Overview of Recent Cases before the European Court of Human Rights and the European Court of Justice, and of Legislative and Policy Developments (May–July 2010)
| Date | 01 September 2010 |
| DOI | 10.1177/138826271001200304 |
| Published date | 01 September 2010 |
| Subject Matter | Recent News and Case Law |
tHe euRoPeAn CouRt of HuMAn
RIGHts AnD tHe euRoPeAn CouRt
of JustICe, AnD of LeGIsLAtIve AnD
PoLICy DeveLoPMents (MAy-JuLy 2010)
Mel Cousins*
In this review, we look, in particular, at two recent decisions of the Court of Human
Rights concerning the rights of same-sex couples and a further ‘development’ of the
Court of Justice’s case law with regard to cross-border access to health care.
1.
RECENT CASES bEFoRE THE EuRoPEAN CouRT oF
HuMAN RIGHTS
1.1. SAME-SEX CouPLES AND THE RIGHT To MARRy
Schalk concerns the important issue of whether same-sex couples have a right to
marry under the Convention on Human Rights.1 Whilst the case does not directly
concern social security rights, the approach adopted has important implications for
social security cases.
The applicants were a same-sex couple living in Austria. In 2002 they applied for
permission to marry, which was refused by the relevant authorities on the grounds
that marriage could only be contracted between two persons of opposite sex. This
decision was upheld on appeal. The Austrian Constitutional Court ruled that
‘Neither the principle of equality set forth in the Austrian Federal Constitution nor the
European Convention on Human Rights (as evidenced by ‘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.’2
*
School of Law and Social Science, Glasgow Caledonian university; e-mail: mcousi11@caledonian.
ac.uk.
1
Schalk and Kopf v Austria, 30141/04, 24 June 2010.
2
Decision of 12 December 2003 as quoted in the ECHR judgment.
242
Intersentia
Recent News and Case Law
Subsequently, Austria adopted the Registered Partnership Act to provide same-
sex couples with a formal mechanism for recognising and giving legal effect to their
relationships. This entered into force from 1 January 2010. The Registered Partnership
Act provides such partners with the same status as spouses in various fields of law,
such as inheritance law, labour, social and social insurance law, fiscal law, the law
on administrative procedure, the law on data protection and public service, passport
and registration issues, as well as the law on foreigners. However, some differences
between marriage and registered partnerships remain.3
The applicants argued that Austria’s refusal to allow them to contract marriage
was in breach of Article 12 of the Convention. Article 12 provides that
‘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.’
They further argued that they were discriminated against – contrary to Article 14
taken with Article 8 of the Convention – on account of their sexual orientation, since
they were denied the right to marry and did not have any other possibility to have
their relationship recognised by law before the entry into force of the Registered
Partnership Act.
Article 8 reads
‘1. Everyone has the right to respect for his private and family life…
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.’
Article 14 provides that
‘The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority, property,
birth or other status.’
1.1.1. Article 12
The Court referred to its established case-law according to which Article 12 ‘secures
the fundamental right of a man and woman to marry and to found a family’.4 While
3
See paras. 22–23 of the judgment.
4
At 49.
European Journal of Social Security, Volume 12 (2010), No. 3
243
Recent News and Case Law
this right is ‘subject to the national laws of the Contracting States’, the limitations
thereby introduced must not restrict or reduce the right in such a way or to such an
extent that the very essence of the right is impaired.5
The applicants argued that, as the Court has held that the Convention is a living
instrument which is to be interpreted in present-day conditions, Article 12 should
be read as granting same-sex couples access to marriage or, in other words, as
obliging States to provide for such access in their national laws.6 The Court did not
accept this argument. It noted that there is no European consensus regarding same-
sex marriage7 and that the present case could be distinguished from the Goodwin
case involving transsexuals where the Court perceived ‘a convergence of standards
regarding marriage of transsexuals in their assigned gender’.8
The Court also referred to Article 9 of the Charter of Fundamental Rights of the
European union.9 The Court noted that the Charter had deliberately dropped the
reference to men and women and that Article 9 is meant to be broader in scope than
the corresponding articles in other human rights instruments.10 ‘Regard being had to
Article 9 of the Charter’, the Court took the view that the right to marry enshrined in
Article 12 should no longer ‘in all circumstances be limited to marriage between two
persons of the opposite sex’.11 Therefore, in a rather tortuous construction, it found
that Article 12 was not inapplicable to the applicants’ complaint. However, the Court
went on to say that ‘as matters stand, the question whether or not to allow same-sex
marriage is left to regulation by the national law of the Contracting State’. As ‘marriage
has deep-rooted social and cultural connotations which may differ largely from one
society to another’, the Court did not wish to substitute its own judgment in place
of that of the national authorities, who are best placed to assess and respond to the
needs of society.12 Therefore, the Court found that Article 12 of the Convention did
5
Ibid citing B. and L. v. the United Kingdom, 36536/02, 13 September 2005, and F. v. Switzerland,
11329/85, 18 December 1987.
6
At 57.
7
At the time of the judgment, six out of forty-seven Member States granted same-sex couples equal
access to marriage, namely belgium, the Netherlands, Norway, Portugal, Spain and Sweden. A
further thirteen Member States did not grant same-sex couples access to marriage, but had 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 Ireland and Liechtenstein reforms to give same-sex couples access to some
form of registered partnership were pending or planned (the Irish measure has now become law).
In addition Croatia had a Law on Same-Sex Civil unions which recognises cohabiting same-sex
couples for limited purposes.
8
At 58–9.
9
Article 9 provides that: ‘The right to marry and to found a family shall be guaranteed in accordance
with the national laws governing the exercise of these rights.’
10
At 60.
11
At 61.
12
At 62.
244
Intersentia
Recent News and Case Law
not impose an obligation on the respondent Government to grant a same-sex couple
access to marriage.
1.1.2. Articles 8 and 14
Turning to the issue of Article 8, the Court noted that it was undisputed that the
relationships of a same-sex couple like that of the applicants falls within the notion of
‘private life’ within the meaning of Article 8.13 However, the Court had not previously
found that such a relationship also fell within the notion of ‘family life’.14 Nonetheless
the Court found that there had been a rapid evolution of social attitudes towards
same-sex couples in many States. As noted above, a considerable number of States
have afforded legal recognition to same-sex couples and provisions of Eu law also
reflect a growing tendency to include same-sex couples in the notion of ‘family’. In
view of this evolution, the Court considered it artificial to maintain the view that a
same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8. Consequently
the relationship of the applicants, a cohabiting same-sex couple living in a stable de
facto partnership, fell within the notion of ‘family life’.15
The Court then examined the impact of Article 14. It turned first to the issue of
whether the applicants were in a relevantly similar position to a couple of the opposite
sex.16 It started from the premise that same-sex couples are just as capable as different-
sex couples of entering into stable committed relationship and, therefore, they were
in a relevantly similar situation to a different-sex couple as regards their need for legal
recognition and protection of their relationship.
The applicants argued that they were discriminated against as a same-sex couple,
firstly, in that they still did not have access to marriage. However the Court rejected
the view that, insofar as not derived from Article 12, a right to marry might be derived
from Article 14 taken in conjunction with Article 8. It pointed out that, because the
Convention was to be read as...
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