Communicated on 29 May 2015
Application no. 31176/13
Manfred HÖRMANN and Felix Maximilian MOSER
lodged on 14 May 2013
STATEMENT OF FACTS
The applicants, Mr Manfred Hörmann and Mr Felix Maximilian Moser, are Austrian nationals, who were born in 1969 and 1976 respectively and live in Stallhofen. They are represented before the Court by Mr H. Graupner, a lawyer practising in Vienna.
A. The circumstances of the cases
The applicants are a same-sex couple who have been living in a stable relationship for several years. On 26 April 2010 they requested the Stallhofen Office for Matters of Personal Status (Standesamt) to proceed with the formalities to enable them to contract marriage. They argued that the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz) did not correspond to their idea of an institutionalised partnership as it was in many ways lighter (lockerer) than a traditional civil marriage, and because registered partners did not enjoy the same rights as married partners. They contended that limiting civil marriage to different-sex couples violated their constitutional right to equal treatment and non-discrimination on grounds of their gender and their sexual orientation. The applicants further stated that in case they were denied the conclusion of a civil marriage, they applied for the conclusion of a registered partnership, but only if the conclusion were to take place before the Office for Matters of Personal Status. They stated that they would not conclude a registered partnership before the District Administrative Authority (Bezirksverwaltungsbehörde) and explicitly requested the Office for Matters of Personal Status to decide on their applications.
On 5 July 2007 the Stallhofen Office for Matters of Personal Status dismissed the applicant’s application for the conclusion of a civil marriage. It held that pursuant to section 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), civil marriage could only be concluded by two persons of the opposite sex. Two persons of the same sex could only conclude a registered partnership. Pursuant to section 47a of the Personal Statute Act (Personenstandsgesetz), however, the responsible authority was the District Administrative Authority. Therefore, the Office for Matters of Personal Status lacked competence to conclude a registered partnership and dismissed the respective application.
The applicants appealed, arguing that the Office for Matters of Personal Status had the duty to interpret the respective laws in conformity with basic rights and the Constitution.
On 1 December 2010 the Steiermark Regional Government (Amt der Steiermärkischen Landesregierung) dismissed the appeal, holding that the Office for Matters of Personal Status indeed lacked competence to decide on the application for the conclusion of a registered partnership, and that the conclusion of a civil marriage by a same-sex couple was not foreseen under Austrian law.
The applicants lodged complaints with the Administrative Court (Verwaltungsgerichtshof) and the Constitutional Court (Verfassungsgerichtshof) at the same time, relying inter alia on Articles 8, 12 and 14 of the Convention, arguing that there was no discernible legitimate aim in the difference in treatment of homosexual couples vis-à-vis heterosexual couples when it came to marriage. Because there were significant differences between the two legal institutions, the registered partnership being the one according less rights and duties to the partners, the applicants preferred the more traditional framework of civil marriage for their relationship. However, they submitted that even if they conferred exactly the same rights, it still would not be compatible with the right to equal treatment and amount to segregation that there were two different legal institutions. Further, in their view it amounted to sexual apartheid that registered partnerships could not be concluded before the same authority as civil marriages are. In their view, there was no legitimate aim in this segregation either.
On 9 October 2012 the Constitutional Court dismissed the complaint, holding that the legislator had a wide margin of appreciation to create different legal institutions for same-sex couples on the one hand, and different-sex couples on the other hand. This extended also to the determination which authority was competent to conclude a registered partnership. The legislator was not under an obligation to confer exactly the same rights, duties and modalities of conclusion to registered partnerships as it has to civil marriage.
On 19 September 2013 the Administrative Court also dismissed the complaints, mainly referring to the Constitutional Court’s reasoning for dismissal.
B. Relevant domestic law and practice
Article 44 of the Civil Code provides that, by contracting marriage, two persons of opposite sex declare their will to live in a permanent union, to procreate children and to raise them and to assist each other. The provision has been unchanged since the entry into force of the Civil Code on 1 January 1812. Section 47 of the Personal Statute Act stipulates that the Office for Matters of Personal Status has to perform a wedding ceremony at a place and in a manner “which corresponds to the significance of marriage”.
On 1 January 2010 the Registered Partnership Act came into force, which allows same-sex couples to have their relationship recognized by law. The rules on the establishment of a registered partnership, its effects and its dissolution resemble the rules governing marriage when it comes to material consequences. Some substantial differences remain in respect of parental rights. Pursuant to section 47a of the Personal Statute Act, as in force at the relevant time, registered partnerships have to be concluded before and within the premises of the District Administrative Authority.
On 19 June 2013 the Constitutional Court (case nos. G18/2013 and others) declared the phrase “within the premises of the District Administrative Authority” of section 47a § 1 of the Personal Statute Act to be unconstitutional. It found that the phrase infringed the principle of equal treatment and was hence discriminatory and in violation of Article 14 read in conjunction with Article 8 of the Convention, as there was no objective justification discernible as to why a registered partnership could not be concluded, just as well as civil marriage, at any location which corresponded to the meaning of this legal institution.
According to section 26 of the Personal Statute Act as amended, the competent authority for the conclusion of registered partnerships is still the District Administrative Authority. However, pursuant to section 25 in conjunction with section 18 §§ 1-3 of the Personal Statute Act, the conclusion can now take place at any suitable location.
The applicants complain under Article 14 read in conjunction with Article 8 of the Convention that they are discriminated on grounds of their sexual orientation, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status.
QUESTIONS TO THE PARTIES
1. Have the applicants suffered discrimination on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status?
2. Have the applicants in the meantime concluded a registered partnership? If so, when and where?