoli, International Law Department,
Federal Ministry of Foreign Affairs, Advisers;
(b) for the Commission
Mr B. Marxer, Delegate;
(c) for the applicant
Mr A. Laimer, of the Vienna Bar, Counsel.

The Court heard addresses by Mr Marxer, Mr Laimer and Mr Okresek.

AS TO THE FACTS

the circumstances of the case

6. Mr Antun Petrovic, an Austrian national, was born in 1950 and lives in
Vienna.

7. At the material time, he was a student and worked part time. His wife, who
had already finished her university studies and was a civil servant in a
federal ministry, gave birth on 27 February 1989. She carried on working
while the applicant took parental leave to look after the child.

8. On 25 April 1989 Mr Petrovic claimed a parental leave allowance
(Karenzurlaubsgeld).

9. On 26 May 1989 his claim was turned down by the local employment office
(Arbeitsamt) on the ground that section 26(1) of the Unemployment Benefit Act
1977 (see paragraph 14 below) provided that only mothers could claim such an
allowance when a child was born.

10. On 14 June 1989 the applicant appealed against that decision to the
Vienna Regional Employment Office (Landesarbeitsamt). He contended that that
provision of the Unemployment Benefit Act, under which men were not entitled
to a parental leave allowance, was discriminatory and, therefore,
unconstitutional.

11. On 4 July 1989 the Regional Employment Office dismissed the applicant’s
appeal for the same reasons as the local employment office (see paragraph 9
above).

12. On 18 August 1989 Mr Petrovic lodged a complaint with the Constitutional
Court (Verfassungsgerichtshof). He again argued that section 26(1) of the
Unemployment Benefit Act was unconstitutional, as it was inconsistent with
the principle of equality and Article 8 of the Convention.

13. On 12 December 1991, after considering the complaint in private, the
Constitutional Court declined to accept it for adjudication on the ground
that it did not have sufficient prospects of success.
Referring to its case-law, the Constitutional Court held that section 26(1)
did not infringe the applicant’s constitutional rights and was not contrary
to Article 8 or Article 12 of the Convention. It added that even if regard
was had to recent statutory amendments (section 26 of the Unemployment
Benefit Act had been amended by a federal law of 12 December 1989 – see
paragraph 15 below), the applicant’s complaint was unfounded, seeing that the
legislature had a certain amount of time in which to adapt new rules to
changes in society (Anpassung gesetzlicher Vorschriften an geänderte
Verhälnisse).

II. Relevant domestic law

Legislation in force at the material time
14. Under section 26(1) of the Unemployment Benefit Act 1977, mothers were
entitled to a parental leave allowance provided that, following the birth of
their child, they took up to one year’s parental leave and were eligible for
maternity benefit (Wochengeld – a welfare allowance payable to working
mothers for a period of eight weeks after the birth).

B. Subsequent legislation
15. That section was amended by a federal law of 12 December 1989 (Official
Gazette no. 651/1989), which came into force on 1 January 1990. It is now
provided that a father may claim a parental leave allowance if he is in
employment, has primary responsibility for looking after the child and the
child lives under the same roof. In addition, the mother must either be
entitled to parental leave as a result of the birth and have waived that
right in whole or in part or, if not entitled to parental leave, be prevented
by her work from looking after the child.
However, the new rules apply only in respect of children born after 31
December 1989 and therefore do not cover the applicant, whose child was born
on 27 February 1989.

PROCEEDINGS BEFORE THE COMMISSION

16. Mr Petrovic applied to the Commission on 3 August 1992. Relying on
Article 8 of the Convention and on Article 14 taken together with Article 8,
he complained of the refusal to grant him a parental leave allowance and of
the discriminatory nature of that decision. He also alleged a breach of
Article 13 of the Convention in that the Constitutional Court had refused to
consider his appeal.

17. On 5 July 1995 the Commission declared the application (no. 20458/92)
admissible as to the complaint concerning the allegedly discriminatory
refusal to grant him a parental leave allowance, and inadmissible as to the
remainder.
In its report of 15 October 1996 (Article 31), it expressed the opinion that
there had been a violation of Article 14 taken together with Article 8 of the
Convention (by twenty-five votes to five). The full text of the Commission’s
opinion and of the three dissenting opinions contained in the report is
reproduced as an annex to this judgment.1

FINAL SUBMISSIONS TO THE COURT

18. In their memorial the Government asked the Court to
“declare that Article 8 of the Convention is not applicable to the present
case or, alternatively, to declare that Article 8 read in conjunction with
Article 14 of the Convention was not violated”.

19. The applicant requested the Court to
“declare his application admissible, as the Commission has done, and to hold
that in the instant case there has been a breach of Article 14 taken together
with Article 8 [and] to award him just satisfaction in accordance with
Article 50…”

As to the Law

Alleged violation of Article 14 of the Convention taken together with Article
8

20. Mr Petrovic complained of the Austrian authorities’ refusal to award him
a parental leave allowance under section 26(1) of the Unemployment Benefit
Act 1977 (see paragraph 14 above), which provided that only mothers were
entitled to receive such payments. He alleged that he was the victim of
discrimination on grounds of sex in breach of Article 14 of the Convention
taken together with Article 8, which provide:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall
be secured without discrimination on any ground such as sexa”
Article 8
“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.”

21. The Commission accepted the applicant’s submission but the Government
contested it.

A. Applicability of Article 14 taken together with Article 8

22. As the Court has consistently held, Article 14 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 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 (see, among many other authorities, the Karlheinz Schmidt
v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, 22, and the
Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of
Judgments and Decisions 1997-I, p. 184, 33).

23. The applicant submitted that any financial assistance enabling parents to
stop working in order to look after their children affected family life and
therefore came within the scope of Article 8 of the Convention.

24. The Government argued that, on the contrary, the parental leave allowance
did not come within the scope of Article 8 since, firstly, that provision did
not contain any general obligation to provide financial assistance to parents
so that one of them could stay at home to look after their children and,
secondly, the parental leave allowance was a matter of welfare policy which
was not to be included within the concept of family life.

25. The Court therefore has to determine whether the facts of the present
case come within the scope of Article 8 and, consequently, of Article 14 of
the Convention.

26. In this connection the Court, like the Commission, considers that the
refusal to grant Mr Petrovic a parental leave allowance cannot amount to a
failure to respect family life, since Article 8 does not impose any positive
obligation on States to provide the financial assistance in question.

27. Nonetheless, this allowance paid by the State is intended to promote
family life and necessarily affects the way in which the latter is organised
as, in conjunction with parental leave, it enables one of the parents to stay
at home to look after the children.

28. The Court has said on many occasions that Article 14 comes into play
whenever “the subject-matter of the disadvantage … constitutes one of the
modalities of the exercise of a right guaranteed” (see the National Union of
Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19, p.
20, 45), or the measures complained of are “linked to the exercise of a
right guaranteed” (see the Schmidt and Dahlström v. Sweden judgment of 6
February 1976, Series A no. 21, p. 17, 39).

29. By granting parental leave allowance States are able to demonstrate their
respect for family life within the meaning of Article 8 of the Convention;
the allowance therefore comes within the scope of that provision. It follows
that Article 14 – taken together with Article 8 – is applicable.

B. Compliance with Article 14 taken together with Article 8

30. Under the Court’s case-law, a difference in treatment is discriminatory
for the purposes of Article 14 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” (see, among other authorities,
the Karlheinz Schmidt judgment cited above, pp. 32-33, 24, and the Van
Raalte judgment cited above, p. 186, 39).

31. In the applicant’s submission, the different treatment of mothers and
fathers with respect to granting a parental leave allowance was not justified
at all. The allowance was not intended to protect mothers as it was not paid
until eight weeks after the birth and until the right to receive maternity
benefit had been exhausted, but to assist parents – whether mothers or
fathers – who wished to take leave to look after their very young children.

32. The Government, on the other hand, submitted that the fact that there was
no common European standard in the matter meant that the Austrian
legislature’s decision to pay a parental leave allowance only to mothers fell
within the margin of appreciation left to the Contracting States in respect
of welfare policy. Furthermore, the provisions in question reflected the
outlook of society at the time, according to which the mothers had the
primary role in looking after young children.

33. The Commission considered that the lack of a common standard with regard
to particular welfare benefits reflected the substantial diversity of
social-security schemes in the member States, but could not absolve those
States which had adopted a special scheme of parental leave allowances from
granting those benefits without discrimination. No objective and reasonable
grounds such as to justify the difference in treatment had been made out. The
applicant had accordingly been discriminated against in the exercise of his
right to respect for his family life as guaranteed by Article 8 of the
Convention.

34. The Court notes that at the material time parental leave allowances were
paid only to mothers, not fathers, once a period of eight weeks had elapsed
after the birth and the right to a maternity allowance had been exhausted
(section 26(1) of the Unemployment Benefit Act 1977 – see paragraph 14
above).

35. It was not disputed that that amounted to a difference in treatment on
grounds of sex.

36. Maternity leave and the associated allowances are primarily intended to
enable the mother to recover from the fatigue of childbirth and to breastfeed
her baby if she so wishes. Parental leave and the parental leave allowance,
on the other hand, relate to the period thereafter and are intended to enable
the beneficiary to stay at home to look after the infant personally. While
aware of the differences which may exist between mother and father in their
relationship with the child, the Court starts from the premise that so far as
taking care of the child during this period is concerned, both parents are
“similarly placed”.

37. It is true that 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 (see, for example, the Schuler-Zgraggen v.
Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22, 67, and
the Van Raalte judgment cited above, p. 186, 39 in fine).

38. However, 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 in law. The scope of the margin of
appreciation will vary according to the circumstances, the subject matter and
its background; in this respect, one of the relevant factors may be the
existence or non-existence of common ground between the laws of the
Contracting States (see, among other authorities, the Rasmussen v. Denmark
judgment of 28 November 1984, Series A no. 87, p. 15, 40).

39. It is clear that at the material time, that is at the end of the 1980s,
there was no common standard in this field, as the majority of the
Contracting States did not provide for parental leave allowances to be paid
to fathers.

40. The idea of the State giving financial assistance to the mother or the
father, at the couple’s option, so that the parent concerned can stay at home
to look after the children is relatively recent. Originally, welfare measures
of this sort – such as parental leave – were primarily intended to protect
mothers and to enable them to look after very young children. Only gradually,
as society has moved towards a more equal sharing between men and women of
responsibilities for the bringing up of their children, have the Contracting
States introduced measures extending to fathers, like entitlement to parental
leave.

41. In this respect Austrian law has evolved in the same way, the Austrian
legislature enacting legislation in 1989 to provide for parental leave for
fathers. In parallel, eligibility for the parental leave allowance was
extended to fathers in 1990 (see paragraph 15 above).
It therefore appears difficult to criticise the Austrian legislature for
having introduced in a gradual manner, reflecting the evolution of society in
that sphere, legislation which is, all things considered, very progressive in
Europe.

42. There still remains a very great disparity between the legal systems of
the Contracting States in this field. While measures to give fathers an
entitlement to parental leave have now been taken by a large number of
States, the same is not true of the parental leave allowance, which only a
very few States grant to fathers.

43. The Austrian authorities’ refusal to grant the applicant a parental leave
allowance has not, therefore, exceeded the margin of appreciation allowed to
them. Consequently, the difference in treatment complained of was not
discriminatory within the meaning of Article 14.

For these reasons, the Court
Holds by seven votes to two that there has been no violation of Article 14 of
the Convention taken together with Article 8.
Done in English and in French, and delivered at a public hearing in the Human
Rights Building, Strasbourg, on 27 March 1998.
Signed: Rudolf Bernhardt
President
Signed: Herbert Petzold
Registrar
In accordance with Article 51 2 of the Convention and Rule 55 2 of Rules
of Court B, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Pettiti;
(b) joint dissenting opinion of Mr Bernhardt and Mr Spielmann.
Initialled: R. B.
Initialled: H. P.

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.

Rechters

Mrs Bernhardt, President, Matscher, Pettiti, Walsh, Spielmann, Freeland,Lopes Rocha, Repik, Casadevall