Case: Karlheinz Schmidt v. Germany
Judgement date: 18 July 1994
Topic: Gender equality
Aspect: Obligation imposed solely on men to serve in the fire brigade or pay a financial contribution in lieu

Summary of the facts:
The applicant claimed to be the victim of discrimination on the ground of sex in so far as in the Land of Baden-Württemberg only men were subject to the obligation to serve as firemen or pay a financial contribution in lieu of such service.

Summary of the Court's findings:
The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 4 § 3 (d) (prohibition of forced labour) of the Convention. It noted in particular that some German Länder did not impose different obligations for the two sexes in this field and that even in  Baden-Württemberg women were accepted for voluntary service in the fire brigade. Furthermore, irrespective of whether or not there could exist any justification for treating men and women differently as regards compulsory service in the fire brigade, what was finally decisive in the present case was that the obligation to perform such service was exclusively one of law and theory. In view of the continuing existence of a sufficient number of volunteers, no male person was in practice obliged to serve in a fire brigade. Lastly, the financial contribution had – not in law but in fact – lost its compensatory character and had become the only effective duty. In the imposition of a financial burden such as this, a difference of treatment on the ground of sex could hardly be justified.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
6. Mr Karlheinz Schmidt, a German national who was born in 1939, lives at Tettnang, in the Land of Baden-Württemberg.
On 30 April 1982 the relevant municipal authorities required him to pay a fire service levy ( Feuerwehrabgabe ) of 75 German marks (DM) for 1982. This decision was based on section 43 of the Land Fire Brigades Act, as amended on 27 November 1978 ( Feuerwehrgesetz, see paragraph 14 below -"the 1978 Act") and on the municipal decree ( Satzung ) of 5 December 1979; it stated that all male adults residing in Tettnang at the beginning of the budget year (1 January) were liable to pay the contribution in question.
7. The applicant regarded this decision as contrary, inter alia, to the constitutional principle of equality before the law (Article 3 of the Basic Law - Grundgesetz ) and he appealed against it. The administrative authority ( Landratsamt ) of the district of Lake Constance ( Bodenseekreis ) rejected this appeal on 20 July.
8. On 16 August 1982 the applicant appealed to the Sigmaringen Administrative Court ( Verwaltungsgericht ), which dismissed his appeal on 18 August 1983. Referring to the case-law of the Federal Constitutional Court ( Bundesverfassungsgericht ) and to that of the Administrative Appeals Court ( Verwaltungsgerichtshof ) of the Land, it ruled that the obligation for men, and not women, to serve in the fire brigade or to make a financial contribution was compatible with the Constitution.
9. The Administrative Appeals Court dismissed the appeal which Mr Schmidt had filed against the decision of the Administrative Court; it refused him leave to appeal on points of law.
It pointed out that like the Constitutional Court it had always held the legislation requiring only the male residents of a municipality to pay a fire service levy to be consistent with the Constitution. The applicant ’ s arguments could not persuade it to reconsider its case-law or to refer the question to the Constitutional Court again. There were no new facts to present to the Constitutional Court and there had not been a fundamental change in legal opinion on the subject. The Administrative Appeals Court stated that it endorsed the opinion expressed in the Constitutional Court ’ s judgment of 5 July 1983 to the effect that, in view of the risks inherent in service in the fire brigade, there remained objective reasons for imposing the obligation on men but not on women.
10. The applicant challenged this judgment, which had been delivered on 25 March 1986, in so far as it had refused him leave to appeal on points of law, but the Federal Administrative Court ( Bundesverwaltungsgericht ) dismissed his appeal on 6 October 1986.
In its view, the case raised no issue of principle ( grundlegende Bedeutung ). On the question whether the imposition of a fire service levy was in breach of the Constitution, it concluded that it was not, in conformity with a judgment of the Constitutional Court of 17 October 1961. It would only be possible to refer the matter once again to the Constitutional Court if there were new facts or a fundamental change in legal opinion. However, the Land Administrative Appeals Court had found no evidence of this.
11. On 11 November 1986 Mr Schmidt applied finally to the Federal Constitutional Court, which on 31 January 1987, sitting as a panel of three members, declined to accept the appeal for adjudication, on the ground that it did not have sufficient prospects of success. It noted, inter alia:
"...
The Federal Constitutional Court has already held, in its judgment of 17 October 1961 ..., concerning the provision which corresponds to the present section 43 para. 2, first sentence, of the Baden-Württemberg Fire Brigades Act, that there had been no violation of the principle of equal treatment. In subsequent decisions delivered ... on 6 December 1978 (1 BvR 722/77), 13 November 1979 (1 BvR 768/79), 5 July 1983 (1 BvR 210/83), 19 November 1985 (1 BvR 609/85) and 11 December 1985 (1 BvR 1277/85), it stated that from the point of view of Article 3 para. 2 of the Basic Law [enshrining the principle of sexual equality] there had still been no general change in legal opinion; the fact that the obligation to serve in the fire brigade was limited to the male residents of a municipality still continued to be objectively justified on account of the risks inherent in service in the fire brigade, even though some fire brigade duties were performed by women and recently fire brigades for female volunteers had even been set up.
Nor does the fact that the Länder of Lower Saxony (section 14 para. 3 of the Lower Saxony Fire Protection Act) and the Rhineland-Palatinate (section 10 para. 2 of the Rhineland- Palatinate Fire Protection Act) make provision for an obligation to serve in the fire brigades regardless of sex constitute a reason for departing from this case-law. The sole decisive factor is that there remain today objective reasons ( Anknüpfungspunkte ) on the basis of which the legislature is entitled to treat men and women differently in this regard. That does not mean that there is an obligation to enact regulations differentiating between the sexes.
..."

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW
12. The Baden -Württemberg Fire Brigades Act dates from 1 April 1956; it has been amended on several occasions, most recently on 10 February 1987. At the time of the events in the present case the Act was applicable as amended on 27 November 1978.
13. The Act requires municipalities to set up proficient fire brigades which may be composed of volunteers or professionals (sections 4 para. 1 and 8 para. 1). Their role is to deal with, among other things, fires, natural disasters and collapsed buildings, but they may also be required to ensure safety in theatres, at meetings and exhibitions and also at markets (section 2 paras. 1 and 2). All the male residents of the municipality between the ages of 18 and 50 inclusive may be required to serve as firemen, unless they can show that they are unfit to do so on health grounds (section 13 para. 1). If there are insufficient volunteers, the municipalities may call upon these residents to serve (section 13 para. 2), but so far this has never occurred in Baden-Württemberg.
As the Act does not recognise a right to active service, the municipalities may refuse to accept a volunteer (section 12 para. 3).
14. The municipalities may adopt decrees making provision for a fire service levy of up to 200 DM; the resulting funds may only be used to meet the needs of the fire brigade (section 43 paras. 1 and 4).
Anyone who is liable for fire service duty (section 13) and who resides in the municipality at the beginning of the budget year, may be required to pay this levy (section 43 para. 2). Certain persons are, however, exempted, such as the members of the municipal fire brigade (section 43 para. 3).
15. The system operated in Baden-Württemberg was challenged upon the entry into force of the Act on 1 April 1956. On 17 October 1961 the Federal Constitutional Court ruled that the fire service levy was compatible with the Basic Law and in particular with the general principle of equality before the law in so far as it constituted a "compensatory charge" ( Ausgleichsabgabe ) deriving directly from the obligation to serve.
16. In thirteen of the sixteen Länder of the Federal Republic of Germany - including Baden-Württemberg -, the residents of municipalities are required by law to perform active service in the fire brigade if there are insufficient volunteers. Nine Länder make provision for such service solely for male residents. In addition to Baden-Württemberg, residents are required to pay a contribution to the fire brigade or to the fire protection department in Bavaria, Saxony and Thüringen. Where service is compulsory for residents of both sexes, both men and women are liable to pay the contribution.
17. Moreover, according to information provided by the applicant and not contested, 68,612 women had served in fire brigades in Germany as at 31 December 1991 and in Baden-Württemberg women have been permitted to serve in fire brigades since 1978.
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Karlheinz Schmidt applied to the Commission on 11 August 1987. Relying on Article 14 taken in conjunction with Article 4 para. 3 (d) of the Convention and Article 1 of Protocol No. 1 (art. 14+4-3-d, art. 14+P1-1), he complained of a breach of the principle of sexual equality in so far as in the Land of Baden-Württemberg only men were subject to the obligation to serve as firemen or pay a financial contribution.
19. The Commission declared the application (no. 13580/88) admissible on 8 January 1992.
In its report of 14 January 1993 (drawn up under Article 31) (art. 31), it expressed the opinion, by fourteen votes to three, that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and with Article 4 para. 3 (d) (art. 14+P1-1, art. 14+4-3-d) of the Convention. The full text of its opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*].
FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT
20. In their memorial the Government requested the Court to hold
"that there has been no violation of the applicant ’ s rights under Article 14 taken in conjunction with Article 4 para. 3 (d) of the Convention and with Article 1 of Protocol No. 1 (art. 14+4-3-d, art. 14+P1-1)".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 PARA. 3 (d) (art. 14+4-3-d)
21. Mr Karlheinz Schmidt complained that he was required to pay a fire service levy under an Act of the Land of Baden-Württemberg, which made it compulsory for men, but not women, to serve in the fire brigade or pay a financial contribution in lieu of such service (see paragraphs 12-14 above). He claimed to be the victim of discrimination on the ground of sex in breach of Article 14 taken in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) of the Convention, which provisions state as follows:
Article 14 (art. 14)
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, ..."
Article 4 (art. 4)
"1. ...
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article (art. 4) the term ‘ forced or compulsory labour ’ shall not include:
...
(d) any work or service which forms part of normal civic obligations."
A. Applicability
22. As the Court has consistently held, Article 14 (art. 14) complements the other substantive provisions of the Convention and the 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 (art. 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, in particular, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, para. 71, and the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, para. 36).
The Court reiterates that paragraph 3 of Article 4 (art. 4-3) is not intended to "limit" the exercise of the right guaranteed by paragraph 2 (art. 4-2), but to "delimit" the very content of that right, for it forms a whole with paragraph 2 and indicates what "the term ‘ forced or compulsory labour ’ shall not include" ( ce qui" n ’ est pas considéré comme ‘ travail forcé ou obligatoire ’ "). This being so, paragraph 3 (art. 4-3) serves as an aid to the interpretation of paragraph 2 (art. 4-2). The four subparagraphs of paragraph 3 (art. 4-3), notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 19, para. 38).
23. Like the participants in the proceedings, the Court considers that compulsory fire service such as exists in Baden-Württemberg is one of the "normal civic obligations" envisaged in Article 4 para. 3 (d) (art. 4-3-d). It observes further that the financial contribution which is payable - in lieu of service - is, according to the Federal Constitutional Court (see paragraph 15 above), a "compensatory charge". The Court therefore concludes that, on account of its close links with the obligation to serve, the obligation to pay also falls within the scope of Article 4 para. 3 (d) (art. 4-3-d).
It follows that Article 14 read in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) applies.
B. Compliance
24. For the purposes of Article 14 (art. 14) a difference of treatment is discriminatory 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". Moreover 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 (see the Abdulaziz, Cabales and Balkandali judgment, cited above, pp. 35-36, para. 72). However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention (see the Schuler- Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22, para. 67, and the Burghartz v. Switzerland judgment of 22 February 1994, Series A no. 280-B, p. 29, para. 27).
25. According to the applicant, the Contracting States do not enjoy any margin of appreciation as regards equality of the sexes. He argued that service in the fire brigade was comparable for men and for women and that account could be taken of the biological differences between the two sexes by a sensible division of the various tasks. The concern to protect women could not in itself justify a difference of treatment in this context. As at 31 December 1991, 68,612 women had served in fire brigades in Germany and even in Baden-Württemberg the fire brigades had accepted women since 1978. The financial contribution was of a purely fiscal nature, as in Baden-Württemberg no man had ever been called upon to serve. There was in any case discrimination since women were just as capable as men of paying the levy in question.
26. The Commission in substance accepted the applicant ’ s argument.
27. In the Government ’ s view, on the other hand, the difference of treatment is based on objective and reasonable grounds. Fire brigade duty is a traditional civic obligation in Baden-Württemberg, defined by the Federal Constitutional Court as a "genuine and potential obligation to perform a public duty". The Government maintained that, in making this duty compulsory solely for the male sex, the legislature had taken account of the specific requirements of service in the fire brigade and the physical and mental characteristics of women. The sole aim which it had pursued in this respect was the protection of women. The financial contribution was purely compensatory in nature.
28. The Court notes that some German Länder do not impose different obligations for the two sexes in this field and that even in Baden-Württemberg women are accepted for voluntary service in the fire brigade.
Irrespective of whether or not there can nowadays exist any justification for treating men and women differently as regards compulsory service in the fire brigade, what is finally decisive in the present case is that the obligation to perform such service is exclusively one of law and theory. In view of the continuing existence of a sufficient number of volunteers, no male person is in practice obliged to serve in a fire brigade. The financial contribution has - not in law but in fact - lost its compensatory character and has become the only effective duty. In the imposition of a financial burden such as this, a difference of treatment on the ground of sex can hardly be justified.
29. There has accordingly been a violation of Article 14 taken in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)
30. In view of the finding in paragraphs 28 and 29 above, the Court does not consider it necessary also to examine the complaint that the applicant was the victim of discrimination contrary to Article 14 (art. 14) of the Convention as regards his right to the peaceful enjoyment of his possessions, guaranteed under Article 1 of Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
31. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
32. The applicant sought the reimbursement of the fire service levy in respect of the years 1982 to 1984 (DM 225) and of the costs and expenses incurred before the national courts (DM 395).
The Government raised no objection to this claim. The Delegate of the Commission regarded it as reasonable.
33. On the basis of the evidence available to it, the Court allows the applicant ’ s claims in their entirety.