BLUMBERG v. GERMANY
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
The applicant, Mr Klaus Blumberg, is a German national who was born in 1947 and lives in Kelheim. He was represented before the Court by Mr L. Paproth, a lawyer practising in Munich. Since 1995 the applicant, a doctor, had been employed as an expert by the medical service of the Bavarian health insurance which provides medical expert reports to health insurance companies (Medizinischer Dienst der Krankenversicherung in Bayern). On 17 March 1999 the applicant’s employer ordered him to conduct a medical examination of an apprentice with a view to her being employed by a client health insurance company. On 18 and 19 March 1999 the applicant contested this instruction as he feared a “possible bias” which could lead to difficulties if he had to work with the apprentice in the future. He did not specify exactly what those difficulties might be. Following this refusal and two warnings (Abmahnungen) concerning the applicant’s failure to follow other instructions from his employer, he was dismissed on 25 March 1999. Subsequently, he lodged an action with the Munich Labour Court to have his dismissal annulled. He argued that a “moral dilemma” had prevented him from carrying out the requested examination. On 27 October 1999 the Munich Labour Court found for the applicant. It argued that, although he had not provided an objective or clear reasoning, the applicant had proved that he had experienced a subjective moral dilemma which could justify his refusal to carry out the examination. On 20 April 2001 the Munich Labour Court of Appeal quashed that decision and dismissed the applicant’s action, arguing that the applicant could not rely on his freedom of conscience for the following reasons: Firstly, when he had refused to carry out the examination on 18/19 March 1999, the applicant had not mentioned a moral dilemma, but referred only to a fear of “bias”. Moreover, the applicant could not rely on a moral dilemma, as he had at one point – even if only for a short period – been prepared to carry out the requested examination, which proved that he had not felt bound by an unconditional, compelling decision of conscience (unbedingt verpflichtende Gewissensentscheidung). Secondly, even assuming that his decision had been based on conscience, it had been impossible for the applicant’s employer, on the basis of the applicant’s reasoning, to appreciate that he had been experiencing a moral dilemma. In particular, the applicant had overlooked the fact that no conflict of interest would have arisen regardless of whether the applicant had recommended the apprentice for employment or not: he would only have had to work with the apprentice if he had recommended her. If he had decided in her favour, no question of conflict would have arisen. If the applicant had not recommended her, any future conflict would have been excluded because he would not have had to work with her. On 19 March 2002 the Federal Labour Court refused the applicant leave to appeal on points of law as the Labour Court of Appeal’s decision had not diverged from the case-law of the Federal Labour Court. On 23 October 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, and confirmed that the Labour Court of Appeal’s reasoning had not violated his freedom of conscience.