BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF P.B. AND J.S. v. AUSTRIA
(Application
no. 18984/02)
JUDGMENT
STRASBOURG
22 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of P.B. and J.S. v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 1 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18984/02) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by one Hungarian national, Mr P.B. and one
Austrian national, Mr J.S. (“the applicants”), on 24
April 2002. The President of the Chamber acceded to the applicants’
request not to have their names disclosed (Rule 47 § 3 of the
Rules of Court).
- The
applicants were represented by Mr J. Unterweger, a lawyer practising
in Vienna. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry of Foreign
Affairs.
- By
a decision of 20 March 2008 the Court declared the application
admissible.
- The
Government of Hungary, having been informed by the Registrar of their
right to intervene (Article 36 § 1 of the Convention and Rule 44
§ 1), indicated that they did not intend to do so.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1963 and 1959 respectively and live in
Vienna.
- The
applicants live together in a homosexual relationship. The second
applicant is a civil servant and, for the purpose of accident and
sickness insurance cover, he is insured with the Civil Servants
Insurance Corporation (“the CSIC”) (Versicherungsanstalt
Öffentlicher Bediensteter). On 1 July 1997 the first
applicant asked the CSIC to recognise him as the dependent
(Angehöriger) and to extend the second applicant’s
insurance cover to include him. He submitted that section 56(6) of
the Civil Servants Sickness and Accident Insurance Act (“the
CSSAIA”) (Beamten-Kranken- und Unfallversicherungsgesetz)
only referred to persons of the opposite sex living with the
principally insured person and running the common household without
receiving any payment. But, because there were no good reasons for
excluding persons living in a homosexual relationship from the
privilege of extended insurance cover, section 56(6) should be
interpreted as also including homosexual partners.
- On
2 September 1997 the CSIC dismissed the request, holding that,
because the first applicant was of the same sex as the second
applicant, his request had to be dismissed. This decision was served
on the second applicant who, on 1 October 1997, filed an objection.
- On
21 November 1997 the Mayor of Vienna, acting as the Regional
Governor, quashed the decision on procedural grounds. He held that
the CSIC should have served its decision on the first applicant.
- On
13 January 1998 the CSIC dismissed a request by the first applicant
and this time served the decision on him. The first applicant filed
objections.
- The
mayor of Vienna confirmed the CSIC’s decision on 19 March 1998.
Thereupon the first applicant lodged a complaint with the
Constitutional Court in which he argued that the exclusion, under
section 56(6) of the CSSAIA, of homosexual couples from the
extension of insurance cover was in breach of Article 14, read in
conjunction with Article 8, of the Convention and was therefore
unconstitutional.
- On
15 June 1998 the Constitutional Court declined to deal with the first
applicant’s complaint. Referring to its previous case-law, the
Constitutional Court found that, in the issue at hand, the legislator
had had a very wide margin in which to reach a decision and the
decision taken had been within that margin.
- On
an unspecified date the Constitutional Court granted a request by the
first applicant for the case to be transferred to the Administrative
Court. On 7 September 1998 the first applicant supplemented his
complaint to the Administrative Court.
- On
4 October 2001 the Administrative Court dismissed the first
applicant’s complaint. It found that the authorities had
correctly concluded that section 56(6) of the CSSAIA only applied to
heterosexual partnerships. There was no issue under Article 14, read
in conjunction with Article 8, of the Convention, because Article 8
did not guarantee specific social rights, and the case at issue did
not therefore fall within the ambit of that provision. The exclusion
of homosexual partnerships from the scope of section 56(6) of
the CSSAIA also complied with the principle of equality because that
difference in treatment was justified. While it was true that, where
persons of different sex living together in a household in which one
of them was running that household while not being gainfully
employed, it was, as a rule, safe to conclude that they were
cohabiting in a partnership, that was not the case if two persons of
the same sex were living together in a household. In the absence of
any possibility to register a homosexual partnership, it would have
been necessary to undertake delicate enquiries into the most intimate
sphere of the person concerned. That difference in the factual
situation justified different treatment in law.
- In
proceedings instituted by the Constitutional Court to examine the
constitutionality of two similar provisions to section 56(6) of the
CSSAIA relating to extending insurance cover to relatives, on 10
October 2005 the Constitutional Court decided to quash section
123(8b) of the General Social Security Act (“the GSSA”)
(Allgemeines Sozial-versicherungsgesetz) and section 83(3)
of the Social Security Act for Trade and Commerce (“the TCSSA”)
(Gewerbliches Sozialversicherungsgesetz). The Constitutional
Court explicitly referred to the judgment of the European Court of
Human Rights in the case of Karner v. Austria (see Karner
v. Austria, no. 40016/98, 24 July 2003) and held that the
two provisions in which the extension of insurance cover to unrelated
persons living with the insured were discriminatory because they were
restricted to persons of the opposite sex.
- On
1 August 2006 the Social Rights Amendment Act (“the SRAA”)
(Sozialrechts-Änderungsgesetz) entered into force
amending in particular the GSSA, the TCSSA and also section 56 of the
CSSAIA. A second amendment to section 56 of the CSSAIA entered
into force on 1 July 2007.
II. RELEVANT DOMESTIC LAW
- Before
1 August 2006 section 56(6) of the Civil Servants Sickness and
Accident Insurance Act (Beamten-, Kranken- und
Unfallversicherungs-gesetz), in so far as relevant, provided as
follows:
“(1) Relatives are entitled to
benefits, if they have their ordinary residence in Austria and are
neither health insured under the provisions of this Act nor any other
provision of law ...
...
(6) A person belonging to the group of
parents, ... step-parents and foster parents, children, ...
stepchildren and foster children, grandchildren or brothers and
sisters of the insured or a person of the opposite sex who is not
related to him or her who has been living with him or her in the same
household for at least ten months and since then has been doing the
domestic work for the insured without payment, unless there is a
spouse living in the same household who is able to work, shall be
regarded as a member of the household. Only one person can be a
member in this sense.”
- After
the amendment to the Civil Servants Sickness and Accident Insurance
Act on 1 August 2006, section 56(6) remained the same, but a new
paragraph (6a) was introduced. It read as follows;
“A person who is not a relative of the insured and
who has been living with him or her in the same household for at
least ten month and since then is doing the domestic work for him or
her without payment, unless there is a spouse living in the same
household who is able to work, shall be regarded as a member of the
common household, if
(a) he or she is bringing up one or more
children living in the same household ... or did so for at least four
years;
(b) he or she is entitled to benefits for the
payment of nursing care (at least level 4) pursuant to section 5 of
the Federal Nursing Care Benefits Act or pursuant to the provisions
of the Regional Nursing Care Benefits Act;
(c) he or she is doing nursing work for the
insured who is entitled to benefits (at least level 4) for the
payment of nursing care pursuant to the Federal Nursing Care Benefits
Act or pursuant to the provisions of the Regional Nursing Care
Benefits Act.”
- On
1 July 2007 a further amendment to the Civil Servants Sickness and
Accident Insurance Act entered into force. Section 56(6) no longer
applied to non-related persons, but only to relatives of the insured.
The newly introduced paragraph 6a was only slightly modified. These
provisions, in so far as relevant, read as follows:
“(6) A person belonging to the group of
parents, ... step-parents and foster parents, children, ...
stepchildren and foster children, grandchildren or brothers and
sisters of the insured who has been living with him or her in the
same household for at least ten months and since then has been doing
the domestic work for the insured without payment, unless there is a
spouse living in the same household who is able to work, shall be
regarded as a member of the household. He or she shall also be
considered a member if he or she is no longer able to do the domestic
work. Only one person can be a member in this sense.
(6a) A person who is not a relative of the
insured and who has been living with him or her in the same household
for at least ten month and since then has been doing the domestic
work for him or her without payment, unless there is a spouse living
in the same household who is able to work, shall be regarded as a
member of the common household, if
(a) he or she is bringing up one or more
children living in the same household ... or did so for at least four
years, or
(b) he or she is doing nursing work for the
insured who is entitled to public benefits at least level 4 pursuant
to the Federal Nursing Care Benefits Act or pursuant to the
provisions of the Regional Nursing Care Benefits Act.”
20. The
last amendment to the Civil Servants Sickness and
Accident Insurance Act which entered into force on 1 July 2007 was
accompanied by a transitory provision. Section 217(3) and (4) read as
follows:
“(3) Persons
of the opposite sex and not related to the insured, who, pursuant to
section 56(6) as in force on 30 June 2007, had been entitled to
benefits as relatives and who on that date had already reached
twenty-seven years of age remain entitled to benefits as relatives
until the relevant circumstances change.
(4) Persons
of the opposite sex and not related to the insured, who, pursuant to
section 56(6) as in force on 30 June 2007, had been entitled to
benefits as relatives and who on that date had not yet reached
twenty-seven years of age remain entitled to benefits as relatives
until the relevant circumstances change, but at most until
31 December 2010.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION
WITH ARTICLE 8 OF THE CONVENTION
- The
applicants claimed to be victims of discrimination on the ground of
sexual orientation in that the Administrative Court in its decision
of 4 October 2001 upheld that the insurance cover of the second
applicant only extended to heterosexual partners within the meaning
of section 56(6) CSSAIA. They relied on Article 14 of the Convention
in conjunction with Article 8.
- Article
14 reads as follows:
“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.”
Article
8, in so far as relevant, provides:
“1. Everyone has the right to respect
for his private and family life [and] his home ...
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 ...
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Submissions by the parties
- The
applicants submitted that they had been victims of discrimination
because of the refusal of the Austrian authorities to extend the
second applicant’s health and accident insurance to the first
applicant on grounds of their sexual orientation. This had also been
acknowledged in substance by the Constitutional Court in its judgment
of 10 October 2005. They maintained that, despite the Constitutional
Court’s judgment of 10 October 2005 and the subsequent
amendment to the CSSAIA, they were still victims because same-sex
partners were still excluded from joint insurance if they did not
raise children in the common household. Moreover, the transitional
provision guaranteed the joint insurance to those (male/female)
couples who were entitled to it before the amendment, irrespective of
whether they raised children or not. Given that this was not the case
for same-sex partners they were continuously victims of
discriminatory legislation.
- The
Government did not comment on the merits of the application. They
noted that after the Constitutional Court had, on 10 October 2005,
repealed the two parallel provisions of the General Social Security
Act (GSSA) and the Social Security Act for Trade and Commerce (TCSSA)
and replaced them with section 56(6) of the CSSAIA, a general reform
reformulating the legal provisions on the extension of insurances to
cohabitees had been enacted. On 1 August 2006 and 1 July 2007
amendments to the CSSAIA entered into force, which regulated the
affiliation of a partner to a social security scheme in a
non-discriminatory way.
B. The Court’s assessment
1. Applicability of Article 14
- The
Court points out at the outset that the provision of Article 8 of the
Convention does not guarantee as such a right to have the benefits
deriving from a specific social security insurance scheme extend to a
co habiting partner (see Stec and Others v. the United
Kingdom [GC], no. 65731/01, § 53, ECHR 2006 VI).
- It
is undisputed in the present case that the relationship of a same-sex
couple like the applicants’ falls within the notion of “private
life” within the meaning of Article 8. However, in the light of
the parties’ comments the Court finds it appropriate to address
the issue whether their relationship also constitutes “family
life”.
- The
Courts reiterates its established case-law in respect of
different sex couples, namely that the notion of family under
this provision is not confined to marriage-based relationships and
may encompass other de facto “family” ties where
the parties are living together out of wedlock. A child born out of
such a relationship is ipso jure part of that “family”
unit from the moment and by the very fact of his birth (see Elsholz
v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII;
Keegan v. Ireland, 26 May 1994, § 44, Series A no.
290; and also Johnston and Others v. Ireland, 18 December
1986, § 56, Series A no. 112).
- In
contrast, the Court’s case-law has only accepted that the
emotional and sexual relationship of a same-sex couple constitutes
“private life” but has not found that it constitutes
“family life”, even where a long term relationship
of cohabiting partners was at stake. In coming to that conclusion,
the Court observed that despite the growing tendency in a number of
European States towards the legal and judicial recognition of stable
de facto partnerships between homosexuals, given the existence
of little common ground between the Contracting States, this was an
area in which they still enjoyed a wide margin of appreciation (see
Mata Estevez v. Spain (dec.), no. 56501/00, ECHR 2001-VI,
with further references). In the case of Karner (cited above,
§ 33), concerning the succession of a same sex couples’
surviving partner to the deceased’s tenancy rights, which fell
under the notion of “home”, the Court explicitly left
open the question whether the case also concerned the applicant’s
“private and family life”.
- The
Court notes that since 2001, when the decision in Mata Estevez was
given, a rapid evolution of social attitudes towards same-sex couples
has taken place in many member States. Since then a considerable
number of member States have afforded legal recognition to same-sex
couples (see above, paragraphs 27-30). Certain provisions of EU law
also reflect a growing tendency to include same-sex couples in the
notion of “family” (see paragraph 26 above).
- In
view of this evolution the Court considers it artificial to maintain
the view that, in contrast to a different-sex couple, 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, falls within the notion of “family life”,
just as the relationship of a different-sex couple in the same
situation would.
- With
regard to Article 14, which was relied on in the present case, the
Court reiterates that it only complements the other substantive
provisions of the Convention and the Protocols thereto. It has no
independent existence because it has effect solely in relation to
“the enjoyment of the rights and freedoms” safeguarded by
those provisions (see, among many other authorities, Sahin v.
Germany [GC], no. 30943/96, § 85, ECHR 2003 VIII).
The application of Article 14 does not necessarily presuppose the
violation of one of the substantive rights protected by the
Convention. It is necessary but also sufficient for the facts of the
case to fall “within the ambit” of one or more of the
Articles of the Convention (see Petrovic v. Austria, 27
March 1998, § 22, Reports of Judgments and Decisions
1998 II).
- The
prohibition of discrimination enshrined in Article 14 thus extends
beyond the enjoyment of the rights and freedoms which the Convention
and the Protocols thereto require each State to guarantee. It also
applies to those additional rights, falling within the general scope
of any Convention Article, for which the State has voluntarily
decided to provide. This principle is well entrenched in the Court’s
case-law (see E.B. v France [GC], no. 43546/02, §
48, ECHR 2008 ... with further references).
- The
present case concerns the possibility to extend accident and sickness
insurance cover under a statutory insurance scheme to cohabiting
partners, a possibility which the legal provisions impugned by the
applicants recognise under certain conditions. Moreover, the
possibility to extend insurance cover, in the Court’s view, has
to be qualified as a measure intended to improve the principally
insured person’s private and family situation. The Court
therefore considers that the extension of insurance cover at issue
falls within the ambit of Article 8.
- Consequently,
the State, which has gone beyond its obligations under Article 8 in
creating such a right - a possibility open to it under Article 53
of the Convention - cannot, in the application of that right, take
discriminatory measures within the meaning of Article 14 (see,
mutatis mutandis, E.B. v. France, cited above, §49).
- Because
the applicants complain that they are victims of a difference in
treatment which allegedly lacks objective and reasonable
justification as required by Article 14 of the Convention, that
provision, taken in conjunction with Article 8, is applicable.
2. Compliance with Article 14 read in conjunction with
Article 8
- The
applicants submitted that they had been victims of discrimination
because it had been impossible to have the cover of the second
applicant’s health and accident insurance extended to include
the first applicant. This was because, under section 56(6) of the
CSSAIA, as in force until 1 August 2006, such an extension was only
open to cohabitees of the opposite sex and because this
discriminatory situation did not effectively change after the entry
into force of an amendment to the relevant provisions which imposed
conditions they could not fulfil.
- The
Government did not comment on the situation in law until the entry
into force of the modifications of the CSSAIA on 1 August 2006 and
1 July 2007 respectively and argued that from that time on the
applicants could no longer claim to be victims of discrimination,
because the amended provisions were formulated in a gender-neutral
way.
- The
Court reiterates that, for the purposes of Article 14, a difference
in treatment is discriminatory if it has no objective and reasonable
justification, that is, if it does not pursue a legitimate aim or if
there is not a reasonable relationship of proportionality between the
means employed and the aim sought to be realised (see Petrovic,
cited above, p. 586, § 30). Furthermore, very weighty reasons
would have to be put forward before the Court could regard a
difference in treatment based exclusively on the ground of sex as
compatible with the Convention (see Burghartz v. Switzerland,
cited above, § 27; Karlheinz Schmidt v. Germany, 18 July
1994, § 24, Series A no. 291-B; Salgueiro da Silva Mouta v.
Portugal, no. 33290/96, § 29, ECHR 1999-IX; Smith
and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §
94, ECHR 1999-VI; Fretté v. France, no. 36515/97,
§§ 34 and 40, ECHR 2002-I; and S.L. v. Austria,
no. 45330/99, § 36, ECHR 2003-I). Just like differences
based on sex, differences based on sexual orientation require
particularly serious reasons by way of justification (see Karner
v. Austria, no. 40016/98, § 36, ECHR 2003 IX).
- In
order to determine whether the difference in treatment that the
applicants complained of had an objective and reasonable
justification, the Court will consider each of the periods
separately.
(a) First period: until the entry into
force of section 56(6a) of the CSSAIA on 1 August 2006
- The
Court notes that on 1 July 1997 the first applicant asked the CSIC to
recognise him as a dependent of the second applicant and to extend
the latter’s health and accident insurance cover to him. On 2
September 1997 the CSIC dismissed the request, holding that, because
the first applicant was of the same sex as the second applicant, he
did not qualify as a dependent within the meaning of section 56(6) of
the CSSAIA. It did not accept the applicants’ argument that
section 56(6) should be interpreted so as to also include homosexual
relationships. The appeal authorities also refuted this argument. The
Administrative Court, in its judgment of 4 October 2001 found
that the exclusion of homosexual partnerships from the scope of
section 56(6) of the CSSAIA also complied with the principle of
equality because that difference in treatment was justified. It
argued that, while it was true that where persons of different sex
living together in a household in which one of them was running that
household and not being gainfully employed, it was, as a rule, safe
to conclude that they were cohabiting in a partnership, that was not
the case if two persons of the same sex were living together in a
household. In the absence of any possibility to register a homosexual
partnership, it would be necessary to undertake delicate enquiries
into the most intimate sphere of the person concerned. That
difference in the factual situation justified different treatment in
law.
- The
Court further observes that the Government themselves have not given
any justification for the difference in treatment experienced by the
applicants and that experienced by cohabitees of the opposite sex.
- The
Court reiterates that in the case of Karner v. Austria, which
bears certain similarities to the present case, it found that in
cases in which the margin of appreciation afforded to States is
narrow, as is the position where there is a difference in treatment
based on sex or sexual orientation, the principle of proportionality
does not merely require that the measure chosen is in principle
suited for realising the aim sought. It must also be shown that it
was necessary in order to achieve that aim to exclude certain
categories of people - in this instance persons living in a
homosexual relationship - from the scope of application of a specific
provision of law (see Karner, cited above, § 41). It does
not consider, however, that the Government or the domestic
authorities and courts have advanced any arguments that would allow
such a conclusion.
Accordingly,
there was a breach of Article 14, read in conjunction with Article 8,
in respect of the period in question.
(b) Second period: from the entry into
force of section 56(6a) of the CSSAIA on 1 August 2006 until the
entry into force of the amended section 56(6) and (6a) of the CSSAIA
on 30 June 2007
- The
Court considers that the discriminatory character of the CSSAIA
established above did not change after the first amendment, because
unmarried male/female couples qualified for preferential treatment,
whereas unmarried couples of the same sexual orientation,
irrespective of their sexual orientation, only qualified if they were
raising children together. Even though the situation improved as a
result of that amendment because homosexual couples were in principle
no longer excluded from the scope of application of section 56 of the
CSSAIA, there remained a substantial difference in treatment for
which no sufficient justification had been advanced by the
Government.
- Accordingly,
there was also a breach of Article 14, read in conjunction with
Article 8, in respect of this period.
(c) Third period: after the entry into
force of the amended section 56(6) and (6a) of the CSSAIA on 1 July
2007
- The
Court observes that the newly amended version of the CSSAIA as in
force from 1 July 2007 onwards omitted the explicit reference to
partners of the opposite sex in section 56(6a) and restricted the
scope of application of section 56(6) to relatives. It is thus
formulated in a neutral way concerning the sexual orientation of
cohabitees.
- The
applicants submitted that, following the above-mentioned amendment,
the legal situation is still discriminatory, because the opportunity
to extend health and accident insurance cover has become more
difficult following the amendment because additional conditions were
introduced which not all couples, and in particular the applicants,
fulfil. Moreover, they were also victims of discrimination because
persons to whom the extension of insurance cover had been granted
before the entry into force of the amendment continued to benefit
from an extension of the insurance cover.
- As
regards the applicants’ first argument, the Court observes that
Article 14 of the Convention only guarantees a right to equal
treatment of persons in relatively similar situations but does not
guarantee access to specific benefits. It further observes that the
condition to which the applicants refer, the raising of children in
the common household, is formulated in a neutral way and the
applicants did not argue that under Austrian law homosexuals are
excluded from caring for children.
- As
regards the applicants’ second argument, the Court observes
that, according to the transitory provision of section 217 of the
CSSAIA, the continued application of section 56(6a) is restricted to
persons having passed a certain age limit and where the relevant
circumstances remain the same, and also applies to those who will not
have yet reached the age limit by 31 December 2010. The Court
cannot find that it is incompatible with the requirements of Article
14 for those who have previously been entitled to a specific benefit
under the law in force at the time to be given sufficient time to
adapt to changing circumstances.
- In
this context, the Court notes its case-law according to which the
principle of legal certainty, which is necessarily inherent in the
law of the Convention, may dispense States from questioning legal
acts or situations that antedate judgments of the Court declaring
domestic legislation incompatible with the Convention. The same
considerations apply where a constitutional court annuls domestic
legislation as being unconstitutional (see Marckx v. Belgium,
13 June 1979, § 58, Series A no. 31). Moreover, it has also been
accepted, in view of the principle of legal certainty that a
constitutional court may set a time-limit for the legislator to enact
new legislation with the effect that an unconstitutional provision
remains applicable for a transitional period (see Walden v.
Liechtenstein (dec.), no. 33916/96, 16 March 2000; and J.R.
v. Germany (dec.), no. 22651/93, Decisions and Reports 83-A).
- The
Court therefore considers that from 1 July 2007 the applicants were
no longer subject to an unjustified difference in treatment as
regards the benefit of extending health and accident insurance cover
to the second applicant. Accordingly there was no breach of Article
14, read in conjunction with Article 8, in respect of this period.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ
IN CONJUNCTION WITH ARTICLE 1 PROTOCOL No. 1
- The
applicants also complained under Article 14 of the Convention, read
in conjunction with Article 1 of Protocol No. 1, that the
Administrative Court’s decision violated their right to the
peaceful enjoyment of their property. Article 1 of Protocol No. 1, in
so far as relevant, reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest ....”
- The Court observes that neither the Government nor the
applicants submitted any observations in this respect. Having regard
to its finding under Article 14, read in conjunction with Article 8,
the Court considers that it is not necessary to examine whether, in
this case, there has been a violation of Article 14 read in
conjunction with Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed pecuniary damage in the amount of 28,375.12 euros
(EUR) for the period from 1993 until May 2008 plus EUR 81.52 per
month from that date onwards. They submitted that, because it had
been impossible to extend the second applicant’s health and
accident insurance cover to the first applicant, the first applicant
had had to subscribe to an individual health insurance for himself
which had cost him in contributions EUR 11,375.12 from 1993 until May
2008 plus a lump sum for non-reimbursed vaccination costs in the
amount of EUR 1,000 and costs for medical care abroad in the amount
of EUR 16,000. Lastly, they claimed EUR 81.52 per month, from May
2008 onwards, which was the monthly contribution of the first
applicant to his health and accident insurance scheme.
- The
Government submitted that that claim was excessive because the first
applicant could have avoided a large portion of the amount claimed
for the individual health insurance contract by subscribing to the
general social insurance scheme. The monthly contributions under that
scheme were moderate and could even have been reduced in the event of
hardship. Moreover, the period for which reimbursement of those costs
could be claimed only started in July 1997, when the applicants first
applied to include the first applicant in the second applicant’s
health insurance scheme. It must also be taken into account that even
if the extension to the insurance cover had been granted, additional
contributions for such an extension would have had to have been paid
from January 2001 onwards. Such hypothetical costs would have had to
have been offset against the applicants’ reimbursement claim.
The claim for vaccination costs was unfounded, because, in any event,
such costs were not covered by the insurance scheme to which the
first applicant wished to adhere. The lump sum claim for medical
treatment abroad was equally unfounded because normally such
treatment was also covered by a health clause in a private travel
insurance contract and, in any event, the applicants failed to
substantiate that claim.
- The
Court observes first that it has found a breach of Article 14, read
in conjunction with Article 8, only in respect of the period until 30
June 2007. Thus, it cannot make any award for claims which relate to
the subsequent period. The Court further observes that, as regards
the claims for reimbursement of vaccination costs and costs of
medical treatment abroad the applicants have merely indicated a lump
sum and failed to substantiate their claim. Thus, no award for
pecuniary damage can be made in this respect. Nevertheless, the Court
is convinced that the applicants, as a consequence of the refusal of
the request for extension of the second applicant’s health and
accident insurance cover to the first applicant and the ensuing
necessity for him to subscribe to another insurance scheme, have
suffered financial loss. However, the sums claimed by the applicants
are excessive because it seems reasonable, as argued by the
Government, to start the period for which reimbursement may in
principle be granted only when the applicants made a concrete step to
have the insurance cover extended in 1997 and to deduct costs the
applicants would have incurred if the extension of the insurance
cover had actually been granted. Having regard to the above
considerations the Court grants, on an equitable basis, EUR 5,000
under this head plus any tax that may be chargeable on this amount.
- The
applicants claimed non-pecuniary damage in the amount of EUR 36,000.
- The
Government considered this claim excessive and found that, in the
circumstances of the present case, the finding of a violation
constituted in itself sufficient redress.
- The
Court considers that the applicants must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards them EUR 10,000
under this head plus any tax that may be chargeable on this amount.
B. Costs and expenses
- The
applicants claimed costs and expenses incurred in the domestic
proceedings in the amount of EUR 5,408.62, including Turnover Tax,
and costs and expenses incurred in the proceedings before the Court
in the amount of EUR 10,273.67, also including Turnover Tax. In
addition, the applicants claimed a lump sum of EUR 2,500 for out of
pocket expenses for them and EUR 500 for translation.
- The
Government disputed this claim as being excessive. In their view it
should be taken into account that the submissions made before the
domestic authorities and courts and those made before the Court were
to a large extent identical.
- The
Court finds that no reimbursement of out of pocket expenses and costs
for translation can be granted because the applicants have failed to
submit receipts in order to substantiate these claims.
- As
regards the claim for costs and expenses incurred in the domestic
proceedings and before the Court, the Court reiterates that,
according to its case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred in order
to prevent or redress the violation found and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicants EUR 4,500 in respect of the
domestic proceedings and EUR 5,500 in respect of the Convention
proceedings. Consequently, the Court awards the applicants EUR 10,000
in respect of costs and expenses, plus any tax that may be chargeable
to them.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by five votes to two that there has been a
violation of Article 14, read in conjunction with Article 8 of the
Convention, as regards the period until 1 August 2006;
- Holds unanimously that there has been a
violation of Article 14, read in conjunction with Article 8 of the
Convention, as regards the period from 1 August 2006 until 30
June 2007;
- Holds unanimously that there has been no
violation of Article 14, read in conjunction with Article 8 of the
Convention, as regards the period from 1 July 2007 onwards;
- Holds unanimously that it is not necessary to
examine the application also under Article 14 of the Convention, read
in conjunction with Article 1 of Protocol No. 1;
- Holds unanimously
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand
euros), plus any tax that may be chargeable, in respect of pecuniary
damage, EUR 10,000 (ten thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage and EUR 10,000 (ten
thousand euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 22 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges Vajić
and Malinverni is annexed to this judgment.
C.L.R.
S.N.
JOINT PARTLY DISSENTING OPINION OF JUDGES VAJIĆ AND
MALINVERNI
(Translation)
We
are unable to agree with the majority’s opinion that, in the
present case, there had been a violation of Article 8, taken together
with Article 14 of the Convention, during the “first
period”, running from 1 July 1997 to 1 August 2006, date
of the entry into force of Article 56 (6a) of the CSSAIA (see
paragraphs 36 to 38 of the judgment).
It
was on 1 July 1997 that the first applicant asked the CSIC to
recognise him as a dependant of the second applicant and to extend
the latter’s health and accident insurance cover to him (see
paragraph 7 of the judgment).
We
find it quite understandable that, at the material time, the Austrian
authorities should have denied the first applicant’s request on
the ground that Article 56 (6) of the CSSAIA could not be interpreted
so as to include homosexual relationships. To
be sure, at that time very few European States had enacted
legislation on registered partnerships (such as the French PACS),
and there was also a very small number of States that treated on an
equal footing, for social security purposes, two cohabiting persons
of the opposite sex and two homosexuals living together.
At
the present time, apart from the six member States that grant
same-sex couples the right to marry, namely Belgium, the Netherlands,
Norway, Portugal, Spain and Sweden (see the case of Schalk and
Kopf v. Austria, no. 30141/04, 24 June 2010, §
27), only thirteen countries have enacted a law on registered
partnerships. Most of those have only done so since 2000: Belgium,
Luxembourg, Switzerland and the United Kingdom in 2004, Estonia in
2005, and the Czech Republic in 2006. Only Denmark, Norway and Sweden
had enacted such legislation in the 1990s.
It
can thus be said that at the material time there was no European
consensus as to whether homosexual couples should be treated on an
equal footing with heterosexual couples, even unmarried ones, for
various legal purposes in general, and for that of social security in
particular.
In
these conditions we find it difficult to accept that the decisions by
the various competent Austrian authorities rejecting the applicants’
request, all those decisions having been issued between 1997 and 2001
(see paragraphs 8 to 14), may be regarded as contrary to
Articles 8 and 14 taken together. As the Constitutional
Court found in its judgment of 15 June 1998, in the
absence of a European consensus, “the legislator had had a very
wide margin in which to reach a decision and the decision taken had
been within that margin” (paragraph
12).
