Friday 8 November 2013

Vallianatos Judgment on Sexual Orientation Discrimination in Civil Partnerships

Yesterday, the Court's Grand Chamber issued its judgment in Vallianatos and Others v Greece, an important case about sexual orientation discrimination. I am happy to feature a guest post here by Paul Johnson of the University of York:

Vallianatos and Others v Greece
Guest post by Paul Johnson

Yesterday (7 November 2013) the Grand Chamber of the European Court of Human Rights held by 16-1 that the blanket exclusion of same-sex couples living in Greece from registering a ‘civil union’ – a legal form of partnership available to opposite-sex couples – violates rights protected by Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights.


The case originated in two applications against the Hellenic Republic. The first application was made by two Greek nationals, Mr Grigoris Vallianatos and Mr Nikolaos Mylonas, and the second by six anonymous Greek nationals and the association ‘Synthessi – Information, Awarenessraising and Research’.

The applications were originally allocated to the First Section of the Court but on 11 September 2012 a Chamber of the First Section relinquished jurisdiction in favour of the Grand Chamber. A hearing took place on 16 January 2013.


Mr Vallianatos and Mr Mylonas live together as a couple in Athens. The other anonymous applicants comprise two same-sex couples who live together and a further same-sex couple who do not cohabitate. ‘Synthessi – Information, Awarenessraising and Research’ is a notfor-profit association which provides ‘psychological and moral support to gays and lesbians’.

The applicants’ complaint relates to the law ‘Reforms concerning the family, children and society’ (Law no. 3719/2008) which entered into force on 26 November 2008. This law made provision in Greece for an official form of partnership, known as ‘civil unions’ (σύμφωνο συμβίωσης), which is distinct to marriage.

Section 1 of Law no. 3719/2008 states:

‘A contract between two different-sex adults governing their life as a couple (“civil union”) shall be entered into by means of a notarised instrument in the presence of the parties. The contract shall be valid from the date on which a copy of the notarised instrument is lodged with the civil registrar for the couple’s place of residence. It shall be recorded in a special civil register.’

A civil union can therefore only be entered into by two different-sex adults.

The applicants complained that the fact that civil unions are available only to different-sex couples violated their right to respect for their private and family life (under Article 8) and amounted to unjustified discrimination between different-sex and same-sex couples (under Article 14).

The applicants also complained (under Article 13) that no effective remedy was available in domestic law enabling them to assert before the domestic courts their complaints concerning the discriminatory nature of civil unions.


The Greek Government argued that the complaint was inadmissible on two grounds. First, none of the applicants could be considered as victims (according to Article 34 of the Convention) since they did not suffer ‘direct and immediate adverse consequences as a result of their inability to enter into a civil union’. Second, the applicants had not exhausted the domestic remedies (as required by Article 35(1) of the Convention) available to them.

In respect of victim status, the Court agreed that the legal organization ‘Synthessi–Information, Awarenessraising and Research’ could not be considered as a direct or indirect ‘victim’ within the meaning of Article 34 of the Convention and therefore dismissed its complaint. This is important insofar as it reiterates the established position taken by the Court that it will not necessarily accord victim status to organizations campaigning on behalf of those suffering sexual orientation (and other forms of) discrimination. In contracting states where individual applicants fear making complaints to the Court and who would therefore seek the protection of organizations to make complaints on their behalf, this is always a problematic and limiting aspect of the Convention. In respect of the other applicants – the same-sex couples – the Court accorded them victim status under Article 34 on the basis that they are ‘directly concerned by the situation and have a legitimate personal interest in seeing it brought to an end’.

In respect of the exhaustion of domestic remedies, the Court concluded that the applicants had no effective domestic remedy in practice and in law available to them. The Court stated that the Government had not produced any examples of past court rulings capable of demonstrating convincingly that the applicants could have sought a domestic legal remedy for their complaints.

Accordingly, the Court deemed admissible the complaints brought by the same-sex couples.


Applicability of Article 14 in conjunction with Article 8

In determining the applicability of Article 8 to the present case the Court invoked its settled view that sexual and intimate relationships fall within the private life limb of Article 8. It also stated, drawing on its more recent jurisprudence, that same-sex relationships fall within the ‘family life’ limb of Article 8. However, in determining that all of the relationships of the applicants fell within the ambit of family life the Court made a small but significant advancement in its jurisprudence. Previously, in its Article 8 jurisprudence relating to same-sex couples, the Court has accorded family life status to cohabiting couples (see: Schalk and Kopf v Austria; P.B. and J.S. v Austria). However, despite an objection from the Greek Government, the Court has now extended family life to cover same-sex couples that ‘for professional and social reasons’ do not cohabit. This is a small but significant development. In light of this, the Court determined that Article 14 was also applicable because, in compliance with its settled jurisprudence, Article 14 is relevant when the facts of a complaint fall within the ambit of another Convention right.

Compliance with Article 14 taken in conjunction with Article 8

It is unsurprising to find that the first line of the Court’s consideration of the compliance of the impugned law with the Convention limits the scope of its review. The Court stated that it is not concerned with whether there is ‘a general obligation’ to provide same-sex couples with a form of legal recognition in domestic law. This is unsurprising because it allows the Court to avoid having to provide any view on whether the Convention imposes a positive obligation on a contracting state to provide same-sex partners with legal recognition of their relationship. Given that the majority of contracting states do not provide such recognition, the Court was careful to demonstrate that it was concerned only with the effects of a law already in existence.

In approaching the question of whether the difference in treatment created by the civil union law amounted to discrimination under the Convention the Court invoked its common framework for considering Article 14 complaints. This requires that any difference in treatment complained of be between persons in comparable situations and that it have no objective and reasonable justification.

The ‘comparable situation’ requirement has often resulted in complaints about sexual orientation discrimination failing in the Court (for a recent example, see: Manenc v France). However, the Court glossed over this requirement fairly quickly be stating that ‘same-sex couples are just as capable as different-sex couples of entering into stable committed relationships’ and are ‘in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship’. Interestingly, the authority for that view is Schalk and Kopf v Austria in which the Court found no violation of Article 14 taken in conjunction with Article 8 in respect of a case that involved a complaint about the absence of any legal recognition for same-sex couples. It is somewhat ironic, therefore, that one of the Court’s most important recent judgments in respect of sexual orientation – which established that there is no positive obligation for contracting states to provide same-sex couples with partnership recognition – should be used to establish analogous situation in this way.

In respect of the ‘objective and reasonable’ test the Court cited from its previous jurisprudence to state that ‘[d]ifferences based solely on considerations of sexual orientation are unacceptable under the Convention’. This is welcome because the Court does not always reiterate its previous jurisprudence in these terms. For example, in its recent consideration of same-sex marriage the Court stated that whilst ‘differences based on sexual orientation require particularly serious reasons by way of justification’, ‘a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy’ (Schalk and Kopf v Austria). No mention of the margin available in respect of ‘social strategy’ was made by the Court in the present case. As I have argued elsewhere, the Court should standardize its approach and always assert the stronger Article 14 line that is established in its jurisprudence and used in the present case.

In respect of determining whether the Greek law met the ‘objective and reasonable’ test – that is, whether there was a reasonable relationship of proportionality between the law and the aims it sought to realize – the Court focused on the defence advanced by the Government for excluding same-sex couples from registering a civil union. The first reason given by the Government was that the rights and obligations created by civil unions (in terms of property status, the financial relations within each couple and their inheritance rights) could be accessed by same-sex couples through the formulation of a legal contract. The second reason the Government gave was that civil unions were designed to achieve several goals (such as protecting children born outside marriage, protecting single-parent families, responding to the wishes of parents to raise their children without being obliged to marry) that ultimately related to ‘strengthening the institutions of marriage and the family in the traditional sense’.

The Court rejected the first reason given by the Government by stating that entering into a civil union had an ‘intrinsic value for the applicants’ that is ‘irrespective of the legal effects, however narrow or extensive, that they would produce’. Therefore, whilst the Court recognized that the exclusion of same-sex couples from civil unions created no real legal distinction, it acknowledged the importance of the social status that it denied. The Court stated that ‘extending civil unions to same-sex couples would allow [them] to regulate issues concerning property, maintenance and inheritance not as private individuals entering into contracts under the ordinary law but on the basis of the legal rules governing civil unions, thus having their relationship officially recognised by the State’. The Court can therefore be seen to legitimize the importance of the symbolic recognition of same-sex partnerships by the state.

In relation to the Government’s second defence, the Court reiterated its settled view that the ‘protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment’ and added that ‘[it] goes without saying that the protection of the interests of the child is also a legitimate aim’. In respect of the ‘traditional family’, as I have argued elsewhere, the Court could adopt a more critical view of ‘the family’ instead of reiterating heteronormative claims about ‘tradition’. The Court has repeatedly replayed the view that the family is traditionally a heterosexual institution without paying any attention to the counter-view that, throughout history, same-sex couples and their children have formed autonomous social units. Such units, although not often previously accorded the social status of ‘family’, are not recent inventions. By constantly attributing the status of ‘traditional’ to the heterosexual family, the Court reiterates a social norm against which other family forms are compared and against which Convention rights are adjudicated. In this case, however, the Court did add, relying on its ‘living instrument’ doctrine, that a state’s choice of means to protect the traditional family must ‘necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life’. It also reiterated its settled view that a difference in treatment based on sexual orientation must not simply be ‘suitable’ in achieving the aim of protecting the traditional family but must be ‘necessary’.

In considering whether excluding same-sex couples from civil unions was necessary, the Court focused on the Government’s claims that the law was proportionate in meeting the aim of protecting children (in respect of protecting children born outside marriage and protecting single-parent families). The Court questioned the relevance of these aims but stated that, even if those objectives were the intention of the civil union law, ‘the fact remains that [the law] excluded same-sex couples while allowing different-sex couples, whether or not they had children, to regulate numerous aspects of their relationship’. The fact that the ‘Government’s arguments focus on the situation of different-sex couples with children, without justifying the difference in treatment arising out of the legislation in question between same-sex and different-sex couples who are not parents’ was ultimately fatal to the Government’s defence. It meant that the Government’s argument – that the law was designed to sustain the ‘traditional family’ in order to protect children – was weakened because civil unions are available to opposite-sex couples irrespective of whether they have children. The Court furthermore stated that even if the law was pursuing the legitimate aim of protecting children born outside of marriage it was not necessary to exclude same-sex couples from its scope. ‘It would not have been impossible’, the Court stated, ‘for the legislature to include some provisions dealing specifically with children born outside marriage, while at the same time extending to same-sex couples the general possibility of entering into a civil union’.

An interesting feature of the Court’s consideration of the necessity of excluding same-sex couples from civil unions is its statement that ‘same-sex couples […] have a particular interest in entering into a civil union since it would afford them, unlike different-sex couples, the sole basis in Greek law on which to have their relationship legally recognised’. Although this is a welcome statement – because it gives credence to the fact that many (perhaps most) same-sex couples want the opportunity to gain legal recognition for their partnerships – I am not convinced it is wholly relevant to a consideration of proportionality. In considering whether the measure taken (the civil union law) was necessary to meet the stated aim, the interest of same-sex couples does not seem of central relevance. If the desire of same-sex couples to gain relationship recognition is key to a consideration of the proportionality of laws that deny it to them, then the Court might like to revisit its Article 14 decision in Schalk and Kopf v Austria and, more generally, consider its position on same-sex marriage.

A further interesting feature of the Court’s review is its discussion of European consensus on partnership rights. The Court noted that ‘although there is no consensus among […] member States, a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships’ and cited the existence of ‘seventeen member States [that] authorise some form of civil partnership for same-sex couples’. In light of this, the Court stated that ‘the trend emerging in […] member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples’. The Court, therefore, observes that Lithuania and Greece are out-of-step with the other seventeen states that have an alternative system to marriage for recognizing relationships and make this available to same-sex couples. However, as if to further justify the relevance of this ‘clear trend’ to its judgment, the Court states:

‘In other words, with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope’.

This statement, as I read it, is factually problematic because some member states among the seventeen said to constitute the ‘clear trend’ (that is the states, excluding Greece and Lithuania, that have civil partnership legislation that extends to same-sex couples) did not enact civil partnership legislation as ‘an alternative to marriage for unmarried couples’. In the United Kingdom, for example, because opposite-sex couples are excluded from registering a civil partnership (and have no alternative to marriage) the Civil Partnership Act 2004 cannot be described as ‘a new system of registered partnership as an alternative to marriage for unmarried couples’ that was designed to ‘include same-sex couples in its scope’. The Court seems to suggest that there is a ‘trend’ in Europe for introducing legislation to make available to all unmarried couples an alternative system of registered partnership and that Greece and Lithuania are out of step with this. But the trend is not as simple as this as not all contracting states that enacted civil partnership legislation made it available to all married couples (as in the United Kingdom) and, therefore, those states are not pursuing the objective implied by the Court. In the case of the United Kingdom, for example, the ambition of the Civil Partnership Act 2004 was not to offer ‘unmarried couples’ an alternative system to marriage but to offer same-sex couples a system of partnership registration that was not marriage. In addition to this, opponents of same-sex partnership rights will point out that Greece is not out-of-step in withholding partnership rights to same-sex couples and, on the contrary, is in line with the majority of other contracting states. Therefore, the Court’s consensus analysis as a basis for supporting its judgment bears (as is often the case) some additional scrutiny. This is especially so since the consensus argument of the majority is invoked by Judges Casadevall, Ziemele, Jočienė and Sicilianos in their joint concurring opinion to justify their decision in this case as opposed to their dissenting position taken in X and Others v. Austria.

A good judgment?

Clearly, for those interested in enhancing sexual orientation legal equality, this is a positive judgment. In upholding the applicants’ complaints the Court has established the foundation for a change in Greek law that will ultimately result in some legal recognition for same-sex couples (the exact terms of the recognition will be negotiated with the Committee of Ministers during the execution of the judgment). The judgment also means that a similar-facts complaint from a Lithuanian same-sex couple will almost certainly be successful. For same-sex couples in 2 of the 47 contracting states, this is therefore good news.

But the judgment should also be seen as limited. In typical Strasbourg fashion, it offers the most conservative and limited step forward in terms of same-sex partnership rights. The judgment cannot be read as introducing any positive obligation for contracting states to give same-sex couples access to legal forms of partnership recognition. In dealing only with discrimination created by the introduction of a civil partnership law excluding same-sex couples, the judgment not only avoids dealing with the lack of same-sex partnership rights in contracting states generally but also could, unintentionally, sustain legal inequalities. The contracting states that do not grant same-sex couples partnership rights – the majority of states in the Council of Europe – now know that if they introduce a legal alternative to marriage for different-sex couples they cannot exclude same-sex couples from it. Such states therefore know to ‘think twice’ about the consequences of making a legal alternative to marriage available.

Ultimately, then, this judgment represents another small step towards realizing full and equal protection for gay men and lesbians under the Convention.