CONCURRING OPINION OF JUDGE MITS

The applicants complained, under Article 14 taken in conjunction with Article 8, that they had been discriminated against on the basis of their sex and sexual orientation because they had been denied access to the institution of registered partnerships. In essence, though, they imply that the State has a positive obligation to make the institution of registered partnerships available to different-sex couples, if such institution has been introduced to cater for the rights of same-sex couples.

I agree with the outcome in this case. However, it was the first time that the Court was called upon to address the question, arguably of a higher importance than just for the respondent country, of access to registered partnerships from the perspective of different-sex couples. Establishing whether persons are in analogous or relevantly similar situations is a necessary precondition for the application of Article 14 read in conjunction with another Convention Article (see, as an early authority, Rasmussen v. Denmark , 28 November 1984, §§ 29-42, Series A no. 87). This step has decisive consequences for the case, since a finding that there is no comparator precludes the Court from entering into an assessment on the merits. As it has been critically noted in the scholarly writings, the use of comparators may in effect convert a potentially challengeable ground of discrimination into one that is immune from judicial scrutiny [1] . The above reasons call for an expansion of the reasoning in the judgment.

The Court has recently provided guidance on how to assess “relevantly similar situations”. In Fábián v. Hungary ([GC], no. 78117/13, § 121, 5 September 2017 – see paragraph 31 of the present judgment) it stated that “the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question.”

Turning to the present case, the institution of registered partnerships was introduced in Austria in 2010 in order to recognise relationships of same ‑ sex couples and to give them legal effect. This was done with particular regard to developments in other European States (see paragraph 13 of the judgment). Therefore, Austria was part of an emerging trend in Europe, as observed by the Court in 2013, with regard to the introduction of forms of legal recognition of same-sex relationships (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 91, ECHR 2013 (extracts)).

According to the information available to the Court at the time of deciding the Vallianatos case, nineteen out of the forty-seven Council of Europe member States at that time offered registration of partnerships as an alternative to, or in addition to, marriage. Nine out of those nineteen States provided such registration schemes only to same-sex couples, eight States made them open to both same-sex and different-sex couples, while two States restricted them to different-sex couples (one of the two – Greece – was found to be in breach of Article 14 taken in conjunction with Article 8 in that respect).

The situation in the Council of Europe member States confirms the Court ’ s conclusion in the present case that different-sex couples are not in a comparable situation to same-sex couples. In all Council of Europe member States, different-sex couples have their relationships and legal interests protected through the institution of marriage. Only in eight out of the nineteen States providing for alternative registration schemes are such schemes also open to different-sex couples. Thus, the European States predominantly rely on the institution of marriage for different-sex couples while increasingly acknowledging and legally protecting the relationships of same-sex couples.

The situation is not static. In 2010 already the Court concluded that the right to marry under Article 12 of the Convention was not in all circumstances limited to marriage between two persons of the opposite sex, but that the recognition of same-sex marriages should be left to regulation by domestic law (see Schalk and Kopf v. Austria , no. 30141/04, § 61, ECHR 2010). In 2015 the Court observed that the movement towards legal recognition of same-sex couples continued to develop rapidly, with twenty ‑ four of the Council of Europe member States providing such recognition (see Oliari and Others v. Italy , nos. 18766/11 and 36030/11, § 178, 21 July 2015). The international movement towards recognition of same-sex couples, by implication, may bring further changes to the availability of alternative mechanisms of registration also for same-sex couples.

However, as matters stand now, even if there has been some development since 2013, there would not be a sufficient basis for establishing a positive obligation on the part of the Government to make available the institution of registered partnerships to different-sex couples under Article 8 taken alone. It should be noted that the applicants sought examination of their case only through the lens of discrimination.

In view of the above and, in particular, as the purpose of the introduction of the institution of registered partnerships in Austria was to recognise and give legal effect to the relationships of same-sex couples, and since different sex-couples already enjoyed recognition and legal effects of their relationships to an even greater extent through the institution of marriage, there is currently no basis for concluding that different-sex couples are in a comparable situation to same-sex couples with respect to the need for (less stringent) recognition and legal regulation of their relationships by the State.