Sentenza 26 ottobre 2017
Corte EDU: Non vi è discriminazione nel limitare alle coppie dello stesso sesso la costituzione di unioni civili registrate; la preclusione legiferata dall'Austria per le coppie eterosessuali non viola gli articoli 8 e 14 della CEDU
CORTE EDU, CASO RATZENBÖCK AND
SEYDL V AUSTRIA, 26 OTTOBRE 2017 (RICORSO N. 29475/12)
“2. The Court’s assessment
(b) Compliance with Article 14 of the Convention read in conjunction with Article 8
(iii) Application of the general principles to the present case
38. The applicants claimed that they had been discriminated against as a different-sex couple, as they had no possibility of entering into a registered partnership, an institution they preferred to marriage. The Court therefore has to examine first whether, for the purpose of Article 14 of the Convention, the applicants were in a comparable situation to same-sex couples who have access to registered partnerships and, if so, whether any difference in treatment was justified.
39. The Court accepts that different-sex couples are 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 (see paragraph 35 above).
40. The Court observes that the exclusion of different-sex couples from the registered partnership has to be examined in the light of the overall legal framework governing the legal recognition of relationships. The registered partnership was 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 legal recognition (see paragraph 13 above). Thus, the Registered Partnership Act (see paragraphs 13-16 above) in fact counterbalances the exclusion of same-sex couples in terms of access to legal recognition of their relationships which existed before the Act entered into force in 2010. In the case of Schalk and Kopf the Court found that the Registered Partnership Act gave the applicants, a same-sex couple, the possibility of obtaining a legal status equal or similar to marriage in many respects. The Court concluded that there was no indication that the respondent State had exceeded its margin of appreciation in its choice of rights and obligations conferred by the registered partnership (see Schalk and Kopf, cited above, § 109). Thus, the institutions of marriage and the registered partnership are essentially complementary in Austrian law. In this connection, the Court observes further that, as has already been pointed out in Schalk and Kopf, the legal status initially provided for by the Registered Partnership Act was equal or similar to marriage in many respects, and there were only slight differences in terms of material consequences (ibid., § 109). Moreover, the Court observes that the legal frameworks governing marriage and the registered partnership were further harmonised after the Court had adopted its judgment in the case of Schalk and Kopf and also after the applicants had lodged the present application, and that to date no substantial differences remain (see paragraph 16 above).
41. The applicants, as a different-sex couple, have access to marriage. This satisfies – contrary to same-sex couples before the enactment of the Registered Partnership Act – 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.
42. This being so, the Court considers that the applicants, being a different-sex couple to which the institution of marriage is open while being excluded from concluding a registered partnership, are not in a relevantly similar or comparable situation to same-sex couples who, under the current legislation, have no right to marry and need the registered partnership as an alternative means of providing legal recognition to their relationship. There has therefore been no violation of Article 14 taken in conjunction with Article 8 of the Convention.”