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 privateon 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 theProtection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 June 1986by Maximilian Rommelfanger against the Federal Republic of Germanyand registered on 26 June 1986 under file No. 12242/86;         Having regard to the report provided for in Rule 40 of theRules 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 ofBremen.         As from 1 February 1979 the applicant was employed as anassistant physician in the hospital of a Roman Catholic foundation(kirchliche Stiftung) in Essen.  The hospital provides medicalcare 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 toother churches.         The position of the Roman Catholic church under constitutionallaw in the Federal Republic of Germany is governed by Article 140 ofthe Basic Law (Grundgesetz) read in conjunction with the WeimarConstitution 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 towhich the employment relationship was to be governed by the guidelinesissued by the umbrella organisation of Catholic charities in Germany(Richtlinien für Arbeitsverträge in den Einrichtungen des DeutschenCaritas-Verbandes).  Rule 1 of these guidelines refers to the dutieswhich flow from charity (Caritas) as an essential expression of christian life.  The employees are required to perform their servicesin loyalty and to show a behaviour inside and outside their professionalfunctions which, as a whole, corresponds to the responsibility whichthey have accepted.  It is presupposed that in performing theirprofessional duties they will be guided by christian principles.Rule 16 further stipulates that both parties may terminate thecontract for important reasons without complying with the period ofnotice.  Important reasons are, in particular, "breaches of loyalty orgross violations of due respect towards members of the Caritasorganisation, leading persons or essential institutions of theCatholic church, serious offences against moral principles of thechurch or against State law, or other gross violations of professionalduties under these guidelines".  The guidelines are generally used inemployment contracts of Catholic institutions.         In September 1979 the applicant, together with some fiftypersons including another physician of the same hospital, signed aletter to the editor of the weekly magazine "Stern" which waspublished in October under the headline "Physicians versus physicians'representatives" ("Ärzte gegen Ärztefunktionäre").  It containedcriticism of the attitude of leading personalities in the medicalprofessional organisations concerning the abortion legislationintroduced in 1976.  In its current version Section 218a of theCriminal Code (Strafgesetzbuch) provides that an abortion performedby a doctor shall not be punishable if it is carried out with theconsent of the pregnant woman not later than twelve weeks afterconception and if it is indicated according to medical opinion "inorder 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 noticeof the termination of his employment contract as from 31 March 1980.The only reason invoked was his having signed the above letter to theeditor.  This was seen as a violation of the duties under hisemployment contract as the views expressed therein were diametricallyopposed to the opinion of the church concerning the killing of unbornhuman beings and as he had deliberately published these views in amagazine with a very wide circulation.         On 11 March 1980 the applicant and his colleague of the samehospital, who had also been dismissed, gave a television interview inwhich they were, inter alia, asked about the consequences whichthey drew from the dismissal.  The applicant replied that the firstconsequence was not to depart from the views expressed earlier whichreferred to the position of Section 218 and approved it.         The applicant's colleague declared that another consequencewas to take the case to the courts as they had only expressed supportfor the existing legislation.         At this interview, the applicant and his colleague did notrepeat the contents of the above letter to the editor which wassummarised 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 witheffect from 31 March 1980 or subsidiarily 30 June 1980.  The reasonstated was that in the above television interview he had defendedviews on Section 218 of the Penal Code before a wide audience which,as he must have known, were unacceptable for his employer as a Catholichospital.         The applicant challenged both dismissals before the competentlabour 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'saction on 15 April 1980, holding that his dismissal was "manifestlyinvalid".  The applicant had acted outside his professional functionswhen he signed the letter to the editor.         The employer's appeal (Berufung) was rejected by the RegionalLabour Court (Landesarbeitsgericht) of Düsseldorf on 8 September 1980.It considered that the principle of church autonomy, as guaranteed byArticle 140 of Basic Law read in conjunction with Article 137 para. 3of the Weimar Constitution, required that the rules enunciated by thechurch should also be taken into account as regards employmentrelationships.   The applicant was not allowed to speak in publicagainst the views of the Catholic church concerning the inviolabilityof unborn human life, and his freedom of expression was restricted inthis respect.  However, the termination of the contract wasdisproportionate.  The applicant's interest to keep his job as atrainee specialist had priority: his error concerning the lawfulnessof his statement was excusable, his statement was not directedagainst the employer but against representatives of the medicalprofession; it had been formulated by other people without theapplicant having influenced the wording; finally, it contained noreference to the applicant's employment and therefore only very fewreaders knew that he was employed by a Catholic hospital.         Because of the fundamental importance of the case, theemployer was granted leave to appeal on a point of law (Revision) tothe Federal Labour Court (Bundesarbeitsgericht).  However, theemployer's appeal was rejected by that Court on 21 October 1982.         Generally, the Federal Labour Court followed the reasoningof the Regional Labour Court.  All church-employed physicians wererequired not to speak out publicly against the views of the Catholicchurch concerning the inviolability of unborn human life.  This dutydid not violate the freedom of expression which had to be weighedagainst the church autonomy which was also protected by theconstitution.  In view of the importance which the church attributedto the protection of unborn life it was not inappropriate to require aphysician to refrain from any public statement contradicting the basicattitude of the church in this area.         Nevertheless, the applicant's dismissal was sociallyunjustified because the church autonomy did not require sanctioningeach and every breach of loyalty of some weight by a dismissal withouttaking into account the circumstances of the particular case. II.     The proceedings concerning the second dismissal generallyfollowed those concerning the first dismissal.  By judgment of21 May 1980 the Labour Court of Essen held that also the seconddismissal was socially unjustified.  It was wrong to see a newviolation of the applicant's duties in the fact that he had merelyconfirmed the views previously expressed.  On 3 October 1980 theRegional Labour Court confirmed this decision.  It considered that thetelevision interview involved a new breach of loyalty, but that it wasjustified by important interests which the applicant pursued.  Thislatter decision was confirmed by the Federal Labour Court on21 October 1982. III.    The employer lodged constitutional complaints (Verfassungs-beschwerden) in both cases, invoking the fundamental right of freedomof religion under Article 4 para. 2 of the Basic Law and the right ofchurch autonomy under Article 140 of the Basic Law read in conjunctionwith Article 137 para. 3 of the Weimar Constitution.  The employerchallenged, in particular, the Federal Labour Court's view that thedegree of loyalty of church employees differs according to the measurein which they participate in the specific religious functions of thechurch.         The Federal Constitutional Court (Bundesverfassungsgericht)dealt with the complaints in joint proceedings and allowed them by adecision of 4 June 1985.  It confirmed the view of the Federal LabourCourt that the constitutional guarantee of church autonomy wasapplicable not only to the recognised churches as such but also toinstitutions affiliated to them which in the understanding of thechurch fulfilled religious functions.  In the view of the Catholicchurch religious practice was not limited to the area of faith andworship but also comprised charitable activities.  Accordingly, it wasan internal matter of the church to lay down the organisation andadministration of its charitable institutions.         The constitutional right of church autonomy included allmeasures required for performing the charitable functions incompliance with the views of the church.  The churches were freeto decide which services they wished to provide by institutions oftheir own and which legal form these activities should take.  Theycould create employment relationships in the exercise of their privateautonomy.  If they chose the form of normal employment contracts theywere subjected to the labour law of the State.  However, theapplicability of labour law did not remove these employmentrelationships from the sphere of internal matters of the church.Therefore it was possible to impose contractual obligations on aperson working for the church, requiring him to lead his life inconformity with the doctrines of the church.   By imposing such dutiesof loyalty, the ecclesiastical employer exercised his freedom ofcontract, and at the same time his constitutional right of churchautonomy.  Only in this way was it possible for the churches toorganise their activities within the limits of the laws of generalapplication and yet according to their own views.         The churches were entitled to organise their activities on thebasis of the particular idea that all of their employees constituted achristian community even if their activities were carried out on thebasis of employment contracts.  Furthermore, the church was entitledto impose on its employees the observance of at least the mainprinciples of the dogmatic and moral teachings of the church in theinterest of the credibility of a church.         The Federal Constitutional Court recognised that churchautonomy was limited.  The right of the churches to administer theirown internal affairs was guaranteed only within the limits of thegenerally applicable laws.  As the churches were, however, free byvirtue of their autonomy to organise their activities on the basis ofthe idea of a christian community and corresponding duties, it was aconstitutional requirement to take this idea into account also whenapplying the law on protection against dismissals.         Therefore, it was, in principle, left to the church to laydown with binding effect what was necessary for the credibility of thechurch and of its doctrine, what were the specific tasks of thechurch, what was closely related to these tasks, what were theessential principles of faith and morals and what was to be regardedas a breach or a serious breach of these principles.         The views of the church were binding unless they were inconflict with fundamental principles of the legal system, such as theprohibition of arbitrariness (Article 3 para. 1 of the Basic Law) orthe 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 thelabour court proceedings the above constitutional principles had beencomplied with.  It found that in the weighing of interests the FederalLabour Court had not sufficiently taken into account the principle ofchurch autonomy.  According to ecclesiastical law, the killing of anunborn human being was a serious crime which attracted the sanction ofautomatic excommunication according to the Codex Juris CanoniciCanones 2257 para. 1 and 2350 para. 1.  This doctrine had existed inthe church since the first centuries and had been confirmed by thesecond Vatican Council.  Under constitutional law it was these viewsof the church which must constitute the basis for judging theapplicant's breach of loyalty.         On 15 January 1986 the Federal Labour Court thereupon rejectedthe applicant's actions against his first and second dismissal,following the reasoning of the Federal Constitutional Court inconformity with Section 31 of the Federal Constitutional Court Act.         The applicant's dismissal with effect from 31 March 1980 thusbecame finally valid.  In the meanwhile he had been offered a post in aCatholic hospital in Duisburg as from 1 September 1985.  The offer waswithdrawn following the judgment of 15 January 1986.  As a consequencethe applicant remained unemployed for a month.  He is now working in anon-Catholic hospital. COMPLAINT         The applicant alleges a violation of his right to freedomof expression as guaranteed by Article 10 of the Convention. PROCEEDINGS         The application was introduced on 20 June and registered on26 June 1986.         On 2 May 1988 the Commission decided that, in accordance withRule 42 para. 2 (b) of the Commission's Rules of Procedure, noticeshould be given to the respondent Government of the application andthat they should be invited to submit written observations on theadmissibility and merits before 15 July 1988.         On 6 July 1988 the President acceded to a request by theGovernment to extend this time-limit until 18 August 1988.         The Government submitted their observations on 15 August 1988and 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, tosubmit further observations orally at a hearing.         The hearing took place on 6 September 1989.  The parties wererepresented as follows:         The Government by their Agent, MinisterialdirigentDr.  Jens Meyer-Ladewig from the Federal Ministry of Justice, who wasassisted by Professor Dr.  Wolfgang Rüfner from the University ofCologne, Adviser;         The applicant by his counsel, Professor Dr.  Wolfgang Däublerof the University of Bremen, who was assisted by Mr.  Hubert Schmalzfrom the Union of Public Services, Transport and Communication Workers,Adviser. THE LAW         The applicant alleges a violation of his right to freedom ofexpression as guaranteed by Article 10 (Art. 10) of the Conventionwhich reads as follows: "1.   Everyone has the right to freedom of expression.  Thisright shall include freedom to hold opinions and to receiveand impart information and ideas without interference bypublic authority and regardless of frontiers. ... 2.  The exercise of these freedoms, since it carries with itduties and responsibilities, may be subject to suchformalities, conditions, restrictions or penalties as areprescribed by law and are necessary in a democratic society,in the interests of national security, territorial integrityor public safety, for the prevention of disorder or crime,for the protection of health or morals, for the protectionof the reputation or rights of others, for preventing thedisclosure of information received in confidence, or formaintaining the authority and impartiality of the judiciary."         The applicant claims that the State is responsible for aninterference with his right to freedom of expression as, following hisdismissal by a Catholic foundation because he had expressed a particularopinion, the Federal Constitutional Court, adopting an unreasonablywide interpretation of church autonomy, failed to protect him.  Theconstitutional norms applied did not provide a sufficiently precise,and foreseeable, legal basis for the restriction of his freedom ofexpression which, moreover, was disproportionate and not necessary ina democratic society for any of the purposes recognised in Article 10para. 2 (Art. 10-2).         The Government deny that there has been any directinterference by the State with the applicant's freedom of expression.The limitation of this freedom resulted from the applicant'semployment contract with a church institution in which he waivedthis freedom as regards statements contrary to his duty of loyalty.The applicant could freely express his views concerning abortion, buthe had no right to do so while being employed in a Catholic hospitalwhere he had assumed special duties and responsibilities.  Accordingto the Government the State was not required to protect him vis-à-visthe employer beyond ensuring that the latter did not make unreasonabledemands on him.  In this respect it was appropriate for the State toadopt a restrictive approach having regard to the church's right toregulate its internal affairs which is recognised not only in Germanconstitutional law, but also in Article 9 (Art. 9) of the Convention.  Thelegal basis for the restriction of the applicant's freedom ofexpression was sufficiently concrete and foreseeable.  The restrictionwas also proportionate, having regard in particular to the applicant'sspecial duties as a physician employed in a Catholic hospital and theState's wide margin of appreciation.         The Commission must first determine whether in thecircumstances of the case the applicant is entitled to invoke hisfreedom of expression under Article 10 (Art. 10).  The Governmentclaim that he is debarred from doing so because he waived thisfreedom by assuming certain duties of loyalty towards the Catholicchurch in his employment contract.         The Commission finds no basis for the assumption that theapplicant waived his freedom of expression as such.  That he acceptedthe status of a doctor employed by a Catholic hospital could notdeprive him of the protection afforded by Article 10 (Art. 10).         However, Article 10 (Art. 10) can only be violated if therehas been a State interference with the applicant's rights under thisprovision. Unlike the situation in the Kosiek and Glasenapp cases (cf.Eur. Court H.R. judgments of 28 August 1986, Series A nos. 104 and105) the dismissal on the ground of the expression of certain opinionswas not pronounced by a State authority.  The applicant wasdismissed by a private employer.  The fact that this was a Catholicfoundation and  that in German law the Catholic church is regarded asa corporation of public law does not make the dismissal an act ofthe State.  Under the Convention the State cannot be heldresponsible for acts of the  Catholic church or its institutions whichmust be regarded as non-governmental organisations within themeaning of Article 25 (Art. 25) of the Convention.  There is thus noquestion of a direct State interference  with the applicant'sfreedom of expression by his dismissal.     The applicant claims that there has been an indirect Stateinterference in that the German courts failed to protect his freedomof  expression against the sanction of dismissal.  The Governmentsubmit that the courts were not required to protect the applicant ashe had accepted limitations of his freedom of expression in hisemployment  contract.     The Commission notes that by entering into contractualobligations vis-à-vis his employer the applicant accepted a duty ofloyalty towards the Catholic church which limited his freedom ofexpression to a certain extent.  Similar obligations may also beagreed with other employers than the Catholic church or itsinstitutions.  In principle, the Convention permits contractualobligations of this kind if they are freely entered into by the personconcerned.  A violation of such obligations normally entails the legalconsequences stipulated in the contract, including dismissal.  Theirenforcement with the assistance of the competent State authoritiesdoes not as such constitute an "interference by public authority" withthe rights guaranteed by Article 10 para. 1 (Art. 10-1) of theConvention (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 theState  is required to "secure" the Convention rights to everyonewithin its jurisdiction.  In certain cases it may therefore benecessary for the State to take positive action with a view toeffectively securing these rights (cf. Eur. Court H.R., Marckxjudgment of 13 June 1979, Series A no. 31, p. 15 para. 31; judgmentof 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 May1985, Series A  no. 94, p. 33 para. 67; Plattform "Ärzte für dasLeben" 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 positiveobligation could arise for the State to provide protection againstdismissals pronounced because the applicants had refused to joinparticular trade unions.  The compulsion to do so, under sanction ofdismissal, was seen as an interference with their right to freedom ofassociation under Article 11 (Art. 11) of the Convention (Eur. CourtH.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 theenactment of legislation which made this treatment of theapplicants lawful and thus failed to secure them their rights underArticle 11 (Art. 11) (ibid. p. 20 para. 49).     The Commission has examined whether in the present case asimilar obligation existed for the State to secure the applicant'sright to freedom of expression against the measure of dismissal takenby his employer.  The normal Labour Court procedure was available tothe applicant and the competent courts were required to weigh theapplicant's interests, including his interest in freedom ofexpression, against those of his employer.  It is true that particularweight was finally given to the views of the church concerning theduties of loyalty of church employees.  According to the FederalConstitutional Court this was necessary in order to safeguard theconstitutional right of the church to regulate its internal affairs.Nevertheless the Federal Constitutional Court held that there werelimits to the right of the church to impose its views on itsemployees.  In particular the State courts were competent to ensurethat no unreasonable demands of loyalty were made.  The requirement torefrain from making statements on abortion in conflict with thechurch's views was not seen as an unreasonable demand because of thecrucial importance of this issue for the church.  In the case of adoctor employed in a Catholic hospital it was also relevant that thechurch regards the exercise of charitable functions as one of itsessential tasks.     The Commission is satisfied that German law, as interpreted bythe Federal Constitutional Court, takes account of the necessity tosecure an employee's freedom of expression against unreasonabledemands of his employer, even if they should result from a validemployment contract.  If, as in the present case, the employer is anorganisation based on certain convictions and value judgments which itconsiders as essential for the performance of its functions insociety, it is in fact in line with the requirements of the Conventionto give appropriate scope also to the freedom of expression of theemployer.  An employer of this kind would not be able to effectivelyexercise this freedom without imposing certain duties of loyalty onits employees.  As regards employers such as the Catholic foundationwhich employed the applicant in its hospital, the law in any eventensures that there is a reasonable relationship between the measuresaffecting freedom of expression and the nature of the employment aswell as the importance of the issue for the employer.  In this way itprotects an employee against compulsion in matters of freedom ofexpression which would strike at the very substance of this freedom(cf. a contrario Young, James and Webster judgment, loc. cit., p. 23para. 55).  The Commission considers that Article 10 (Art. 10) of theConvention   does not, in cases like the present one, impose apositive obligation on the State to provide protection beyond thisstandard.     It follows that there has been no State interference with theapplicant's right to freedom of expression as guaranteed in Article 10para. 1 (Art. 10-1) of the Convention, nor a failure to comply withpositive obligations resulting from this provision.  The applicant'scomplaint must therefore be rejected as being manifestlyill-founded within the meaning of Article 27 para. 2 (Art. 27-2) ofthe Convention.         For these reasons, the Commission         DECLARES THE APPLICATION INADMISSIBLE.  Secretary to the Commission               President of the Commission      (H.C. KRÜGER)                               (C.A. NØRGAARD)