Case of European Court of Human Rights, June 24, 2010 (case Schalk and Kopf v. Austria)

Resolution Date:June 24, 2010

Preliminary objection dismissed (struck out of the list) Remainder inadmissible No violation of Art. 12 No violation of Art. 14+8


Information Note on the Court’s case-law No. 131

June 2010

Schalk and Kopf v. Austria - 30141/04

Judgment 24.6.2010 [Section I]

Article 14


Inability of same-sex couple to marry: no violation

Article 8

Article 8-1

Respect for family life

Cohabiting same-sex couple living in a stable relationship constitute “family life”: article 8 applicable

Article 12


Inability of same-sex couple to marry: no violation

Facts – In 2002 the applicants, a same-sex couple, requested the competent authorities permission to get married. Under domestic law a marriage could only be concluded between persons of opposite sex and the applicants’ request was consequently dismissed. Following their subsequent constitutional complaint, the Constitutional Court held that neither the Austrian Constitution nor the European Convention required that the concept of marriage, which was geared to the possibility of parenthood, should be extended to relationships of a different kind and that the protection of same-sex relationships under the Convention did not give rise to an obligation to change the law on marriage. On 1 January 2010 the Registered Partnership Act entered into force in Austria, aiming to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships. While the Act provided registered partners with many of the same rights and obligations as spouses, some differences remained, in particular registered partners were unable to adopt or undergo artificial insemination.

Law – Article 12: The Court first examined whether the right to marry granted to “men and women” under the Convention could be applied to the applicants’ situation. Even though only six of the Council of Europe member States allowed same-sex marriages, the provision of the Charter of Fundamental Rights of the European Union granting the right to marry did not include a reference to men and women, so allowing the conclusion that the right to marry must not in all circumstances be limited to marriage between two persons of the opposite sex. It could, therefore, not be concluded that Article 12 did not apply to the applicants’ complaint. At the same time the Charter left the decision whether or not to allow same-sex marriages to regulation by member States’ national law. The Court underlined that national authorities were best placed to assess and respond to the needs of society in this field, given that marriage had deep-rooted social...

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