Same-Sex Marriage

The applicants, two male Dutch citizens married under Dutch civil law since 2002, wished to renew their marriage in Austria, where they have been living for several years. They claimed that, when dealing with local authorities, but also in their social and business life, they are, again and again, confronted with doubts as to whether their marriage is valid.

The Governor of Tyrol (Landeshauptmann von Tirol), acting as competent registry office of last instance, rejected to allow the applicants to renew their marriage under Austrian law, since according to Austrian civil law, marriage is restricted to heterosexual relationships. As regards same-sex couples, they can enter a so-called registered partnership (eingetragene Partnerschaft) under the Registered Partnership Act of 2009 (Eingetragene Partnerschaften-Gesetz).

The applicants lodged a constitutional complaint against this decision, claiming that they were discriminated against on grounds of their sex and their sexual orientation. They maintained that Austrian legislation was contrary to the constitutional principle of equality, as laid down in Article 7 of the Federal Constitutional Act (Bundes-Verfassungsgesetz), Article 14 read in conjunction with Article 8 of the European Convention on Human Rights (ECHR) as well as Article 21 of the Charter of Fundamental Rights of the European Union (CFR).

The Constitutional Court endorsed the Governor's finding that same-sex marriage is unknown to the Austrian legal system. Nor was the Governor obliged, by virtue of the principle of equality, to interpret Austrian civil law as allowing same-sex partners to marry, given that neither Article 14 ECHR nor Article 7 of the Federal Constitutional Act impose an obligation to grant a same-sex couple such as the applicants access to marriage.

With a view to Article 21 CFR, the Constitutional Court recalled that, in the scope of application of the Charter of Fundamental Rights of the European Union, the rights guaranteed by the Charter may be invoked as constitutionally guaranteed rights, provided that the guarantee enshrined in the Charter is similar in its wording and purpose to rights that are guaranteed by the Austrian Federal Constitution, as is the case with Article 21 CFR.

However, the Constitutional Court found that the national provisions relevant to the case did not implement EU law within the meaning of Article 51.1 CFR, as interpreted by the Court of Justice of the European Union in its settled case-law; consequently, Article 21 CFR proved to be inapplicable in the present case. The Constitutional Court added that, even if the Charter were applicable, the provisions at issue (as construed by the Governor) would not be in violation of Article 21 CFR, owing to the wide margin of appreciation granted to the Contracting States relating to the issue of same-sex marriage.