Background

In Ratzenböck and Seydl v Austria [2017] ECHR 947, the applicants, Helga Ratzenböck and Martin Seydl, complained that, as a heterosexual couple, they were denied access to a registered partnership, a legal institution only available to same-sex couples.

In February 2010, they had lodged an application to become registered partners under the Registered Partnership Act 2009 [Eingetragene Partnerschaft-Gesetz] but the Mayor of Linz had refused their application because the registered partnership was reserved for same-sex couples only; and their appeal, alleging discrimination based on their sex and sexual orientation, was dismissed by the Upper Austrian Regional Governor.

They lodged complaints with the Administrative Court and the Constitutional Court, arguing that marriage was not a suitable option for them and that a registered partnership was more modern and “lighter” than marriage. In particular, they noted that there was a difference in the statutory time-limit for divorce and for the dissolution of a registered partnership and that there were differences in a number of obligations flowing from marriage and registered partnership respectively.

In September 2011, the Constitutional Court dismissed the complaint. Referring to Schalk and Kopf v Austria [2010] ECHR 1996, it concluded that if the question of whether or not to allow same-sex marriage was left to regulation by domestic law, that also applied to the question as to whether registered partnerships were to be open to opposite-sex couples. Moreover, given that opposite-sex couples could marry, the registered partnership had been introduced only to counter discrimination against same-sex couples. In February 2013, the Administrative Court also dismissed the applicants’ complaint.

Relying on Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life), they complained that refusing them a registered partnership discriminated against them on the basis of their sex and sexual orientation.

The arguments

The Court noted that the couple had been living together in a stable relationship for many years and the domestic proceedings in the present case related to the authorities’ refusal to allow them to enter into a registered partnership. The couple were directly affected by the denial of access to a registered partnership and therefore had a legitimate personal interest in seeing that situation brought to an end [20]. Accordingly, they should be considered “victims” of the alleged violation within the meaning of Article 34 ECHR [21]; nor was the application is manifestly ill-founded within the meaning of Article 35 §3(a) and the complaint was therefore admissible [22].

In brief, the applicants complained of discrimination based on their sex and sexual orientation because of their permanent exclusion from the legal institution of a registered partnership. They argued that marriage was not a suitable alternative for them because of the differences between the legal frameworks governing marriage and the registered partnership. In their view, Article 8 did not oblige states parties to introduce a registered partnership as such; however, if a state decided to do so, it was barred from excluding couples from this new partnership institution solely on the basis of their sex and sexual orientation. Moreover, they argued Schalk and Kopf, which had concerned the opposite situation – a same-sex couple being denied access to marriage – could not be applied in the present case [23].

The Government, for its part, argued that the Convention required States to provide for only one institution for the legal recognition of a stable relationship and a positive obligation under Article 8 to provide for such an institution could only arise in so far as couples had no access to marriage within the sense of Article 12 [24]. Moreover, the exclusion of opposite-sex couples from the registered partnership pursued the aim of supporting and promoting the traditional family model and the full development opportunities of the traditional family as safeguarded by Article 12 [25].

The judgment

The Court held by five votes to two (Tsotsoria and Grozev JJ dissenting) that there had been no violation of Article 14 taken in conjunction with Article 8.

As to applicability, the notion of “family” under Article 8 was not confined to marriage-based relationships and might encompass other de facto “family” ties where the parties were living together out of wedlock [29]. It follows that the facts of the present application fell within the notion of “family life” within the meaning of Article 8; consequently, both Article 8 taken alone and Article 14 taken in conjunction with Article 8 applied [30].

As to the application of general principles to the present case, the Court accepted that opposite-sex couples were in principle in a relevantly similar or comparable position to same-sex couples as regards their general need for legal recognition and protection of their relationship [39]. However, the registered partnership had been introduced as an alternative to marriage in order to make available to same-sex couples, who remain excluded from marriage, a substantially similar institution for the purposes of legal recognition. Thus, the Registered Partnership Act counterbalanced the exclusion of same-sex couples from access to legal recognition of their relationships which existed before the Act entered into force in 2010. In Schalk and Kopf, the Court had found that the Registered Partnership Act gave same-sex couples the possibility of obtaining a legal status equal or similar to marriage in many respects and that Austria had not exceeded its margin of appreciation in its choice of rights and obligations conferred by the registered partnership. Thus, the institutions of marriage and registered partnership were essentially complementary in Austrian law. Further, the legal status initially provided for by the Registered Partnership Act was equal or similar to marriage in many respects and the legal frameworks governing marriage and the registered partnership had been further harmonised after the Court’s judgment in Schalk and Kopf and also after the applicants had lodged the present application – “and that, to date, no substantial differences remain” [40].

The applicants had access to marriage and – contrary to the position of same-sex couples before the enactment of the Registered Partnership Act – that satisfied their principal need for legal recognition:

“They have not argued for a more specific need. Their opposition to marriage is based on their view that a registered partnership is a more modern and lighter institution. However, they have not claimed to have been specifically affected by any difference in law between those institutions” [41].

That being so, the Court considered that the applicants were not in a relevantly similar or comparable situation to same-sex couples who, under the current legislation, had no right to marry and needed the registered partnership as an alternative means of providing legal recognition to their relationship. There had therefore been no violation of Article 14 taken in conjunction with Article 8 of the Convention [42].

The dissenting opinions

The joint dissenting opinion of Judges Tsotsoria and Grozev is sufficiently brief to quote at some length:

“An analysis under Article 14 should address two distinct issues. First, whether the applicant was in an analogous situation to the suggested comparator group, which was treated differently. If this was indeed the case, the second issue to be addressed is whether the difference in treatment was justified. In the present case, the majority already rejected the applicant’s complaint when answering the first question. They held that the applicants, as a stable different-sex couple, were not in an analogous situation to a stable same-sex couple. The basis on which the majority reached that conclusion was that the applicants already had access to an institutional arrangement that would provide legal recognition of their relationship, namely marriage. Thus, they were not in a comparable situation to same-sex couples, who did not have the right to marry and thus no access to another form of legal recognition of their relationship.

We find this analysis unconvincing. In our view, it confuses the two distinct issues under Article 14 in a way that hollows out the protection provided by this Article. This analysis refuses to compare different-sex couples and same-sex couples as a social reality, but rather sees them as groups created by the legislature, which the legislature may choose to treat differently simply because it sees fit to do so. Different-sex couples and same-sex couples are not groups of individuals which have been created by regulatory choices. They are social groups which exist irrespective of regulatory choices and, more importantly, social groups with regard to which the Court has recognised that they ‘are in principle in a relatively similar or comparable situation as regards their general need for legal recognition and protection of their relationship’. The fact that there is no right to marriage for a same-sex couple under the Convention, and that marriage confers a special status on those who enter into it, cannot and should not change this conclusion.

The Court has previously held that the exclusion of same-sex couples from marriage is compatible with the Convention because it is justified, and not because same-sex couples are not in an analogous situation to different‑sex couples … [I]n Schalk and Kopf the Court explicitly stated that these two groups were in an analogous situation. After reaching this conclusion, the Court then looked into whether the refusal to provide access to marriage was justified, and it agreed that for reasons of history and tradition, it was. The same approach, in our view, should have been followed in the present case. The alternative takes the Court down a road that justifies in perpetuity a separate but equal approach, one for which we see no justification in the Convention and the case-law of the Court. And it is a risky course, as any justification not rooted in hundreds of years of history and tradition, but rather in fresh legislative choices made today, inevitably runs the risk of sliding into stereotypes about the ‘different’ nature of a heterosexual and a homosexual relationship.”

Comment

Readers will no doubt be aware of the forthcoming appeal to the Supreme Court from the decision in Steinfeld & Anor v The Secretary of State for Education [2017] EWCA Civ 81, in which the claimants have argued that their exclusion, as an opposite-sex couple, from a civil partnership traverses their Convention rights.

Ratzenböck and Seydl is obviously relevant but not, I would argue, conclusive. In Austria, opposite-sex couples may marry, while same-sex couples may enter a registered partnership. In Great Britain, however, a same-sex couple may choose between a civil partnership and marriage, while an opposite-sex couple does not have that choice. (The only place in the British Isles where an opposite-sex couple can enter a civil partnership is the Isle of Man.) The key question will presumably be whether or not, in the opinion of the UKSC, that degree of discrimination comes within the margin of appreciation accorded to the Westminster Government.