CASE OF KARLHEINZ SCHMIDT v. GERMANY
Violation of Art. 14+4-3-d;Not necessary to examine P1-1;Costs and expenses award - domestic proceedings
John Freeland
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. ..." 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.