Consider Schmidt v. Germany, 291-B Eur. Ct. H.R. (ser. A) (1994)

Consider Schmidt v. Germany, 291-B Eur. Ct. H.R. (ser. A) (1994). A German law required all male residents – but not female residents – of Tettnang, Germany, to either volunteer to work for the firemen or to pay a fee in contribution to the firemen. The male applicant challenged the fire-service levy as unlawful gender discrimination in violation of Article 14, ECHR. Howerver, Article 4(3)(d), ECHR, allows an exception to the prohibition against compulsory labor for normal civic obligations to ECHR states parties. The compulsory fire service in Schmidt’s town fell within this exception. The alternative financial contribution was considered a “compensatory charge” and because of its close links with the obligation to serve, also fell within the scope of Article 4(3)(d). The European Court stated that very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the grounds of sex as compatible with the Convention. Schmidt argued that the state interest in protecting women could not in itself justify a difference of treatment in this context. He pointed out that a more proportionate means for protecting women would be to take the biological differences between the sexes into account by a sensible division of the various tasks performed in the fire brigade. He also pointed out that as of 1992, close to seventy thousand women had served in fire brigades in Germany, and in his own town, the fire brigades had accepted women since 1978. Finally, Schmidt contended that since no man had ever been required to serve on the brigade, the regulation was really a purely fiscal one that women were as capable of complying with as men. This last claim is what ultimately swayed the European Court to decide the regulation was unlawful discrimination. The European Court did not rule on whether there existed any justification for treating men and women differently in regard to compulsory service in the fire brigade. The Court pointed out that this issue was not decisive in the present case in light of the continuing existence of a sufficient number of volunteers. No one had ever been obliged to serve in a fire brigade. Instead, the financial contribution had become effectively the only actual duty required by the Fire Brigades Act. In the imposition of such a financial burden, a difference of treatment on the ground of sex could “hardly be justified.” Accordingly, the European Court found there had been a violation of Article 14 taken in conjunction with Article 4(3)(d) of the Convention.