PROCEDURE

The case originated in an application (no. 30141/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Austrian nationals, Mr Horst Michael Schalk and Mr Johan Franz Kopf (“the applicants”), on 5 August 2004.

The applicants were represented by Mr K. Mayer, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The applicants alleged in particular that they were discriminated against as, being a same-sex couple, they were denied the possibility to marry or to have their relationship otherwise recognised by law.

On 8 January 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

The applicants and the Government each filed observations on the admissibility and merits of the application. The Government also filed further observations. In addition, third-party comments were received from the United Kingdom Government, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court). A joint third-party comment was received from four non-governmental organisations which had also been given leave by the President to intervene, namely the International Federation for Human Rights (Fédération internationale des ligues des droits de l’Homme – FIDH), the International Commission of Jurists (ICJ), the AIRE Centre and the European Region of the International Lesbian and Gay Association (ILGA-Europe). The four non-governmental organisations were also given leave by the President to intervene at the hearing.

A hearing took place in public in the Human Rights Building, Strasbourg, on 25 February 2010 (Rule 59 § 3). There appeared before the Court: (a) for the Government Ms B. Ohms, Federal Chancellery, Deputy Agent, Ms G. Paschinger, Federal Ministry for European and International Affairs, Mr M. Stormann, Federal Ministry of Justice, Advisers; (b) for the applicants Mr K. Mayer, Counsel, Mr H. Schalk, Applicant; (c) for the non-governmental organisations, third-party interveners Mr R. Wintemute, King’s College London, Counsel, Ms A. Jernow, International Commission of Jurists, Adviser. The Court heard addresses by Ms Ohms, Mr Mayer and Mr Wintemute.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1962 and 1960 respectively. They are a same-sex couple living in Vienna.

On 10 September 2002 the applicants requested the Office for Matters of Personal Status (Standesamt) to proceed with the formalities to enable them to contract marriage.

By a decision of 20 December 2002, the Vienna Municipal Office (Magistrat) refused the applicants’ request. Referring to Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), it held that marriage could only be contracted between two persons of opposite sex. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. Since the applicants were two men, they lacked the capacity to contract marriage.

The applicants lodged an appeal with the Vienna Regional Governor (Landeshauptmann), but to no avail. In his decision of 11 April 2003, the Governor confirmed the Municipal Office’s legal view. In addition, he referred to the Administrative Court’s case-law according to which it constituted an impediment to marriage if the two persons concerned were of the same sex. Moreover, Article 12 of the Convention reserved the right to contract marriage to persons of different sex.

In a constitutional complaint, the applicants alleged that the legal impossibility for them to marry constituted a violation of their right to respect for private and family life and of the principle of non-discrimination. They argued that the notion of marriage had evolved since the entry into force of the Civil Code in 1812. In particular, the procreation and education of children no longer formed an integral part of marriage. According to present-day perceptions, marriage was rather a permanent union encompassing all aspects of life. There was no objective justification for excluding same-sex couples from concluding marriage, all the more so since the European Court of Human Rights had acknowledged that differences based on sexual orientation required particularly weighty reasons by way of justification. Other European countries either allowed homosexual marriage or had otherwise amended their legislation in order to give equal status to same-sex partnerships.

Lastly, the applicants alleged a breach of their right to the peaceful enjoyment of their possessions. They argued that in the event that one partner in a homosexual couple died, the other was discriminated against since he would be in a much less favourable position under tax law than the surviving partner in a married couple.

On 12 December 2003 the Constitutional Court (Verfassungsgerichtshof) dismissed the applicants’ complaint. The relevant parts of its judgment read as follows: “The administrative proceedings that resulted in the impugned decision were exclusively concerned with the issue of the legitimacy of the marriage. Accordingly, the complainants’ sole applicable grievance is that Article 44 of the Civil Code only recognises and provides for marriage between ‘persons of opposite sex’. The allegation of a breach of the right of property is simply a further means of seeking to show that this state of affairs is unjustified. With regard to marriage, Article 12 of the [Convention], which ranks as constitutional law, provides: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ Neither the principle of equality set forth in the Austrian Federal Constitution nor the European Convention on Human Rights (as evidenced by [the terms] ‘men and women’ in Article 12) require that the concept of marriage, as being geared to the fundamental possibility of parenthood, should be extended to relationships of a different kind. The essence of marriage is, moreover, not affected in any way by the fact that divorce (or separation) is possible and that it is a matter for the spouses whether in fact they are able or wish to have children. The European Court of Human Rights found in its Cossey [v. the United Kingdom] judgment of 27 September 1990 (no. 10843/84, [Series A no. 184], concerning the particular position of transsexual persons) that the restriction of marriage to this ‘traditional’ concept was objectively justified, observing: ‘... that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage ...’ [The subsequent change in the case-law concerning the particular issue of transsexuals (Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI) does not permit the conclusion that there should be any change in the assessment of the general question at issue here.] The fact that same-sex relationships fall within the concept of private life and as such enjoy the protection of Article 8 of the [Convention] – which also prohibits discrimination on non-objective grounds (Article 14 of the [Convention]) – does not give rise to an obligation to change the law of marriage. It is unnecessary in the instant case to examine whether, and in which areas, the law unjustifiably discriminates against same-sex relationships by providing for special rules for married couples. Nor is it the task of this court to advise the legislature on constitutional issues or even matters of legal policy. Instead, the complaint must be dismissed as ill-founded.”

The Constitutional Court’s judgment was served on the applicants’ counsel on 25 February 2004.

II. RELEVANT DOMESTIC AND COMPARATIVE LAW

A. Austrian law

1. The Civil Code

Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides: “The marriage contract shall form the basis for family relationships. Under the marriage contract two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other.” This provision has been unchanged since its entry into force on 1 January 1812.

2. The Registered Partnership Act

The purpose of the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz) was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships. In introducing the said Act, the legislator had particular regard to developments in other European States (see the explanatory report on the draft law – Erläuterungen zur Regierungsvorlage, 485 der Beilagen XXIV GP).

The Registered Partnership Act, Federal Law Gazette (Bundesgesetzblatt) vol. I, no. 135/2009, came into force on 1 January 2010. Section 2 of the Act provides as follows: “A registered partnership may be formed only by two persons of the same sex (registered partners). They thereby commit themselves to a lasting relationship with mutual rights and obligations.”

The rules on the establishment of a registered partnership, its effects and its dissolution resemble the rules governing marriage.

Registered partnership involves cohabitation on a permanent basis and may be entered into between two persons of the same sex having legal capacity and having reached the age of majority (section 3). A registered partnership must not be established between close relatives or with a person who is already married or has established a still valid registered partnership with another person (section 5).

Like married couples, registered partners are expected to live together like spouses in every respect, to share a common home, to treat each other with respect and to provide mutual assistance (section 8(2) and (3)). As in the case of spouses, the partner who is in charge of the common household and has no income has legal authority to represent the other partner in everyday legal transactions (section 10). Registered partners have the same obligations regarding maintenance as spouses (section 12).

The grounds for dissolution of a registered partnership are the same as for dissolution of marriage or divorce. Dissolution of a registered partnership occurs in the event of the death of one partner (section 13). It may also be pronounced by a judicial decision on various other grounds, such as lack of intent to establish a registered partnership (section 14), fault of one or both partners, or breakdown of the partnership due to irreconcilable differences (section 15).

The Registered Partnership Act also contains a comprehensive range of amendments to existing legislation in order to provide registered partners with the same status as spouses in various other fields of law, such as inheritance law, labour, social and social insurance law, tax law, the law on administrative procedure, the law on data protection and public service, passport and registration issues, as well as legislation regarding foreigners.

However, some differences between marriage and registered partnership remain, apart from the fact that only two persons of the same sex can enter into a registered partnership. The following differences were the subject of some public debate prior to the adoption of the Registered Partnership Act: firstly, while marriage is contracted before the Office for Matters of Personal Status, registered partnerships are concluded before the district administrative authority; and secondly, the rules on the choice of name differ from those for married couples: for instance, the law uses the term “last name” where a registered couple chooses a common name, but the term “family name” is used in reference to a married couple’s common name. The most important differences, however, concern parental rights: unlike married couples, registered partners are not allowed to adopt a child; nor is the adoption of stepchildren permitted, that is to say, the adoption of one partner’s child by the other partner (section 8(4)). Artificial insemination is also excluded (section 2(1) of the Artificial Procreation Act – Fortpflanzungsmedizingesetz).

B. Comparative law

1. European Union law

Article 9 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and came into force on 1 December 2009, reads as follows: “The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”

The relevant parts of the Commentary of the Charter read as follows: “Modern trends and developments in the domestic laws in a number of countries toward greater openness and acceptance of same-sex couples notwithstanding, a few States still have public policies and/or regulations that explicitly forbid the notion that same-sex couples have the right to marry. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. The domestic laws of the majority of States presuppose, in other words, that the intending spouses are of different sexes. Nevertheless, in a few countries, e.g. in the Netherlands and in Belgium, marriage between people of the same sex is legally recognised. Others, like the Nordic countries, have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e. its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. At the same time it is important to point out that the name ‘registered partnership’ has intentionally been chosen not to confuse it with marriage and it has been established as an alternative method of recognising personal relationships. This new institution is, consequently, as a rule only accessible to couples who cannot marry, and the same-sex partnership does not have the same status and the same benefits as marriage. In order to take into account the diversity of domestic regulations on marriage, Article 9 of the Charter refers to domestic legislation. As it appears from its formulation, the provision is broader in its scope than the corresponding Articles in other international instruments. Since there is no explicit reference to ‘men and women’ as the case is in other human rights instruments, it may be argued that there is no obstacle to recognise same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages. International courts and committees have so far hesitated to extend the application of the right to marry to same-sex couples.”

A number of directives are also of interest in the present case. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification determines the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the member States. Article 4, entitled “Family members”, provides: “3. The member States may, by law or regulation, authorise the entry and residence, pursuant to this directive und subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third-country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third-country national who is bound to the sponsor by a registered partnership in accordance with Article 5 § 2, ...” Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 concerns the right of citizens of the Union and their family members to move and reside freely within the territory of the member States. Article 2 thereof contains the following definition: “For the purposes of this Directive: ...

’Family member’ means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a member State, if the legislation of the host member State treats registered partnerships as equivalent to marriage in accordance with the conditions laid down in the relevant legislation of the host member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependant direct relative in the ascending line and those of the spouse or partner as defined in point (b); ...”

2. The state of relevant legislation in Council of Europe member States

Currently, six out of forty-seven member States grant same-sex couples equal access to marriage, namely Belgium, the Netherlands, Norway, Portugal, Spain and Sweden.

In addition, the following thirteen member States do not grant same-sex couples access to marriage, but have passed some kind of legislation permitting same-sex couples to register their relationships: Andorra, Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland and the United Kingdom. In sum, there are nineteen member States in which same-sex couples either have the possibility to marry or to enter into a registered partnership (see also the overview provided in Burden v. the United Kingdom [GC], no. 13378/05, § 26, ECHR 2008).

In two States, namely Ireland and Liechtenstein, reforms intending to give same-sex couples access to some form of registered partnership are pending or planned. In addition, Croatia has a Law on same-sex civil unions which recognises cohabiting same-sex couples for limited purposes, but does not offer them the possibility of registration.

According to the information available to the Court, the vast majority of the States concerned have introduced the relevant legislation in the last decade.

The legal consequences of registered partnerships vary from being almost equivalent to marriage to giving relatively limited rights. Among the legal consequences of registered partnerships, three main categories can be distinguished: material consequences, parental consequences and other consequences.

Material consequences cover the impact of registered partnerships on different kinds of tax, health insurance, social security payments and pensions. In most of the States concerned, registered partners obtain a status similar to marriage. This also applies to other material consequences, such as regulations on joint property and debt, the application of rules of alimony upon break-up, entitlement to compensation following the wrongful death of the partner and inheritance rights.

With regard to parental consequences, however, the possibilities for registered partners to undergo medically assisted insemination or to foster or adopt children vary greatly from one country to another.

Other consequences include the use of the partner’s surname, the impact on a foreign partner’s ability to obtain a residence permit and citizenship, refusal to testify, next of kin status for medical purposes, the right to succeed to the deceased partner’s tenancy, and lawful organ donation.