Petrovic v. Austria
From DADEL
Case Summary
Petrovic v. Austria
European Court of Human Rights
Application no.20458/92
Judgment of 27 March 1998
The Applicant, an Austrian national, was denied a parental leave allowance while on parental leave to look after his child. The Applicant brought a claim of discrimination under Article 8 of the Convention and Article 14 of the Convention taken together with Article 8. The Court considered this under Article 14 taken together with Article 8.
Contents |
Facts
The Applicant and his wife had a child on 27 February 1989. The Applicant's wife returned to work, while the Applicant took parental leave to look after their child. He claimed a parental leave allowance, but this claim was turned down by the local employment office on the ground that section 26(1) of the Unemployment Benefit Act 1977 provided that only mothers could claim such an allowance.
Although this section was amended so that a father could claim parental leave allowance, provided certain criteria were met, the amendment did not cover the Applicant as his child was born before this provision came into force on 1 January 1990.
Admissibility
Part of the Application relating to the allegedly discriminatory refusal to grant him a parental leave allowance was found to be admissible.
Merits
The Court noted that Article 14 complemented other substantive provisions of the Convention and its Protocols. Since parental leave allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organized, the allowance comes within the scope of Article 8.
The Court noted that 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 realized.” The Court started from the premise that so far as taking care of the child in the parental leave period (the period of time after the maternity leave period) was concerned, both parents were similarly placed. The Court noted that very weighty reasons would be needed for this difference in treatment to be regarded as compatible with the Convention. The Contracting States do enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; however, the scope of the margin of appreciation varies according to the circumstance, the subject matter, and its background.
At the material time, the end of the 1980s, there was no common standard in this field. The majority of the Contracting States did not provide for parental leave allowances to be paid to fathers. This idea has gradually evolved, and likewise, the Austrian law has evolved the same way. Still at present, a large number of States did not grant parental leave allowances to fathers. Therefore, the Austrian authorities' refusal to grant the Applicant a parental leave allowance did not exceed the margin of appreciation and the difference in treatment was not discriminatory under Article 14.
Decision
The Court held seven votes to two that there was no violation of Article 14 of the Convention taken together with Article 8.
A concurring opinion felt that equality of treatment between men and women under the Convention did not require that they be treated absolutely alike under tax and economic provisions –- rights such as parental leave were indisputably inspired by the biological and psychological bond between mother and child, especially in the period following birth.
The joint dissenting opinion believed that there was a violation of Article 14 in conjunction with Article 8, as different treatment of fathers and of mothers regarding parental leave allowance was not compatible with the basic principle that both sexes must be treated equally by the State. There was no weighty reason for the difference in treatment, as traditional practices and roles in family life did not justify a difference in treatment between the sexes. Reference to the situation in other European States and to the lack of uniform practice was not conclusive, as there were different social security systems in the States and a State, when opting for one system, was not permitted to grant benefits in a discriminatory manner.