PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 7 April 1993, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 13580/88) against the Federal Republic of Germany lodged with the Commission under Article 25 (art. 25) by a German national, Mr Karlheinz Schmidt, on 11 August 1987. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Germany recognised the compulsory jurisdiction of the Court (Article 46) (art. 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 of the Convention taken together with Article 1 of Protocol No. 1 and Article 4 para. 3 (d) (art. 14+P1-1, art. 14+4-3-d) of the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30). The President of the Court gave the lawyer in question leave to use the German language (Rule 27 para. 3).

The Chamber to be constituted included ex officio Mr R. Bernhardt, the elected judge of German nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mr J. De Meyer, Mrs E. Palm, Mr J.M. Morenilla, Sir John Freeland, Mr G. Mifsud Bonnici and Mr D. Gotchev (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently, Mr A. Spielmann, substitute judge, replaced Mr De Meyer, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).

As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Deputy Registrar, consulted the Agent of the German Government (“the Government“), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence the Registrar received the Government’s memorial on 22 November 1993 and the applicant’s observations on 22 and 26 November 1993. On 23 December the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. On 7 February 1994 the Commission produced various documents as requested by the Registrar on the President’s instructions.

In accordance with the decision of the President, who had also given the Government leave to use the German language (Rule 27 para. 2), the hearing took place in public in the Human Rights Building, Strasbourg, on 22 February 1994. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mr J. Meyer-Ladewig, Ministerialdirigent, Federal Ministry of Justice, Agent, Mr R. Vögtle, Oberregierungsrat, Ministry of the Interior of the Land of Baden- Württemberg, Mrs V. Jungewelter, judge at the Landgericht, on secondment to the Federal Ministry of Justice, Advisers;

for the Commission Mr A. Weitzel Delegate;

for the applicant Mr V. Olbrich, Regierungsrat, Counsel. The Court heard addresses by Mr Meyer-Ladewig, Mr Vögtle, Mr Weitzel and Mr Olbrich.

AS TO THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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.

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.

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.

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.

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.

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. ...“