TrustHLT/LaCour huggingface dataset:
GR1 (Government): Contrary to that, the applicant became personally liable only when the company L.E. was struck off the court register.
GR1 (Government): Secondly, regarding the value of a share of an individual member, we believe that the value of the share is important only if the member is liable for the debts within the limits of his share.
GR1 (Government): The essence of piercing the corporate whale is, however, precisely that a company member is personally liable with all his assets, so regardless of the value of his share.
GR1 (Government): So it was not the value of the share, but the percentage that was important when considering the applicant's status of an active company member, namely those members whose shareholdings account for at least 10% of the share capital, have the status of minority member, and we believe that they are able to influence the operations of the company.
GR1 (Government): So now we will comment on the submission of the civil initiative.
GR1 (Government): In the proceedings before the Grand Chamber, the civil initiative has presented itself as an initiative that brings together 1,000 entrepreneurs.
GR1 (Government): The following explanation has to be provided in this regard.
GR1 (Government): The civil initiative is an informal association of persons.
GR1 (Government): The contact information on its website lists only one name, that is that of the person who is the president of the civil initiative and who signed the submission file in these proceedings.
GR1 (Government): The civil initiative has no address and no other contact information is to be found on its website.
GR1 (Government): As the civil initiative is an entirely informal association of persons, its representative character may not be verified.
GR1 (Government): Regarding the creditability of its allegations, the memorial filed by the civil initiative is full of false information and allegations.
GR1 (Government): This is regrettable, but not surprising, as the civil initiative has already acted in such a manner in the past.
GR1 (Government): For example, in the proceedings before the Grand Chamber, the applicant submitted the document before, which is a record of the session of two committees of the National Assembly.
GR1 (Government): The session referred to the proposal to abolish the personal liability of active company members for the debts of struck-off companies.
GR1 (Government): At this session, the representative of the civil initiative claimed that the differentiation between active and passive members was invented by a secretary at the Constitutional Court because the judges did not know how to distribute the liability.
GR1 (Government): The government is of the opinion that such statements are completely inappropriate and they show a total lack of respect towards the Constitutional Court.
GR1 (Government): The government proposes that the credibility of the civil initiative be assessed in the light of these and similar inappropriate statements, which are part of the memorials submitted by the civil initiative in these proceedings.
GR1 (Government): About the allegations, first, it is not true that the Financial Operation of Companies Act provided for the striking off of companies without any formal proceedings.
GR1 (Government): The government has already explained in detail how the proceedings were conducted and what legal remedies were available.
GR1 (Government): It is also not true that the debts of the struck-off companies were transferred to company members immediately upon the entry into force of the Act.
GR1 (Government): The transfer of debts is a consequence of striking off and cannot occur before that.
GR1 (Government): It is also not true that the founders who were no longer company members at the time when the company was struck off were also held liable for the debts of the struck-off company.
GR1 (Government): Only those persons who were in fact members at the time of striking off were held liable.
GR1 (Government): In its observations of December 2017, the government cited the case law which confirms that.
GR1 (Government): It is also not true that the Constitutional Court imposed on the legislature the obligation to identify the criteria relevant for determining the status of active company member.
GR1 (Government): Where did the civil initiative find this information?
GR1 (Government): It is also not true that the objection against the enforcement order was not allowed in enforcement proceedings.
GR1 (Government): On the contrary, it is precisely the case of the applicant package that reaffirms the availability of legal remedies to debtor.
GR1 (Government): If the debtor entered the proceedings only after the enforcement order had become final, he nevertheless had the opportunity to object against it.
GR1 (Government): This is evident from the legal opinion of the Supreme Court of the Republic of Slovenia from 2003 and the decision of the Constitutional Court from 2005.
GR1 (Government): Moreover, this is also evident from the two decisions of Maribor Courts submitted by the applicants.
GR1 (Government): Several complaints raised by the civil initiative in the present proceedings have already been addressed and rejected in the Constitutional Court decisions.
GR1 (Government): For example, the misinterpretation that Slovenian court decisions could not be enforced abroad and its complaints about the supposed retroactivity of the act.
GR1 (Government): The civil initiative also claims that debtors suffered due to the publication of their names and stories in the media, while at the same time on its website, the civil initiative itself encourages the debtors to present their stories in media.
GR1 (Government): The government believes that no further comments on the role of, on the memorial of the civil initiative are necessary.
Guido Raimondi (JudgeP): Thank you very much, Mrs. Jovin Hrastnik.
Guido Raimondi (JudgeP): I thank the parties for their submissions and their answers to the court's questions.
Guido Raimondi (JudgeP): The judgment will be delivered later and the parties will be informed of the date of delivery.
Nicolas Bratza (JudgeP): I declare open the public hearing on the admissibility and merits in the case of X and others against Austria.
Nicolas Bratza (JudgeP): The case was lodged with the court on the 24th of April, 2007, under Article 34 of the Convention by three Austrian nationals.
Nicolas Bratza (JudgeP): The application was allocated to the first section of the court pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Nicolas Bratza (JudgeP): The application was communicated to the government on the 29th of January, 2009.
Nicolas Bratza (JudgeP): On the 1st of December, 2011, the first section held a hearing on the admissibility and merits of the case.
Nicolas Bratza (JudgeP): On the 5th of June, 2012, it decided to relinquish jurisdiction in favor of the Grand Chamber.
Nicolas Bratza (JudgeP): At their request, the following associations were granted leave to submit joint written comments as third parties under Article 36, Paragraph 2 of the Convention.
Nicolas Bratza (JudgeP): Federation Internationale des Ligues des Droits de l'Homme, the International Commission of Jurists, the European Region of the International Lesbian, Gay, Bisexual, Trans, and Intersex Association, the British Association for Adoption and Fostering, the Network of European LGBT Families Associations, and the European Commission on Sexual Orientation Law.
Nicolas Bratza (JudgeP): In addition, the following associations or institutions were also granted leave at their request to submit written comments as third parties.
Nicolas Bratza (JudgeP): The European Center for Law and Justice, the Attorney General for Northern Ireland, Amnesty International, and Alliance Defending Freedom.
Nicolas Bratza (JudgeP): The government are represented by their deputy agent, Ms. Brigitte Ohms, assisted by Mr. Michael Stormann
Nicolas Bratza (JudgeP): and Ms. Anna Jankovic, advisors.
Nicolas Bratza (JudgeP): The applicants are represented by Mr. Helmut Graupner,
Nicolas Bratza (JudgeP): counsel.
Nicolas Bratza (JudgeP): I would also like to welcome a group of French judges from the École Nationale de la Magistrature in Paris and a delegation of European judges and prosecutors.
Nicolas Bratza (JudgeP): Having consulted the deputy agent of the government and the representative of the applicants, I have determined the order of addresses as follows.
Nicolas Bratza (JudgeP): Ms. Ohms for the government will speak first,
Nicolas Bratza (JudgeP): and then Mr. Graupner for the applicants.
Nicolas Bratza (JudgeP): I call Ms. Ohms.
GR1 (Government): the application before us contests the general principles of Austrian law of domestic relations.
GR1 (Government): We have the honor to present the position of the Austrian government on second-parent adoption, focusing on adoption by same-sex partners.
GR1 (Government): The Austrian government has already submitted detailed written observations.
GR1 (Government): Therefore, our explanations will be limited to the main issues of our position.
GR1 (Government): I would like to start with the facts of the present case, which are, in our view, crucial for the case, and then turn to the applicable law before I respond to the court's questions.
GR1 (Government): The applicants are a same-sex couple and the son of one of the two partners.
GR1 (Government): They have been living in a joint household for years in their desired way.
GR1 (Government): The son was born out of wedlock and, in compliance with the law, was first given his mother's family name and, subsequently, by a separate legal act, the family name of his father.
GR1 (Government): His mother has sole custody of the child.
GR1 (Government): The biological and legal father was living in a separate household.
GR1 (Government): He was in regular contact with his child and pays alimony for him.
GR1 (Government): The same-sex couple had the wish to intensify the legal family ties.
GR1 (Government): As a first step, they asked for a transfer of custody to the mother's partner as foster mother, without success, as this legal instrument is not designed for intact families.
GR1 (Government): And in our case, the family conditions were all right.
GR1 (Government): Then the mother's partner wanted to adopt the son.
GR1 (Government): The father did, however, refuse to agree to the adoption.
GR1 (Government): This has to be seen against the consequence of an adoption in Austria.
GR1 (Government): The father and also his parents would lose all their parental rights, such as visiting rights.
GR1 (Government): The applicants asked the Austrian courts to approve the adoption agreement, while noting that the father had refused to give his consent and that the court would have to substitute his consent, as in their view, the father had failed to give valid reasons for his refusal and the adoption would be in the best interest of the child.
GR1 (Government): However, the applicants never applied formally for the substitution of the father's consent as required by law.
GR1 (Government): The Austrian courts did not agree.
GR1 (Government): They stated in the ELA that according to the Austrian Civil Code, the primary aim of the adoption provisions was to secure the child's well-being in cases where the biological parents were not in a position to care for the child.
GR1 (Government): In the present case, there was no need to replace one of the parents by an adoptive parent.
GR1 (Government): Moreover, the adoption would not lead to the effect desired by the applicants, namely to replace the father.
GR1 (Government): Here I would like to mention that even the applicants do not provide any information on how their family life might have suffered any practical restrictions or undue interferences by the fact that the mother's partner wasn't allowed to adopt the son living in the family.
GR1 (Government): The Austrian government is well aware of this sensitive situation of the couples and of the applicant together.
GR1 (Government): We understand the applicant's desire to intensify the legal family ties.
GR1 (Government): However, I once more would like to stress that the present case is a typically patchwork situation.
GR1 (Government): In Austria, for instance, in 2010, there was an estimated number of 77,800 minors living in patchwork families.
GR1 (Government): In comparison to this number of minors, the number of all adoptions in 2011 amounted to 248 minors.
GR1 (Government): From these 248 minors, 102 adoptions were initiated by the youth welfare services looking for suitable parents.
GR1 (Government): the applicants are challenging the following general principles of Austrian law of domestic relations.
GR1 (Government): First, the Austrian law is based on the assumption that the child has one mother and one father, his and her parents.
GR1 (Government): The Austrian law is thus guided by the biological principle that the child has one father and one mother, even if the father cannot be identified in certain cases.
GR1 (Government): The adoption law is also based on this parental principle.
GR1 (Government): Adoption pursues the aim of creating, to the extent possible and reasonable, the circumstances of a biological family.
GR1 (Government): Adoptions may be made by a couple or an individual.
GR1 (Government): An adoption by more than one person is admissible only if the adopting persons are married to each other.
GR1 (Government): In case of an adoption by a single person, a biological parent is replaced without any exemption by an adoptive parent of the same sex as the respective biological parent.
GR1 (Government): Hence, for example, an aunt cannot adopt a nephew or a niece if the legal family bonds with the mother continue to exist.
GR1 (Government): The second principle of Austrian law of domestic relations guarantees that no measure with respect to a child can take place contrary to the well-being of the child.
GR1 (Government): Recently, this principle has been embodied even in Austrian constitution.
GR1 (Government): Therefore, adoption of a child is primarily aimed at ensuring that children who are without parents or who are undesired or children from broken families or children with parents who, for serious reasons, cannot ensure the child's proper education will find a new home with suitable and responsible persons who will provide them with education and care unless there are serious reasons affecting the child's interests and the interference with the family law relations between children and their biological parents are to be avoided as far as possible.
GR1 (Government): The third principle says that the rights to respect for family life of a parent to be replaced must adequately be taken into account.
GR1 (Government): Therefore, a court's approval of an adoption may only be granted if the biological parent of the minor child consents to the adoption.
GR1 (Government): The consent of the person to be deprived of his parental rights is a sine qua non.
GR1 (Government): If no consent is given by the biological parents, the court might replace the consent under clearly defined circumstances.
GR1 (Government): Replacing the consent is an extraordinary measure that will be taken into consideration only in cases of particular circumstances, especially whenever the interests of the child in the adoption clearly outweigh the interests of the biological partner or the biological parent in general, or if the grounds for refusal are not justified in moral terms.
GR1 (Government): As a fourth principle might be regarded that also the partner of a single-educating parent might have certain rights vis-a-vis his children.
GR1 (Government): If there is family life beyond legal family ties and the children are living in the same household, the partner has to undertake all reasonable measures under the given circumstances to protect the well-being of the children.
GR1 (Government): Moreover, these persons may ask the courts to take certain protective measures relating to the minor, for instance, to transfer custody where the minor's well-being is endangered.
GR1 (Government): According to a respectable press item from February this year on the situation of rainbow families in Austria, this seems to work well.
GR1 (Government): So to sum up, the sexual orientation of the persons concerned is completely irrelevant.
GR1 (Government): The Austrian family law and the regulation on adoptions do not contain any moral value judgment or even a moral conviction.
GR1 (Government): Only in 2010, an explicit exclusion of second-parent adoption was introduced in the Austrian Registered Partnership Act.
GR1 (Government): This act, however, I would like to stress is not applicable to the present case where the last national decision was issued in 2006.
GR1 (Government): in our view, these general principles are fully in line with the European standard.
GR1 (Government): At the European level, there are only two conventions on the adoption of children, and only the revised version of 2008, which entered into force in 2011, takes into account same-sex couples insofar as the states are free to extend adoptions to same-sex couples who are married or who have entered into a registered partnership.
GR1 (Government): However, these instruments cannot be regarded as European standard, as the 1967 convention has been ratified by only 16 of the 47 Council of Europe member states, and the revised version only by seven states.
GR1 (Government): At the international level, Article 21 of the Convention on the Rights of the Child stipulates that the state parties ensure that the adoption of a child is authorized only on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives, and little guardians, and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counseling as may be necessary.
GR1 (Government): That's also a consent requirement.
GR1 (Government): The wording of the main up-to-date specific European soft law instrument is also drafted in a very reluctant way.
GR1 (Government): The recommendation of the Committee of Ministers on Measures to Combat Discrimination on Grounds of Sexual Orientation and Gender Identity, adopted in 2010, only advises that member states whose national legislation permits single individuals to adopt children should ensure that the law is applied without discrimination based on sexual orientation or gender identity.
GR1 (Government): With reference to same-sex partnerships, member states should seek to ensure that the rights and obligations are equivalent to those of different sex couples in a comparable situation.
GR1 (Government): On the latest attempt of drafting a Committee of Ministers' recommendations on the rights and legal status of children and parental responsibilities has not been successful so far against the background of the wide diversity of political and legal traditions in the member states in the area of family law.
GR1 (Government): Here I would like to mention, for the sake of completeness, that Austria has only ratified the 1967 Convention at the European level.
GR1 (Government): And most of the other Council of Europe member states do not permit two legal fathers or two legal mothers for a child.
GR1 (Government): Reportedly, only 10 member states permit adoptions by same-sex partners at all, which means that up to now, neither a European standard, nor a trend, or even tendency exists.
GR1 (Government): According to the Court's case law, this situation indicates the existence of a state's margin of appreciation in assessing whether and to what extent difference in otherwise similar situations justify a difference in treatment.
GR1 (Government): Mr. President, distinguished members of the Court,
GR1 (Government): as Article 8 of the Convention neither contains a right to adoption nor any right to other specific legal instruments for the legal recognition of existing social family ties.
GR1 (Government): The states have a very wide margin of appreciation in regulating adoptions because there is no European standard.
GR1 (Government): Article 14 does not prohibit distinctions in treatment, which are founded on an objective assessment of essentially different factual circumstances, and which, being based on public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention.
GR1 (Government): If the Austrian legislator thus gives the biological and legal parents priority when it comes to care for the child, irrespective of the sexual orientation, and permit only in exceptional cases an adoption in the interest of the child's well-being, Austria cannot be blamed for this, even if the notion of family life within the meaning of Article 8 has developed and will presumably develop also in future.
GR1 (Government): Since an adoption results in a loss of parental rights and obligations, and there is an interference with the right to family of the replaced parent and the adoptive child, their interest must also be adequately taken into account.
GR1 (Government): The biological parents must not be completely excluded from the child's life as long as there are no grounds justifying such a measure for the well-being of the child.
GR1 (Government): In the Austrian agent's view, it is thus not contrary to the Convention if the consent of the replaced parent is prerequisite for an adoption without which no adoption is possible.
GR1 (Government): As the father in our case did not give his consent to the adoption agreement and there was no reason for replacing his missing consent, a sine qua non for an adoption has not been met.
GR1 (Government): Therefore, no one, not only the applicants, no one could have adopted and can adopt the second applicant, the son.
GR1 (Government): Moreover, one cannot ignore the following.
GR1 (Government): The basic reproduction principle has always been the same.
GR1 (Government): It requires two individuals of different sexes, irrespective of the sexual orientation.
GR1 (Government): Hence, if the legislator uses the biological principle as a guideline for regulating the relationship between parents and children and to regulate adoptions, this cannot be regarded as discrimination.
GR1 (Government): Securing the child's well-being is certainly a legitimate aim pursued by using adequate means since the interests of all the other persons involved are adequately taken into account.
GR1 (Government): Mr. President, distinguished members of the Court, against this background,
GR1 (Government): we would like to answer the questions raised by the Court as follows.
GR1 (Government): When looking at the legal situation of a married couple, respectively, of an unmarried different sex couple, and the situation of the applicants, we see no room for comparison with spouses from the outset.
GR1 (Government): Here, I would like to refer to the Shalkonkov judgment.
GR1 (Government): As regards the applicant's specific situation, above all, it has to be taken into account that the child's father had refused to give his consent, and therefore, the applicants are exactly in the same situation as a married or unmarried different sex couple.
GR1 (Government): According to the Austrian Civil Code, the consent of both biological parents is an essential precondition for any adoption, be it in same-sex couples or in different-sex couples.
GR1 (Government): The first applicant could not have adopted the minor even if she had a different sexual orientation.
GR1 (Government): There is, therefore, no difference in treatment.
GR1 (Government): The Austrian courts have examined in substance and in detail whether the existence of an exceptional case can be assumed in the present case, which would allow to replace the father's consent.
GR1 (Government): In this context, the Austrian courts did not doubt at all the good situation of the applicants and of the family life.