6. SAME-SEX UNREGISTERED PARTNERS
6.4. Same-sex unregistered partners under the ECHR
In 2010, in its ruling in Schalk & Kopf v. Austria, the ECtHR held that the relationship of ‘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.’134 Since then, this has formed the basis for most claims brought by unregistered same-sex couples seeking to require EConHR signatory states to treat them in the same way as unregistered opposite-sex partners and, in some cases, even in the same way as married opposite-sex couples, with regard to a number of legal rights and entitlements. Of course, it should be noted that even prior to the Schalk & Kopf v. Austria
132 In Case C-249/96, Grant v. South-West Trains Ltd, ECLI:EU:C:1998:63, para. 35, the CJEU held that ‘in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex’
and, on this basis, ‘an employer is not required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex’. For comments on Grant see A.
Koppelman, ‘The Miscegenation Analogy in Europe, or, Lisa Grant meets Adolf Hitler’ in R. Wintemute and M.
Andenas (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Hart, 2001); N. Bamforth, ‘Sexual Orientation After Grant v Southwest Trains’ (2000) 63 Modern Law Review 694; M.
Bell, ‘Shifting Conceptions of Sexual Discrimination at the Court of Justice’ (1999) 5 European Law Journal 63. The case is now only important for historical purposes: shortly after the case was decided, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16 was promulgated, which prohibits discrimination based on sexual orientation in the area of employment.
133 A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) 21 Columbia Journal of European Law 195, pp. 214 and 221-222; J. Rijpma and N.
Koffeman, ‘Free Movement Rights for Same-Sex Couples Under EU Law: What Role to Play for the CJEU?’ in D.
Gallo, L. Paladini, P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014), p. 103. It has been noted that ‘[v]ery few comprehensive sources that address a cross-border element exist in the fields of property, succession, taxation, inheritance, employment benefits and pensions’ – Report ‘Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU’ (November 2019) (prepared by Dr Neža Kogovšek Šalamon), available at https://ec.europa.eu/info/sites/info/files/mapping_of_studies_on_the_difficulties_for_lgbti_people_in_cross-border_situations_in_the_eu.pdf, pp. 3 and 37.
134 Schalk and Kopf v. Austria, no. 30141/04, 24 June 2010, para. 94. For an analysis of the evolution of the concept of ‘family life’ in ECtHR case-law (especially in relation to same-sex couples) see L. Hodson, ‘Ties That Bind: Towards a Child-Centred Approach to Lesbian, Gay, Bi-Sexual and Transgender Families under the ECHR’, (2012) 20 International Journal of Children’s Rights 501; P. Johnson, Homosexuality and the European Court of Human Rights (Routledge, 2014), pp. 113-118.
pronouncement, the ECtHR had required EConHR signatory states to treat same-sex and opposite-sex couples in the same way, with regard to specific entitlements.135
6.4.1. Family reunification rights
In Pajić v. Croatia,136 the ECtHR held that Croatia was in breach of Article 8 EConHR read in conjunction with Article 14 EConHR, as a result of the fact that it discriminated against unregistered same-sex couples with regard to family reunification.137 The impugned Croatian legislation reserved the possibility of applying for a residence permit for family reunification to different-sex couples (whether married or not) and in this way tacitly excluded same-sex couples from its scope. This amounted to discrimination based on sexual orientation with regard to the enjoyment of the right to respect for private and family life which – according to the ECtHR – could not be justified. This demonstrates that, although EConHR signatory states are free to determine their immigration policies and the categories of family members that can be admitted and granted a residence permit on the basis of family reunification, their policies and categories must not discriminate on the basis of any of the grounds prohibited by Article 14 EConHR, including sexual orientation. Accordingly, if a State grants family reunification rights to the unregistered opposite-sex partners of persons who reside in its territory, the EConHR requires it to do the same with respect to their unregistered same-sex partners.
This is in line with a previous recommendation of the PACE, according to which the Committee of Ministers of the Council of Europe should urge Member States of the latter ‘to take such measures as are necessary to ensure that bi-national lesbian and gay couples are accorded the same residence rights as bi-national heterosexual couples’.138
However, what happens when unregistered same-sex partners are treated in the same way as unregistered opposite-sex partners, but worse than spouses, in a State which does not allow same-sex marriage? Should the unregistered same-sex partners be treated in the same way as unregistered opposite-sex partners, or should they receive the same treatment that is reserved for married (obviously opposite-sex) couples? The ECtHR was confronted with this question in Taddeucci and McCall v. Italy.139 The case concerned the refusal of Italy to grant a residence permit on the basis of family reunification to the third-country national same-sex partner of an Italian national. At the time, Italy granted family reunification rights only to married couples and – as is still the case – only allowed marriage between men and women. Accordingly, as the ECtHR observed, all unmarried couples – whether opposite-sex or same-sex – were treated in the same way under the impugned Italian legislation. However, according to the ECtHR, Italy treated in the same way two categories of couples (unregistered opposite-sex and same-sex partners) which were not in an analogous position: opposite-sex couples had the option of contracting marriage in Italy, whereas this was not possible for same-sex couples. This meant that these two categories of couple could not be treated in the same way for the purposes of family reunification – unregistered same-sex partners had a legal disability (no access to marriage) which precluded them from choosing to bring themselves into a
135 This was in two cases involving the issue of succession to tenancies: Karner v. Austria, no. 40016/98, 24 July 2003 and Kozak v. Poland, no. 13102/02, 2 March 2010.
136 Pajić v. Croatia, no. 68453/13, 23 February 2016.
137 For an analysis of the use by the ECtHR of Article 14 ECHR in cases involving LGB individuals and same-sex couples see P. Johnson, above n. 19,, chapter 5 (note, however, that this only covers case-law until 2014).
138 PACE Recommendation 1470 (2000) ‘Situation of gays and lesbians and their partners in respect to asylum and immigration in the member states of the Council of Europe’, para. 7.2.e.
139 Taddeucci and McCall v. Italy, no. 51361/09, 30 June 2016.
position to claim family reunification rights under Italian law, whereas this was possible for unmarried/unregistered opposite-sex couples. The Court held that by treating these two categories of couples in the same way, Italy was discriminating against same-sex couples on the basis of their sexual orientation with regard to the enjoyment of the right to respect for private and family life and was thus in violation of Article 14 EConHR read in conjunction with Article 8 EConHR. Hence, States which have not opened marriage to same-sex couples, can reserve family reunification rights for married opposite-sex couples and, thus, deny these to unmarried opposite-sex couples, but must extend family reunification rights to unmarried same-sex couples (who, simply, do not have the option of getting married).140
6.4.2. Other benefits and entitlements
In Karner v. Austria,141 the Austrian Supreme Court’s interpretation of the term ‘life companion’ – for the purposes of the Austrian legislation governing succession to tenancies – as not including the same-sex partner of the deceased official tenant while it did include opposite-sex partners, was held by the ECtHR to breach Article 14 EConHR read in conjunction with Article 8 EConHR.142 This was because it discriminated against same-sex couples on the basis of their sexual orientation with regard to the enjoyment of their right to respect for their home. Accordingly, the ECtHR has held that opposite-sex and same-opposite-sex unregistered partners cannot be treated differently when it comes to succession to tenancies. This, according to a commentator, ‘certainly emphasises the point that all unmarried and unregistered couples must presumptively be treated equally’.143
Similarly, in P.B. & J.S. v. Austria,144 the Court held that opposite-sex and same-sex unregistered partners must be treated in the same way for the purposes of joint health and accident insurance cover. In that case, the refusal of Austrian authorities to extend the health and accident insurance of a person to his/her same-sex partner when this was possible in the case of opposite-sex couples, was held to amount to a violation of Article 14 EConHR read in conjunction with Article 8 EConHR.
In a similar vein, in J.M. v. UK,145 the ECtHR held that the UK authorities were in violation of Article 14 EConHR read in conjunction with Article 1 of Protocol 1 of the EConHR, because they failed to recognise the same-sex relationship a woman had entered into after her divorce – even though they would have recognised an opposite-sex relationship under the same circumstances – when setting the level of child maintenance she was required to pay to her former husband. In other words, when setting the level of child maintenance in situations where a person has entered into another relationship following divorce, same-sex and opposite-sex relationships must be taken into account in the same way.
140 It is interesting to note that – as will be seen in the next chapter – the same approach of requiring States which do not allow same-sex marriages, to treat (opposite-sex) married couples in the same way as (same-sex) unmarried couples, has not yet been extended to the more controversial area of parenting rights – see Gas and Dubois v. France, no. 25951/07, 31 August 2010.
141 Above n. 20.
142 This was affirmed in Kozak v. Poland, above n. 20.
143 H. Toner, above n. 14, p. 293.
144 P.B. and J. S. v. Austria, no. 18984/02, 22 July 2010.
145 J. M. v. UK, no. 37060, 28 September 2010.
Finally, in the more controversial context of parenting, the ECtHR held in X and others v. Austria,146 that Article 8 EConHR read in conjunction with Article 14 EConHR requires that the unmarried female partner of a woman be granted the right to apply for step-parent adoption of the latter’s child, if such a right is granted to the unmarried male partner of a woman.
The PACE has recently called on Council of Europe member states to ‘align their constitutional, legislative and regulatory provisions and policies with respect to same-sex partners’ with the case law of the ECtHR regarding the grant of family reunification rights as well as other benefits such as succession to a tenancy and qualifying as dependants for the purposes of health insurance cover.147 In the same Resolution, the PACE also invited States to ‘ensure that other basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed relationship are provided for without discrimination on the grounds of sexual orientation’, such as property entitlements, access to survivor’s pensions and entitlements to inherit when one’s partner dies intestate, exemption from inheritance tax, applicability of rules on alimony, recognition of same-sex partners as next of kin for medical purposes.148
In addition, the Committee of Ministers of the Council of Europe has recommended that ‘Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same-sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights’.149