FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18984/02 by P.B. and J.S against Austria

The European Court of Human Rights (First Section), sitting on 20 March 2008 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Khanlar Hajiyev , Dean Spielmann , Giorgio Malinverni , judges,

and S øren . Nielsen, Section Registrar,

Having regard to the above application lodged on 24 April 2002,

Having regard to the comments submitted by the respondent Government and the observations in rep ly submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, P.B. is a Hungarian citizen, born in 1963 and the second applicant J.S. is an Austrian citizen, born in 1959. They both live in Vienna . They are represented before the Court by Mr J. Unterweger, a lawyer practising in Vienna . The Austrian Government (“the Government”) are r epresented by their Agent Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants live together in a homosexual relationship. The second applicant is a civil servant and for the purpose of accident and sickness insurance coverage he is insured with the Civil Servants Insurance Corporation (CSIC Versicherungsanstalt Öffentlicher Bediensteter ). On 1 July 1997 the first applicant requested the CSIC to recognise him as dependent ( Angehöriger) and that the insurance coverage of the second applicant be extended to him. He submitted that Section 56 § 6 of the Civil Servants Sickness and Accident Insurance Act (CSSAIA Beamten-Kranken- und Unfallversicherungsgesetz ) only referred to persons of the opposite sex living with the principal insured person and running the common household without receiving any payment, but since there was no good reason for excluding persons living in a homosexual relationship from the privilege of extended insurance coverage, Section 56 § 6 should be interpreted as to include also homosexual relations.

On 2 September 1997 the CSIC dismissed the request, holding that since the first applicant did not belong to the opposite sex of 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 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 again dismissed the first applicant ’ s request 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 filed a complaint with the Constitutional Court in which he argued that the exclusion of homosexual couples from the extension of insurance coverage under Section 56 § 6 CSSAIA was in breach of Article 14 read in conjunction with Article 8 of the Convention and 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 margin of the legislator was a very wide one and the decision of policy taken was still within that margin.

On an unspecified date the Constitutional Court granted the first applicant ’ s request for transfer of the case 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 fi r st applicant ’ s complaint. It found that the authorities had correctly concluded that Section 56 § 6 CSSAIA only aimed at heterosexual partnerships. There was no issue under Article 14 read in conjunction with Article 8 of the Convention as 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 CSSAIA also complied with the principle of equality as this difference in treatment was justified. While, as a rule, in case of persons of different sex living together in a household and one of them running the household while not being gainfully employed, it was safe to conclude that they were cohabitating in a partnership; this was not the case if two persons of the same sex lived together in a household. In the absence of any possibility to register a homosexual partnership delicate enquiries into the most intimate sphere of the person concerned would be necessary. This difference in the factual situation justified a different treatment in law.

In proceedings instituted by the Constitutional Court to examine the constitutionality of two similar provisions to Section 56 § 6 CSSAIA, the Constitutional Court decided on 10 Octo ber 2005 to quash Section 123 § 8 (b) of the General Social Security Act (GSSA Allgemeines Sozial - versicherungsgesetz ) and Section 83 §3 of the Social Security Act for Trade and Commerce (TCSSA Gewerbliches Sozialversicherungsgesetz ). The Constitutional Court explicitly referred to the decision of the European Court of Human Rights in the case Karner v. Austria , no. 40016/98, judgment of 24 July 2003 and held that the two provisions in question were discriminatory.

On 1 August 2006 the Social Rights Amendment Act (SRAA Sozialrechts-Änderungsgesetz ) entered into force amending in particular the GSSA, TCSSA and also Section 56 CSSAIA. A second amendment of the Section 56 CSSAIA entered into force on 1 July 2007.

B. Rele vant domestic law

Before 1 August 2006 Section 56 § 6 of the Civil Servants Sickness and Accident Insurance Act ( Beamten-Kranken- und Unfallversicherungsgesetz ) provided that a dependent is either a related person, or a non-related person of the opposite sex than the insurance taker and who, for at least the past ten months, has shared and ran the common household without remuneration.

After the amendment of the Civil Servants Sickness and Accident Insurance Act on 1 August 2006, Section 56 § 6 remained the same, but a new paragraph ( § 6 a) was introduced. It provided that “a dependent is a non-related person, who for at least the past ten months, has shared and ran the common household without remuneration, if [...] that person takes care of the children living in that household [...]”.

On 1 July 2007 a further amendment of the Civil Servants Sickness and Accident Insurance Act entered into force. Section 56 § 6 no longer applies to non-related persons, but only to relatives of the insurance taker. As far as relevant, paragraph 6a was not amended.

COMPLAINTS

The applicants complain ed under Article 14 of the Convention read in conjunction with Article 8 that the refusal to extend the coverage of the sickness and accident insurance held by the second applicant to the first applicant amounted to discrimination prohibited by the Convention. They also invoke Article 14 of the Convention r ead in conjunction with Article 1 of Protocol No. 1.

THE LAW

1. The applicants claimed to be victims of discrimination on the ground of sexual orientation in that the Administra tive Court in its decision of 4 October 2001 upheld that the insurance coverage of the second applicant only extended to heterosexual partners within the meaning of section 56 § 6 CSSAIA . They relied on Article 14 of the Convent ion 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, insofar 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.”

The Government did not comment on the merits of the application. They noted that after the Constitutional Court, on 10 October 2005, quashed the two parallel provisions of the General Social Security Act (GSSA) and the Social Security Act for Trade and C ommerce (TCSSA) to Section 56 § 6 CSSAIA, a reform was currently under way to reformulate the legal provisions on the extension of insurances to cohabitees . On 1 August 2006 and 1 July 2007 amendments of the CSSAIA entered into force, which regulate the affiliation of a partner to a social security scheme in a non-discriminatory way.

The applicants maintained that despite the Constitutional Court ’ s judgment of 10 October 2005 and the subsequent amendment of 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 (opposite-sex) couples who were entitled to it before the amendment, irrespective of whether they raised children or not. Since this was not the case for same-sex partners they were continuously victims of discriminatory legislation .

The Court finds that question of whether the applicants are victims within the meaning of Article 34 of the Convention is closely linked to the substance of the application. Therefore, the Court decides to join this issue to the merits of the application.

The Court furthermore considers that this part of the application raises complex issues of law and fact under Article 14 in conjunction with Article 8 of the Convention, the determination of which should depend on an examination of the merits. It cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.

2. 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, insofar 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 additional observations in this respect. The Court finds that this part of the application raises similarly complex issue s of law and fact under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, the determination of which should depend on an examination of the merits. It cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.

For these reasons, the Cou rt unanimously

Decides to join to the merits the question as to whether or not the applicants may claim to be victims within the meaning of Article 34 of the Convention.

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President