JOINT PARTLY DISSENTING OPINION OF JUD GES VAJIĆ AND MALINVERNI

(Translation)

We are un able to agree with the majority ' s opinion that, in the present case, there had been a violation of Article 8 , taken together with Article 14 of the Convention , during the “first period”, running from 1 July 1997 to 1 August 2006, date of the entry into force of A rticle 56 (6a) of the CSSAIA ( see paragraphs 36 to 38 of the judgment ).

It was on 1 July 1997 that the first applicant asked the CSIC to recognise him as a depend a nt of the second applicant and to extend the latter ' s health and accident insurance cover to him (see paragraph 7 of the judgment).

We find it quite understandable that, at the material time, the Austrian authorities should have denied the first applicant ' s request on the ground that A rticle 56 (6) of the CSSAIA could not be interpreted so as to include homosexual relationships. To be sure, at that time very few European States had enacted legislation on registered partnerships ( such as the French PACS ), and there was also a very small number of States that treated on an equal footing, for social security purposes, two cohabiting persons of the opposite sex and two homosexuals living together .

A t the present time, apart from the six member States that grant same-sex couples the right to marry , namely Belgium , the Netherlands , Norway , Portugal , Spain and Sweden ( see the case of Schalk and Kopf v . Au stria , no. 30141/04, 24 June 2010, § 27), only thirteen countries have enacted a law on registered partnerships . Most of those have only done so since 2000 : Belgium , Luxembourg , Switzerland and the United Kingdom i n 2004, Estonia in 2005, and the Czech Republic in 2006. Only D en mark , Norway and Sweden had enacted such l e gislation in the 1990s .

It can thus be said that at the material time there was no European consensus as to whether homosexu al couples should be treated on an equal footing with heterosexual couple s , even unmarried ones , for various legal purposes in general , and for that of social security in particular .

In these conditions we find it difficult to accept that the decisions by the various competent Austrian authorities rejecting the applicant s ' request , all those decisions having been issued between 1997 and 2001 ( see paragraphs 8 to 14), may be regarded as contrary to A rticles 8 and 14 taken together . As the Constitutional Court found in its judgment of 15 June 1998, in the absence of a European consensus , “the legislator had had a very wide margin in which to reach a decision and the decision taken had been within that margin” ( paragraph 12).