P.B. and J.S. v. Austria: Discrimination on the Basis of Sexual Orientation

July 27, 2010
by Lourdes Peroni
www.strasbourgobservers.com

It looks like a string of cases on discrimination on the basis of sexual orientation are coming out this year. Following Kozac v. Poland on the right to succeed to the deceased partner’s tenancy and Schalk and Kopf v. Austria on same-sex couples’ access to marriage or alternative legal recognition, the Court just ruled on the extension of health insurance cover to same-sex cohabiting partners (P.B. and J.S. v. Austria).
The applicants claimed they had been victims of discrimination given the impossibility to have the cover of the second applicant’s health and accident insurance extended to include the first applicant. Under section 56 of the Civil Servants Sickness and Accident Insurance Act (CSSAIA), as in force until 1 August 2006, such an extension was only open to cohabiting persons of the opposite sex. On 1 August 2006, section 56 of the CSSAIA was amended. A second amendment to section 56 of the CSSAIA entered into force on 1 July 2007.
As in Schalk and Kopf v. Austria, the Court considered that the relationship of the applicants, “a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life.’” This was in view of “the rapid evolution of social attitudes towards same-sex couples” over the past decade reflected in a considerable number of Member States affording legal recognition to same-sex couples. But, unlike Schalk and Kopf, the outcome under Article 14 in conjunction with Article 8, was fortunately different this time.
The Court held by five votes to two that there has been a violation of Article 14, read in conjunction with Article 8, as regards the period until the entry into of force of the first amendment to the CSSAIA, that is, until August 1, 2006. When examining the alleged discrimination the Court recalled, once more, that “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.” In this case, the Court acknowledged that the Government did not give “any justification for the difference in treatment experienced by the applicants and that experienced by cohabitees of the opposite sex.”
The Court went on further to reiterate 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.” According to the Court, it must also be shown that the exclusion of certain categories of persons (in this case those living in a homosexual relationship) is necessary to achieve that aim. The Government, the Court noted, “did not advance any argument supporting such conclusion.”
Judges Vajić and Malinverni, dissenting, found no violation during the first period, that is, from 1 July 1997 (date of the applicants’ insurance extension request) to 1 August 2006 (date of the entry into force of the CSSAIA first amendment). The dissenters argued 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.” On their view, the state then enjoyed a very wide margin of appreciation given the absence of European consensus on the subject at the time.
With some variation in its composition, this is the same section that ruled in Schalk and Kopf v. Austria last month. As it may be recalled, in that opportunity, Judges Rozakis and Spielmann argued, in their dissenting opinion, that “[h]aving identified a ‘relevantly similar situation’ […] and emphasised that ‘differences based on sexual orientation require particularly serious reasons by way of justification’ […] the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment.” They then understood that “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.” In the instant case of P.B. and J.S., the Austrian Government did not give any justification for the difference in treatment either. But, fortunately, Judges Rozakis and Spielmann were on the majority side this time.
Note: In P.B. and J.S. v. Austria, the Court also held:
2. Unanimously, that there has been a violation of Article 14, read in conjunction with Article 8, as regards the period from 1 August 2006 until 30 June 2007 (the period after the first amendment to the Civil Servants Sickness and Accident Insurance Act entered into force).
3. Unanimously, that there has been no violation of Article 14, read in conjunction with Article 8, as regards the period from 1 July 2007 onwards (the period after a further amendment to the Civil Servants Sickness and Accident Insurance Act entered into force)
My comments in this post are limited to the first point of the Court’s holding: “1. 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.”