CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1994

.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. 20769/92                       by Gabriele FORSTER                       against Germany                             ------------------         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 August 1992 by Gabriele Forster against Germany and registered on 6 October 1992 under file No. 20769/92;         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, born out of wedlock in 1980, and living in Berg/Germany. She is a pupil. Before the Commission, she is represented by Mr. K. Brunnhuber, a lawyer practising in Wolfratshausen.         The facts, as they have been submitted by the applicant, may be summarised as follows.         On 15 July 1988 the applicant's father, a monk from the Benedictine Order in Schäftlarn and priest since 1959 who was working as teacher and as headmaster of a secondary school run under the responsibility of the Order, admitted paternity to the applicant and a further child, born in 1977. He also accepted liability for maintenance payments, inter alia as regards the preceding eight years, i.e. in respect of the applicant a sum of about DEM 35,000, and the execution of these sums (sofortige Zwangsvollstreckung). In June 1989 he married the applicant's mother, a teacher by profession. He was then expelled from the Order.         On 8 August 1989 the applicant instituted proceedings before the Munich I Regional Court (Landgericht) against her father's former Order under the Debtors (Voidable Transactions) Act (Gesetz betreffend die Anfechtung von Rechtshandlungen eines Schuldners außerhalb des Konkursverfahrens), claiming money to cover the above mentioned maintenance claims for the past. She submitted that her father's work as teacher and as headmaster of the said secondary school had been gratuitous services of a value of at least DEM 10,000 per month. These services could be challenged, like a donation, under S. 3 para. 1 (3) of the Debtors (Voidable Transactions) Act.         The Debtors (Voidable Transactions) Act entitles a creditor, outside bankruptcy proceedings, to challenge the validity of legal dispositions taken by his debtor, as listed in SS. 3 et seq. of the said Act, in order to secure the settlement of his payable and enforceable debts. According to S. 3 para. 1 (3), a creditor is entitled to challenge the validity of donations (unentgeltliche Verfügungen) made by the debtor in the course of the preceding year, unless a usual or traditional gift is concerned. S. 7 provides that the creditor, in order to secure the payment of the debts concerned, may claim that the assets given away on the basis of the challenged dispositions are returned.         On 4 May 1990 the Munich I Regional Court dismissed the applicant's action. The Regional Court found that the applicant had no claim against the Order under the relevant provisions of the Debtors (Voidable Transactions) Act, as her father had not made any dispositions to the advantage of the Order which she could challenge under the said Act. The Regional Court considered in particular that the services rendered by her father as teacher did not amount to a donation of salary which the Order ought to have paid to him. According to canonical law, her father, as a monk, had committed himself to poverty and had not been entitled to acquire personal assets. He had not entered into an employment contract with the Order within the meaning of the civil law, but had performed gratuitous work within the Order without thereby acquiring salary claims. He had, therefore, not been in a position to make donations to the advantage of the Order, which could be challenged by the applicant under the Debtors (Voidable Transactions) Act. The gratuitous services could, as such, not be challenged under the Debtors (Voidable Transactions) Act.         On 27 February 1991 the Munich Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal (Berufung). The Court of Appeal, confirming the findings of the Regional Court, also emphasized that a monk's work, like charitable work, is usually not remunerated.         On 21 January 1992 the Federal Constitutional Court (Bundes- verfassungsgericht) declined to entertain the applicant's constitutional complaint (Verfassungsbeschwerde), alleging discrimination and a violation of the right for protection of the marriage and the family. The Constitutional Court found that her complaint had no sufficient prospects of success. The Constitutional Court noted that the Courts had given detailed reasons that the applicant's father, appertaining to an Order, had never acquired any salary rights for his work which he could have subsequently disposed of and that gratuitous work could not as such be challenged under the Debtors (Voidable Transactions) Act. These considerations did not appear as arbitrary and could not be otherwise objected to under constitutional law. In particular, it was mainly for the parents to fulfil their obligation to provide maintenance towards their children. The State was not obliged to ensure, in such particular circumstances as in the present case, the settlement of maintenance claims in bringing actions against an Order. The decision was served on 6 February 1992.   COMPLAINTS         The applicant complains that the German courts dismissed her action against her father's former Order, claiming money to cover her maintenance claims. She considers to be discriminated against other children born out of wedlock and invokes Article 14, read in conjunction with Articles 2, 8 and 12, of the Convention.   THE LAW         The applicant complains that she was a victim of discrimination in breach of Article 14, taken in conjunction with Articles 2, 8 and 12 (Art. 14+2+8+12), of the Convention. She submits that the Munich I Regional Court's judgment, as confirmed upon appeal, prevented her from enforcing her maintenance claims because her father had previously appertained to the Benedictine Order.         The Commission recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by those provisions. There can be no room for application of Article 14 (Art. 14) unless the facts of the case fall within the ambit of one or more of such provisions (Eur. Court H.R., Inze judgment of 28 October 1987, Series A No. 126, p. 17, para. 36).         To the extent that the applicant relies on Article 8 (Art. 8), the Commission recalls that Article 8 makes no difference between the "legitimate" and the "illegitimate" family, and that family life also comprises interests of a material kind (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A No. 31, p. 14, para. 31, pp. 23-24, para. 52). In the present case, the applicant's father had admitted paternity to the applicant, accepted liability for maintenance claims and the execution of the outstanding sums. The court decisions complained about concerned the question whether the applicant could obtain payment for these maintenance claims from a third person, namely the Benedictine Order to which her father had previously appertained as a priest. Article 8 (Art. 8) is, therefore, not relevant in the present circumstances. Moreover, no issues arise under Articles 2 and 12 (Art. 2, 12).         The Commission considers that the relevant facts forming the substance of the applicant's complaint about discrimination relate to the possibilities of enforcing her maintenance claims and may be taken into account under Article 1 of Protocol No. 1 (P1-1).         Article 14 (Art. 14) safeguards individuals, placed in similar situations, from discrimination in the enjoyment of the rights and freedoms set forth in the Convention and its Protocols. A distinction is discriminatory if it "has no objective and reasonable justification" (Eur. Court H.R., Marckx judgment, loc. cit., pp. 15-16, paras. 32-33).         In the present case, the applicant instituted court proceedings against her father's former Order under the Debtors (Voidable Transactions) Act, claiming money to cover her maintenance claims, which had not been settled by her father. The Munich I Regional Court, in its decision of 4 May 1990, dismissed this action on the ground that her father had not made any dispositions to the advantage of the Order which she could challenge under the said Act. As a monk, he had performed a gratuitous work at the Order's secondary school and not acquired salary claims. This decision was confirmed upon appeal by the Munich Court of Appeal, and, following the applicant's constitutional complaint, by the Federal Constitutional Court. The Constitutional Court considered in particular that the lower Courts' detailed reasoning that the applicant's father, appertaining to an Order, had never acquired any salary rights for his work which he could have subsequently disposed of and that gratuitous work could not as such be challenged under the Debtors (Voidable Transactions) Act did not appear as arbitrary. Moreover, it was not for the State to ensure, in such particular circumstances as in the present case, the settlement of maintenance claims in bringing actions against an Order.         The Commission considers that the applicant, following her father's acceptance of paternity and liability to pay maintenance, was entitled to maintenance claims against her father like other children born out of wedlock. The court decisions complained about concerned the inapplicability of the Debtors (Voidable Transactions) Act to the gratuitous work of her father as (former) monk within an Order. There is no indication that the German Courts subjected the applicant to a different treatment on the ground of her birth as daughter of a (former) monk, as compared to other children born out of wedlock had they lodged claims under the said Act against third persons to obtain payment in respect of a parent's gratuitous work.         It follows that there is no appearance of a violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1). Consequently, the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)