JOINT DISSENTING OPINION OF JUDGE S 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 m ember 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 S tate 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 . C onsequently, 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 dissent ing 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.