CASE OF PETROVIC v. AUSTRIA
No violation of Art. 14+8
John Freeland;B. Walsh
6. Mr Antun Petrovic, an Austrian national, was born in 1950 and lives in Vienna. 7. 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. 8. On 25 April 1989 Mr Petrovic claimed a parental leave allowance (Karenzurlaubsgeld). 9. 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. 10. 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. 11. 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). 12. 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. 13. 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). 14. Under section 26(1) of the Unemployment Benefit Act 1977, mothers were entitled to a parental leave allowance provided that, following the birth of their child, they took up to one year’s parental leave and were eligible for maternity benefit (Wochengeld – a welfare allowance payable to working mothers for a period of eight weeks after the birth). 15. That section was amended by a federal law of 12 December 1989 (Official Gazette no. 651/1989), which came into force on 1 January 1990. It is now provided that a father may claim a parental leave allowance if he is in employment, has primary responsibility for looking after the child and the child lives under the same roof. In addition, the mother must either be entitled to parental leave as a result of the birth and have waived that right in whole or in part or, if not entitled to parental leave, be prevented by her work from looking after the child. However, the new rules apply only in respect of children born after 31 December 1989 and therefore do not cover the applicant, whose child was born on 27 February 1989.