Petrovic v. Austria (156/1996/775/976) 27 March 1998: refusal to grant parental leave allowance to a father, on ground that allowance was only available to mothers

Austria – authorities’ refusal to grant parental leave allowance to a father, on ground that allowance was only available to mothers (section 26(1) of Unemployment Benefit Act 1977)

Article 14 of the convention taken together with Article 8

A. Applicability
Recapitulation of Court’s case-law – allowance paid by State was intended to promote family life and necessarily affected way in which latter was organised – allowance enabled States to demonstrate their respect for family life and therefore came within scope of Article 8.

Conclusion: Article 14 taken together with Article 8 applicable.

B. Compliance
Recapitulation of Court’s case-law – existence of difference in treatment on grounds of sex and mother and father similarly placed as far as taking care of child concerned – Contracting States enjoyed a certain margin of appreciation, whose scope varied according to circumstances, subject-matter and background – in that respect, one of the relevant factors might be the existence or non-existence of common ground between laws of Contracting States – no common standard in that field at material time, as majority of Contracting States had not provided for parental leave allowances to be paid to fathers – gradual introduction by Austrian legislature of legislation which was very progressive in Europe – there still remained very great disparity between legal systems of Contracting States in that field – Austrian authorities’ refusal to grant applicant parental leave allowance had not, therefore, exceeded margin of appreciation allowed to them.

Conclusion: no violation of Article 14 taken together with Article 8 (seven votes to two).

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