Maximilian ROMMELFANGER v Federal Republic of Germany [1989] ECHR 27 (6 September 1989)

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AS TO THE ADMISSIBILITY OF Applciation No. 12242/86 by Maximilian ROMMELFANGER against the Federal Republic of Germany The European Commission of Human Rights sitting in private on 6 September 1989, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL F. ERMACORA A.S. GÖZÜBÜYÜK J.-C. SOYER H. DANELIUS G. BATLINER H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL Mr. C.L. ROZAKIS Mrs. J. LIDDY Mr. L. LOUCAIDES Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 20 June 1986 by Maximilian Rommelfanger against the Federal Republic of Germany and registered on 26 June 1986 under file No. 12242/86; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having regard to: - the Commission's decision of 2 May 1988 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits; - the observations submitted by the respondent Government on 15 August 1988 and the observations in reply submitted by the applicant on 17 October 1988; - the parties' submissions at the oral hearing on 6 September 1989; Having deliberated; Decides as follows: THE FACTS The facts as agreed by the parties may be summarised as follows. The applicant, a German citizen born in 1950, is a physician. He is represented by Professor Wolfgang Däubler of the University of Bremen. As from 1 February 1979 the applicant was employed as an assistant physician in the hospital of a Roman Catholic foundation (kirchliche Stiftung) in Essen. The hospital provides medical care for the public in general without distinction of faith. About 80% of its staff of 630 employees, including 60 physicians, are Roman Catholics. Most of the remaining employees belong to other churches. The position of the Roman Catholic church under constitutional law in the Federal Republic of Germany is governed by Article 140 of the Basic Law (Grundgesetz) read in conjunction with the Weimar Constitution of 11 August 1919. Article 140 of the Basic Law provides: "The provisions of Articles 136, 137, 138, 139 and 141 of the German Constitution of 11 August 1919 shall be an integral part of this Basic Law." Article 137 of the Weimar Constitution provides: "(1) There shall be no state church. (2) Freedom of association to form religious bodies is guaranteed. The union of religious bodies within the territory of the Reich shall not be subject to any restrictions. (3) Every religious body shall regulate and administer its affairs independently within the limits of the law valid for all. It shall confer its offices without the participation of the state or the civil community. (4) Religious bodies shall acquire legal capacity according to the general provisions of civil law. (5) Religious bodies shall remain corporate bodies under public law in so far as they have been such heretofore. ..." The applicant's contract contained a clause according to which the employment relationship was to be governed by the guidelines issued by the umbrella organisation of Catholic charities in Germany (Richtlinien für Arbeitsverträge in den Einrichtungen des Deutschen Caritas-Verbandes). Rule 1 of these guidelines refers to the duties which flow from charity (Caritas) as an essential expression of christian life. The employees are required to perform their services in loyalty and to show a behaviour inside and outside their professional functions which, as a whole, corresponds to the responsibility which they have accepted. It is presupposed that in performing their professional duties they will be guided by christian principles. Rule 16 further stipulates that both parties may terminate the contract for important reasons without complying with the period of notice. Important reasons are, in particular, "breaches of loyalty or gross violations of due respect towards members of the Caritas organisation, leading persons or essential institutions of the Catholic church, serious offences against moral principles of the church or against State law, or other gross violations of professional duties under these guidelines". The guidelines are generally used in employment contracts of Catholic institutions. In September 1979 the applicant, together with some fifty persons including another physician of the same hospital, signed a letter to the editor of the weekly magazine "Stern" which was published in October under the headline "Physicians versus physicians' representatives" ("Ärzte gegen Ärztefunktionäre"). It contained criticism of the attitude of leading personalities in the medical professional organisations concerning the abortion legislation introduced in 1976. In its current version Section 218a of the Criminal Code (Strafgesetzbuch) provides that an abortion performed by a doctor shall not be punishable if it is carried out with the consent of the pregnant woman not later than twelve weeks after conception and if it is indicated according to medical opinion "in order to avert the danger of a distress which a) is so serious that the pregnant woman cannot be required to continue the pregnancy, and b) cannot be averted in any other way she can reasonably be expected to bear". The letter to the editor was couched in the following words: (German) "Wir wehren uns mit diesem Aufruf besonders gegen die Angriffe, die von klerikal-konservativer und standesärztlicher Seite gegen die Praxis des der- zeitigen Paragraphen 218 geführt werden. So ver- glich Dr. Holzgartner, CSU-Funktionär und Vorstands- mitglied der Bayrischen Ärztekammer, den legalen Schwangerschaftsabbruch mit den Massenmorden der Nazis in Auschwitz. Dr. Karsten Vilmar, Präsident der Bundesärztekammer, wollte sogar bestreiten, dass es in einem so reichen Staat wie der BRD eine Not- wendigkeit zum Schwangerschaftsabbruch aus sozialer Notlage geben könne. Wir sehen unsere Position zum Abtreibungsparagraphen 218 nicht durch die inhumanen Äusserungen des Präsidenten der Bundesärztekammer vertreten und distanzieren uns von diesen und ähnlichen Versuchen, eine notwendige und sinnvolle Entwicklung zu hemmen. Wir kennen aus eigener beruflicher Praxis die z.T. unlösbaren Schwierigkeiten von Frauen in unserem Land, die ungewollt schwanger geworden sind." (English translation) "By this proclamation we wish to express disapproval, in particular, of the attacks made by clerical conserva- tive circles and representatives of the medical profession against the practice under the current Section 218. Thus Dr. Holzgartner, a functionary of the CSU and member of the board of the Bavarian Medical Association, compared legal abortions with Nazi mass murders in Auschwitz. Dr. Karsten Vilmar, the President of the Federal Medical Association, even ventured to deny the necessity of any abortion caused by a situation of social distress in such a rich state as the Federal Republic of Germany. We consider that our views concerning the abortion legislation in Section 218 are not represented by these inhuman statements of the President of the Federal Medical Association and we do not wish to be associated with this and similar attempts to put a brake on a necessary and reasonable development. From our own professional experience we know the partly unresolvable difficulties of women in our country who have become pregnant against their will." On 13 February 1980 the applicant's employer gave him notice of the termination of his employment contract as from 31 March 1980. The only reason invoked was his having signed the above letter to the editor. This was seen as a violation of the duties under his employment contract as the views expressed therein were diametrically opposed to the opinion of the church concerning the killing of unborn human beings and as he had deliberately published these views in a magazine with a very wide circulation. On 11 March 1980 the applicant and his colleague of the same hospital, who had also been dismissed, gave a television interview in which they were, inter alia, asked about the consequences which they drew from the dismissal. The applicant replied that the first consequence was not to depart from the views expressed earlier which referred to the position of Section 218 and approved it. The applicant's colleague declared that another consequence was to take the case to the courts as they had only expressed support for the existing legislation. At this interview, the applicant and his colleague did not repeat the contents of the above letter to the editor which was summarised by the moderator. As a consequence of this interview, the applicant's employer, on 20 March 1980, again gave notice of dismissal to the applicant with effect from 31 March 1980 or subsidiarily 30 June 1980. The reason stated was that in the above television interview he had defended views on Section 218 of the Penal Code before a wide audience which, as he must have known, were unacceptable for his employer as a Catholic hospital. The applicant challenged both dismissals before the competent labour courts which conducted two separate proceedings. I. In the case concerning the dismissal of 13 February 1980, the Labour Court (Arbeitsgericht) of Essen allowed the applicant's action on 15 April 1980, holding that his dismissal was "manifestly invalid". The applicant had acted outside his professional functions when he signed the letter to the editor. The employer's appeal (Berufung) was rejected by the Regional Labour Court (Landesarbeitsgericht) of Düsseldorf on 8 September 1980. It considered that the principle of church autonomy, as guaranteed by Article 140 of Basic Law read in conjunction with Article 137 para. 3 of the Weimar Constitution, required that the rules enunciated by the church should also be taken into account as regards employment relationships. The applicant was not allowed to speak in public against the views of the Catholic church concerning the inviolability of unborn human life, and his freedom of expression was restricted in this respect. However, the termination of the contract was disproportionate. The applicant's interest to keep his job as a trainee specialist had priority: his error concerning the lawfulness of his statement was excusable, his statement was not directed against the employer but against representatives of the medical profession; it had been formulated by other people without the applicant having influenced the wording; finally, it contained no reference to the applicant's employment and therefore only very few readers knew that he was employed by a Catholic hospital. Because of the fundamental importance of the case, the employer was granted leave to appeal on a point of law (Revision) to the Federal Labour Court (Bundesarbeitsgericht). However, the employer's appeal was rejected by that Court on 21 October 1982. Generally, the Federal Labour Court followed the reasoning of the Regional Labour Court. All church-employed physicians were required not to speak out publicly against the views of the Catholic church concerning the inviolability of unborn human life. This duty did not violate the freedom of expression which had to be weighed against the church autonomy which was also protected by the constitution. In view of the importance which the church attributed to the protection of unborn life it was not inappropriate to require a physician to refrain from any public statement contradicting the basic attitude of the church in this area. Nevertheless, the applicant's dismissal was socially unjustified because the church autonomy did not require sanctioning each and every breach of loyalty of some weight by a dismissal without taking into account the circumstances of the particular case. II. The proceedings concerning the second dismissal generally followed those concerning the first dismissal. By judgment of 21 May 1980 the Labour Court of Essen held that also the second dismissal was socially unjustified. It was wrong to see a new violation of the applicant's duties in the fact that he had merely confirmed the views previously expressed. On 3 October 1980 the Regional Labour Court confirmed this decision. It considered that the television interview involved a new breach of loyalty, but that it was justified by important interests which the applicant pursued. This latter decision was confirmed by the Federal Labour Court on 21 October 1982. III. The employer lodged constitutional complaints (Verfassungs- beschwerden) in both cases, invoking the fundamental right of freedom of religion under Article 4 para. 2 of the Basic Law and the right of church autonomy under Article 140 of the Basic Law read in conjunction with Article 137 para. 3 of the Weimar Constitution. The employer challenged, in particular, the Federal Labour Court's view that the degree of loyalty of church employees differs according to the measure in which they participate in the specific religious functions of the church. The Federal Constitutional Court (Bundesverfassungsgericht) dealt with the complaints in joint proceedings and allowed them by a decision of 4 June 1985. It confirmed the view of the Federal Labour Court that the constitutional guarantee of church autonomy was applicable not only to the recognised churches as such but also to institutions affiliated to them which in the understanding of the church fulfilled religious functions. In the view of the Catholic church religious practice was not limited to the area of faith and worship but also comprised charitable activities. Accordingly, it was an internal matter of the church to lay down the organisation and administration of its charitable institutions. The constitutional right of church autonomy included all measures required for performing the charitable functions in compliance with the views of the church. The churches were free to decide which services they wished to provide by institutions of their own and which legal form these activities should take. They could create employment relationships in the exercise of their private autonomy. If they chose the form of normal employment contracts they were subjected to the labour law of the State. However, the applicability of labour law did not remove these employment relationships from the sphere of internal matters of the church. Therefore it was possible to impose contractual obligations on a person working for the church, requiring him to lead his life in conformity with the doctrines of the church. By imposing such duties of loyalty, the ecclesiastical employer exercised his freedom of contract, and at the same time his constitutional right of church autonomy. Only in this way was it possible for the churches to organise their activities within the limits of the laws of general application and yet according to their own views. The churches were entitled to organise their activities on the basis of the particular idea that all of their employees constituted a christian community even if their activities were carried out on the basis of employment contracts. Furthermore, the church was entitled to impose on its employees the observance of at least the main principles of the dogmatic and moral teachings of the church in the interest of the credibility of a church. The Federal Constitutional Court recognised that church autonomy was limited. The right of the churches to administer their own internal affairs was guaranteed only within the limits of the generally applicable laws. As the churches were, however, free by virtue of their autonomy to organise their activities on the basis of the idea of a christian community and corresponding duties, it was a constitutional requirement to take this idea into account also when applying the law on protection against dismissals. Therefore, it was, in principle, left to the church to lay down with binding effect what was necessary for the credibility of the church and of its doctrine, what were the specific tasks of the church, what was closely related to these tasks, what were the essential principles of faith and morals and what was to be regarded as a breach or a serious breach of these principles. The views of the church were binding unless they were in conflict with fundamental principles of the legal system, such as the prohibition of arbitrariness (Article 3 para. 1 of the Basic Law) or the requirement of compliance with moral principles (gute Sitten, Section 138 para. 1 of the Civil Code) or with the ordre public (Article 30 of the Introductory Act to the Civil Code). The Federal Constitutional Court then examined whether in the labour court proceedings the above constitutional principles had been complied with. It found that in the weighing of interests the Federal Labour Court had not sufficiently taken into account the principle of church autonomy. According to ecclesiastical law, the killing of an unborn human being was a serious crime which attracted the sanction of automatic excommunication according to the Codex Juris Canonici Canones 2257 para. 1 and 2350 para. 1. This doctrine had existed in the church since the first centuries and had been confirmed by the second Vatican Council. Under constitutional law it was these views of the church which must constitute the basis for judging the applicant's breach of loyalty. On 15 January 1986 the Federal Labour Court thereupon rejected the applicant's actions against his first and second dismissal, following the reasoning of the Federal Constitutional Court in conformity with Section 31 of the Federal Constitutional Court Act. The applicant's dismissal with effect from 31 March 1980 thus became finally valid. In the meanwhile he had been offered a post in a Catholic hospital in Duisburg as from 1 September 1985. The offer was withdrawn following the judgment of 15 January 1986. As a consequence the applicant remained unemployed for a month. He is now working in a non-Catholic hospital. COMPLAINT The applicant alleges a violation of his right to freedom of expression as guaranteed by Article 10 of the Convention. PROCEEDINGS The application was introduced on 20 June and registered on 26 June 1986. On 2 May 1988 the Commission decided that, in accordance with Rule 42 para. 2 (b) of the Commission's Rules of Procedure, notice should be given to the respondent Government of the application and that they should be invited to submit written observations on the admissibility and merits before 15 July 1988. On 6 July 1988 the President acceded to a request by the Government to extend this time-limit until 18 August 1988. The Government submitted their observations on 15 August 1988 and the applicant submitted observations in reply on 17 October 1988. On 10 March 1989 the Commission decided to invite the parties, in accordance with Rule 42 para. 3 (b) of the Rules of Procedure, to submit further observations orally at a hearing. The hearing took place on 6 September 1989. The parties were represented as follows: The Government by their Agent, Ministerialdirigent Dr. Jens Meyer-Ladewig from the Federal Ministry of Justice, who was assisted by Professor Dr. Wolfgang Rüfner from the University of Cologne, Adviser; The applicant by his counsel, Professor Dr. Wolfgang Däubler of the University of Bremen, who was assisted by Mr. Hubert Schmalz from the Union of Public Services, Transport and Communication Workers, Adviser. THE LAW The applicant alleges a violation of his right to freedom of expression as guaranteed by Article 10 (Art. 10) of the Convention which reads as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." The applicant claims that the State is responsible for an interference with his right to freedom of expression as, following his dismissal by a Catholic foundation because he had expressed a particular opinion, the Federal Constitutional Court, adopting an unreasonably wide interpretation of church autonomy, failed to protect him. The constitutional norms applied did not provide a sufficiently precise, and foreseeable, legal basis for the restriction of his freedom of expression which, moreover, was disproportionate and not necessary in a democratic society for any of the purposes recognised in Article 10 para. 2 (Art. 10-2). The Government deny that there has been any direct interference by the State with the applicant's freedom of expression. The limitation of this freedom resulted from the applicant's employment contract with a church institution in which he waived this freedom as regards statements contrary to his duty of loyalty. The applicant could freely express his views concerning abortion, but he had no right to do so while being employed in a Catholic hospital where he had assumed special duties and responsibilities. According to the Government the State was not required to protect him vis-à-vis the employer beyond ensuring that the latter did not make unreasonable demands on him. In this respect it was appropriate for the State to adopt a restrictive approach having regard to the church's right to regulate its internal affairs which is recognised not only in German constitutional law, but also in Article 9 (Art. 9) of the Convention. The legal basis for the restriction of the applicant's freedom of expression was sufficiently concrete and foreseeable. The restriction was also proportionate, having regard in particular to the applicant's special duties as a physician employed in a Catholic hospital and the State's wide margin of appreciation. The Commission must first determine whether in the circumstances of the case the applicant is entitled to invoke his freedom of expression under Article 10 (Art. 10). The Government claim that he is debarred from doing so because he waived this freedom by assuming certain duties of loyalty towards the Catholic church in his employment contract. The Commission finds no basis for the assumption that the applicant waived his freedom of expression as such. That he accepted the status of a doctor employed by a Catholic hospital could not deprive him of the protection afforded by Article 10 (Art. 10). However, Article 10 (Art. 10) can only be violated if there has been a State interference with the applicant's rights under this provision. Unlike the situation in the Kosiek and Glasenapp cases (cf. Eur. Court H.R. judgments of 28 August 1986, Series A nos. 104 and 105) the dismissal on the ground of the expression of certain opinions was not pronounced by a State authority. The applicant was dismissed by a private employer. The fact that this was a Catholic foundation and that in German law the Catholic church is regarded as a corporation of public law does not make the dismissal an act of the State. Under the Convention the State cannot be held responsible for acts of the Catholic church or its institutions which must be regarded as non-governmental organisations within the meaning of Article 25 (Art. 25) of the Convention. There is thus no question of a direct State interference with the applicant's freedom of expression by his dismissal. The applicant claims that there has been an indirect State interference in that the German courts failed to protect his freedom of expression against the sanction of dismissal. The Government submit that the courts were not required to protect the applicant as he had accepted limitations of his freedom of expression in his employment contract. The Commission notes that by entering into contractual obligations vis-à-vis his employer the applicant accepted a duty of loyalty towards the Catholic church which limited his freedom of expression to a certain extent. Similar obligations may also be agreed with other employers than the Catholic church or its institutions. In principle, the Convention permits contractual obligations of this kind if they are freely entered into by the person concerned. A violation of such obligations normally entails the legal consequences stipulated in the contract, including dismissal. Their enforcement with the assistance of the competent State authorities does not as such constitute an "interference by public authority" with the rights guaranteed by Article 10 para. 1 (Art. 10-1) of the Convention (cf. Application No. 11142/84, Carrillo and Burgoa v. Spain, Dec. 3.12.86, to be published in D.R.). It is true that under Article 1 (Art. 1) of the Convention the State is required to "secure" the Convention rights to everyone within its jurisdiction. In certain cases it may therefore be necessary for the State to take positive action with a view to effectively securing these rights (cf. Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, p. 15 para. 31; judgment of X and Y v. the Netherlands of 26 March 1985, Series A no. 91, p. 11 para. 23; Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 33 para. 67; Plattform "Ärzte für das Leben" judgment of 21 June 1988, Series A no. 139, p. 12 para. 32). In the case of Young, James and Webster it was held that a positive obligation could arise for the State to provide protection against dismissals pronounced because the applicants had refused to join particular trade unions. The compulsion to do so, under sanction of dismissal, was seen as an interference with their right to freedom of association under Article 11 (Art. 11) of the Convention (Eur. Court H.R., judgment of 13 August 1981, Series A no. 44, p. 23 para. 55), and the State's responsibility was seen as being engaged by the enactment of legislation which made this treatment of the applicants lawful and thus failed to secure them their rights under Article 11 (Art. 11) (ibid. p. 20 para. 49). The Commission has examined whether in the present case a similar obligation existed for the State to secure the applicant's right to freedom of expression against the measure of dismissal taken by his employer. The normal Labour Court procedure was available to the applicant and the competent courts were required to weigh the applicant's interests, including his interest in freedom of expression, against those of his employer. It is true that particular weight was finally given to the views of the church concerning the duties of loyalty of church employees. According to the Federal Constitutional Court this was necessary in order to safeguard the constitutional right of the church to regulate its internal affairs. Nevertheless the Federal Constitutional Court held that there were limits to the right of the church to impose its views on its employees. In particular the State courts were competent to ensure that no unreasonable demands of loyalty were made. The requirement to refrain from making statements on abortion in conflict with the church's views was not seen as an unreasonable demand because of the crucial importance of this issue for the church. In the case of a doctor employed in a Catholic hospital it was also relevant that the church regards the exercise of charitable functions as one of its essential tasks. The Commission is satisfied that German law, as interpreted by the Federal Constitutional Court, takes account of the necessity to secure an employee's freedom of expression against unreasonable demands of his employer, even if they should result from a valid employment contract. If, as in the present case, the employer is an organisation based on certain convictions and value judgments which it considers as essential for the performance of its functions in society, it is in fact in line with the requirements of the Convention to give appropriate scope also to the freedom of expression of the employer. An employer of this kind would not be able to effectively exercise this freedom without imposing certain duties of loyalty on its employees. As regards employers such as the Catholic foundation which employed the applicant in its hospital, the law in any event ensures that there is a reasonable relationship between the measures affecting freedom of expression and the nature of the employment as well as the importance of the issue for the employer. In this way it protects an employee against compulsion in matters of freedom of expression which would strike at the very substance of this freedom (cf. a contrario Young, James and Webster judgment, loc. cit., p. 23 para. 55). The Commission considers that Article 10 (Art. 10) of the Convention does not, in cases like the present one, impose a positive obligation on the State to provide protection beyond this standard. It follows that there has been no State interference with the applicant's right to freedom of expression as guaranteed in Article 10 para. 1 (Art. 10-1) of the Convention, nor a failure to comply with positive obligations resulting from this provision. The applicant's complaint must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)

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You are here: BAILII >> Databases >> European Court of Human Rights >> Maximilian ROMMELFANGER v Federal Republic of Germany [1989] ECHR 27 (6 September 1989) URL: http://www.bailii.org/eu/cases/ECHR/1989/27.html Cite as: (1989) 62 D & R 151, 62 D & R 151, [1989] ECHR 27

European Court of Human Rights