CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 15688/89                       by Meta LIPSKI                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 3 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 31 August 1989 by Meta Lipski against the Federal Republic of Germany and registered on 25 October 1989 under file No. 15688/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a German citizen, living in Gelsenkirchen. She is represented by Mr.   M. Stolz, a lawyer in Gelsenkirchen.           On 26 October 1985 the applicant brought an action before the comptent Labour Court (Arbeitsgericht) in Gelsenkirchen against her employer, a catholic community in charge of a hospital where she is working as an assistant nurse.   Being a widow having to care for her two children born in 1963 and 1965 she claimed a paid day off work each month in order to work in her household.           This claim was based on Section 1 of a 1948 Act of Northrhine- Westphalia containing holiday regulations for women with a household, hereinafter referred to as 1948 Act (Gesetz über Freizeitgewährung für Frauen mit eigenem Hausstand).   It appears that the Federal Labour Court (Bundesarbeitsgericht) decided in 1962 that Section 1 of this Act applied not only to married women but also to women who no longer lived with the partner but had their own household.   However, the Federal Constitutional Court (Bundesverfassungsgericht) decided on 13 November 1979 that the Section was incompatible with the principle of equality before the law as guaranteed by Article 3 (2) of the Basic Law (Grundgesetz) insofar as it guaranteed a free household-day to female but not to male singles.           As a consequence of the Federal Constitutional Court's decision of 13 November 1979 the Federal Labour Court held on 26 January 1982 that neither single men nor single women could derive any rights from Section 1 of the 1948 Act as the Section was unconstitutional.   According to the Federal Labour Court proceedings relating to claims raised under this provision therefore had to be adjourned pending a legislative amendment to the 1948 Act.           Following this jurisprudence the Gelsenkirchen Labour Court decided on 4 March 1986 to adjourn the examination of the applicant's case.   The applicant's appeal (Beschwerde) against this decision was rejected by the Regional Labour Court (Landesarbeitsgericht) in Hamm on 19 June 1986.   The Regional Court stated in agreement with the Federal Labour Court that no ordinary court could apply a statutory provision that had been declared unconstitutional.   It was exclusively for the legislator to draw the consequences of this unconstitutionality.           Different solutions were available to the legislator, inter alia, it could be decided to abolish the regulation in question altogether.   The ordinary courts therefore had to wait for a solution which would eventually be adopted by the legislator.           The applicant then lodged a constitutional complaint (Verfassungsbeschwerde) which is still pending before the Federal Constitutional Court.   The Court informed her by letter of 31 March 1989 that, for the time being, no indication could be made as to when a decision would be taken in her case.   COMPLAINTS           The applicant submits that Section 1 of the 1948 Act is still in force and applicable to married women.   She therefore considers that as a single she has a right to be treated equally and to claim a paid household day.   Consequently, she considers that her labour court action related to a civil right.   She complains under Article 6 para. 1 of the Convention of the length of proceedings.   THE LAW           The applicant invokes the right to obtain a final decision within a reasonable time as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.           However, this provision extends only to disputes over civil rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law (Eur. Court H.R., Lithgow and others judgment of 8 July 1986, Series A, p. 70 para. 192).           The labour court proceedings complained of relate to a claim based on Section 1 of an Act of 1948 which has been declared unconstitutional by the Federal Constitutional Court insofar as this provision had been interpreted by the labour courts as granting a free household-day not only to married women but also to female singles with a household.   According to the German courts this provision is therefore inapplicable to female singles and it is considered the task of the German legislator to draw the consequences of the said Constitutional Court's decision.           In these circumstances the applicant does not, for the time being, have an arguable claim to a free household-day and Article 6 para. 1 (Art. 6-1) is therefore not applicable to the proceedings in question.           It follows that the application is incompatible ratione materiae with the provisions of the Convention and has to be rejected in accordance with Article 27 para. 2 (Art. 27-2).           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                                (C.A. NØRGAARD)