CASE OF RATZENBÖCK AND SEYDL v. AUSTRIA
No violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicants were born in 1966 and 1964 respectively and live in Linz. They have been living in a stable relationship for many years. 6. On 21 February 2010 the applicants lodged an application to enter into a registered partnership under the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz). 7. On 17 March 2010 the Mayor of Linz dismissed their application in accordance with sections 1, 2 and 5(1)(1) of the Registered Partnership Act, finding that the applicants did not meet the legal requirements, as the registered partnership was exclusively reserved for same-sex couples. 8. The applicants appealed. Citing, inter alia, Articles 8 and 14 of the Convention, they complained of discrimination based on their sex and their sexual orientation. The Upper Austrian Regional Governor (Oberösterreichischer Landeshauptmann) dismissed the appeal on 18 August 2010, arguing with reference to Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010) that as the Contracting States were allowed to restrict access to marriage to different-sex couples, it would appear unreasonable not to allow them to reserve access to registered partnerships exclusively for same-sex couples. 9. The applicants subsequently lodged complaints with both the Administrative Court and the Constitutional Court, arguing that marriage was not a suitable option for them, as it was substantially different from a registered partnership. In their view, a registered partnership was in many ways more modern and “lighter” than marriage. The applicants put forward several examples: the different statutory time-limit for divorce versus the time-limit for dissolution of a registered partnership in the event of an irretrievable breakdown (unheilbare Zerrüttung) of the relationship; the alimony payment obligations following a divorce/dissolution where blame could be placed on one spouse/partner; the obligations conferred by the respective legal institutions, in particular as regards trust, faithfulness and contributions to the household; and the consequences of a declaration of the death of a spouse/partner. The applicants argued that the Court’s considerations in Schalk and Kopf in respect of marriage were not applicable to the registered partnership, which was a new legal institution, introduced in the twenty-first century. It was therefore neither based on a long-standing discriminatory tradition and deep-rooted social connotations, nor aimed at possible procreation. 10. On 22 September 2011 the Constitutional Court dismissed the applicants’ complaint. The relevant parts of its judgment read as follows: “Article 12 of the [Convention] only applies to the traditional civil marriage ..., which has ‘deep-rooted social and cultural connotations’ and was, in the historical context, clearly understood ‘in its traditional sense’ (ECHR, case of Schalk and Kopf, §§ 55, 62). If the Court, in its judgment in the case of Schalk and Kopf, considers that the national provisions in the Council of Europe member States are diverse and range from allowing same-sex marriage to explicitly forbidding it, and concludes from this that, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by domestic law (ECHR, case of Schalk and Kopf, §§ 60f), this must, in view of the small number of States providing for a registered partnership for differentsex couples in addition to marriage, be even more valid for this question. As the [Convention] has to be read as a whole and its Articles have to be construed in harmony with one another, and as Article 12 of the [Convention] does not grant different-sex couples, in addition to the right to marry, a right to enter into a registered partnership, the prohibition of discrimination pursuant to Article 14 taken in conjunction with Article 8 of the [Convention], a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation beyond the scope of Article 12 of the [Convention] either (see, concerning the correlating question of the right of same-sex couples to marry, which cannot be derived from Article 14 of the [Convention] either, ECHR, case of Schalk and Kopf, § 101). ... [A]s the Austrian legislator has provided for the possibility of legal recognition for same-sex couples by introducing the registered partnership, people may rely on the prohibition of discrimination provided for by Article 14 of the [Convention] ... The Court has also stated, however, in the case of Schalk and Kopf, that the legislator may restrict access to marriage to different-sex couples because it has a certain margin of appreciation as regards the exact status conferred by alternative means of recognition. Moreover, the Court assumes that the Registered Partnership Act allows couples to obtain, in many aspects, a legal status that is equal or comparable to marriage; apart from parental rights, there were only slight differences (see ECHR, case of Schalk and Kopf, §§ 108 et seq.). Given that persons of different sex have access to marriage (see the [explanatory report on the draft law]); the registered partnership was introduced only to counter discrimination against same-sex couples; [the registered partnership] should, in substance, have the same effects as marriage; different-sex couples are not a group (historically) discriminated against; and there is no European consensus on this matter, it does not amount to a violation of Article 14 taken in conjunction with Article 8 of the [Convention] if the Austrian legislator does not grant different-sex couples access to the registered partnership. ... The Constitutional Court is not called upon to examine whether the particular differences between these legal institutions, as regards the legal consequences and dissolution options, comply with the principle of equality [Gleichheitssatz] and the prohibition of discrimination pursuant to Article 14 taken in conjunction with Article 8 of the [Convention], since the only question to be examined is whether different-sex couples have a constitutional right to access to the registered partnership.” 11. On 27 February 2013 the Administrative Court dismissed the applicants’ complaint (see paragraph 9 above) as unfounded. That decision was served on the applicants’ counsel on 25 March 2013.