JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN AND JEBENS ,,
1. We have voted against point 6 of the operative part of the judgment. We cannot agree with the majority that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8, for the following reasons. 2. In this very important case, the Court, after a careful examination of previous case-law, has taken a major step forward in its jurisprudence by extending the notion of “family life” to same-sex couples. Relying in particular on developments in European Union law (see Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 concerning the right of citizens of the Union and their family members to move and reside freely within the territory of the member States), the Court identified in paragraph 93 of the judgment “a growing tendency to include same-sex couples in the notion of ‘family’”.
3. The Court solemnly affirmed this in paragraph 94 of the judgment:
“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.”
4. The lack of any legal framework prior to the entry into force of the Registered Partnership Act (“the Act”) raises a serious problem. In this respect we note a contradiction in the Court’s reasoning. Having decided in paragraph 94 that “the relationship of the applicants ... falls within the notion of ‘family life’”, the Court should have drawn inferences from this finding. However, by deciding that there has been no violation, the Court at the same time endorses the legal vacuum at stake, without imposing on the respondent State any positive obligation to provide a satisfactory framework, offering the applicants, at least to a certain extent, the protection any family should enjoy.
5. In paragraph 99, the Court also decided of its own motion the following:
“... same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.”
6. The applicants complained not only that they were discriminated against in that they were denied the right to marry, but also – and this is important – that they did not have any other possibility of having their relationship recognised by law prior to the entry into force of the Act.
7. We do not want to dwell on the impact of the Act, which came into force only in 2010, and in particular on the question whether the particular features of this Act, as identified by the Court in paragraphs 18 to 23 of the judgment, comply with Article 14 of the Convention taken in conjunction with Article 8, since in our view the violation of the combination of these provisions occurred in any event prior to the entry into force of the Act.
8. Having identified a “relevantly similar situation” (see paragraph 99 of the judgment), and emphasised that “differences based on sexual orientation require particularly serious reasons by way of justification” (see paragraph 97), the Court should have found a violation of Article 14 of the Convention taken in conjunction with Article 8 because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation (see paragraph 80). However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the “existence or non-existence of common ground between the laws of the Contracting States” (see paragraph 98) is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation. Indeed, it is only in the event that the national authorities offer grounds for justification that the Court can be satisfied, taking into account the presence or the absence of a common approach, that they are better placed than it is to deal effectively with the matter.
9. Today it is widely recognised and also accepted by society that same sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage (see paragraph 4 of this dissenting opinion) would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits.
10. Consequently, in our view, there has been a violation of Article 14 of the Convention taken in conjunction with Article 8.
CONCURRING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KOVLER
I voted together with my colleagues in favour of finding no violation of Article 12 of the Convention. However, I cannot subscribe to some of the arguments set out in the judgment in reaching that conclusion.
1. Thus, I am unable to share the view that “looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women” (see paragraph 55 of the judgment).
By Article 31 § 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”), which lays down the general rule on interpretation of international treaties, “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.
In my view, “the ordinary meaning to be given to the terms of the treaty” in the case of Article 12 cannot be anything other than that of recognising that a man and a woman, that is, persons of opposite sex, have the right to marry. That is also the conclusion I reach on reading Article 12 “in the light of its object and purpose”. Indeed, Article 12 associates the right to marry with the right to found a family.
Article 31 § 3 (b) of the Vienna Convention provides that, as well as the context, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” must be taken into account. I do not consider that this provision of the Vienna Convention can be relied on in support of the conclusion set out in paragraph 55 of the judgment. The fact that a number of States, currently six, provide for the possibility for homosexual couples to marry cannot in my opinion be regarded as a “subsequent practice in the application of the treaty” within the meaning of the provision in question.
Literal interpretation, which, according to the Vienna Convention, represents the “general rule of interpretation”, thus precludes Article 12 from being construed as conferring the right to marry on persons of the same sex.
I come to the same conclusion if I interpret Article 12 by reference to other rules of interpretation, although such rules, as is rightly noted in the title of Article 32 of the Vienna Convention, are merely supplementary means of interpretation, and literal interpretation remains the general rule (Article 31 of the Vienna Convention).
In accordance with Article 32 of the Vienna Convention, recourse may be had to supplementary means of interpretation, particularly in order to “determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.
Bearing in mind that supplementary means of interpretation include, as stated in Article 32 of the Vienna Convention, “the preparatory work of the treaty and the circumstances of its conclusion”, I consider that the so-called historical interpretation to which Article 32 of the Vienna Convention refers can only serve to “confirm the meaning resulting from the application of Article 31” (Article 32).
There is therefore no doubt in my mind that Article 12 of the Convention cannot be construed in any other way than as being applicable solely to persons of different sex. Admittedly, the Convention is a living instrument which must be interpreted in a “contemporary” manner, in the light of present-day conditions (see E.B. v. France [GC], no. 43546/02, § 92, 22 January 2008, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §§ 74 75, ECHR 2002-VI). It is also true that there have been major social changes in the institution of marriage since the adoption of the Convention (see Christine Goodwin, cited above, § 100). However, as the Court held in Johnston and Others v. Ireland (18 December 1986, § 53, Series A no. 112), while the Convention must be interpreted in the light of present-day conditions, the Court cannot, by means of an evolutive interpretation, “derive from [it] a right that was not included therein at the outset”.
2. Nor can I accept the following statement:
“[r]egard being had to Article 9 of the Charter ... the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint.” (paragraph 61 of the judgment)
On the contrary, I consider that Article 12 is inapplicable to persons of the same sex.
Admittedly, in guaranteeing the right to marry, Article 9 of the Charter of Fundamental Rights of the European Union (“the Charter”) deliberately omitted any reference to men and women, since it provides that “[t]he right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”.
In my opinion, however, no inferences can be drawn from this as regards the interpretation of Article 12 of the Convention.
The Commentary of the Charter does indeed confirm that the drafters of Article 9 intended it to be broader in scope than the corresponding Articles in other international treaties. However, it should not be forgotten that Article 9 of the Charter guarantees the right to marry and to found a family “in accordance with the national laws governing the exercise of these rights”.
By referring in this way to the relevant domestic legislation, Article 9 of the Charter simply leaves it to States to decide whether they wish to afford homosexual couples the right to marry. However, as the Commentary quite rightly points out, “there is no obstacle to recognise same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages”. In my view, Article 9 of the Charter should therefore have no bearing on the interpretation of Article 12 of the Convention as conferring a right to marry only on persons of different sex.
It is true that the Court has already referred to Article 9 of the Charter in its Christine Goodwin judgment (cited above, § 100). However, in that case the Court considered whether the fact that domestic law took into account, for the purposes of eligibility for marriage, the sex registered at birth, and not the sex acquired following gender reassignment surgery, was a limitation impairing the very essence of the right to marry. After her operation, the applicant lived as a woman and wished to marry a man. The case did not therefore concern marriage between persons of the same sex.
52. In Christine Goodwin (cited above, §§ 100-04) the Court departed from that case-law: it considered that the terms used by Article 12 which referred to the right of a man and woman to marry no longer had to be understood as determining gender by purely biological criteria. In that context, the Court noted that there had been major social changes in the institution of marriage since the adoption of the Convention. Furthermore, it referred to Article 9 of the Charter, which departed from the wording of Article 12. Finally, the Court noted that there was widespread acceptance of the marriage of transsexuals in their assigned gender. In conclusion, the Court found that the impossibility for a post-operative transsexual to marry in her assigned gender violated Article 12 of the Convention.