PROCEDURE

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.

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).

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).

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.

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

I. the circumstances of the case

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

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.

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

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.

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.

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).

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.

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 Verhältnisse).