CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juin 2010

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display:inline-block } .sC7414540 { width:199.97pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }     FIRST SECTION             CASE OF SCHALK AND KOPF v. AUSTRIA   (Application no. 30141/04)                 JUDGMENT     STRASBOURG   24 June 2010   FINAL   22/11/2010   This judgment has become final under Article 44 § 2 of the Convention.   In the case of Schalk and Kopf v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President ,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges , and André Wampach, Deputy Section Registrar , Having deliberated in private on 25 February and 3 June 2010, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1.     The case originated in an application (no. 30141/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Austrian nationals, Mr Horst Michael Schalk and Mr   Johan Franz Kopf (“the applicants”), on 5 August 2004. 2.     The applicants were represented by Mr K. Mayer, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3.     The applicants alleged in particular that they were discriminated against as, being a same-sex couple, they were denied the possibility to marry or to have their relationship otherwise recognised by law. 4.     On 8 January 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention). 5.     The applicants and the Government each filed observations on the admissibility and merits of the application. The Government also filed further observations. In addition, third-party comments were received from the United Kingdom Government, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court). A joint third-party comment was received from four non-governmental organisations which had also been given leave by the President to intervene, namely the International Federation for Human Rights (Fédération internationale des ligues des droits de l’Homme – FIDH), the International Commission of Jurists (ICJ), the AIRE Centre and the European Region of the International Lesbian and Gay Association (ILGA-Europe). The four non-governmental organisations were also given leave by the President to intervene at the hearing. 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 25 February 2010 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   B. Ohms , Federal Chancellery,   Deputy Agent , Ms   G. Paschinger , Federal Ministry for European and     International Affairs, Mr   M. Stormann , Federal Ministry of Justice,   Advisers ; (b)     for the applicants Mr   K. Mayer ,   Counsel , Mr   H. Schalk ,   Applicant ; (c)     for the non-governmental organisations, third-party interveners Mr   R. Wintemute , King’s College London,   Counsel , Ms   A. Jernow , International Commission of Jurists,   Adviser .   The Court heard addresses by Ms Ohms, Mr Mayer and Mr Wintemute. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicants were born in 1962 and 1960 respectively. They are a same-sex couple living in Vienna. 8.     On 10 September 2002 the applicants requested the Office for Matters of Personal Status ( Standesamt ) to proceed with the formalities to enable them to contract marriage. 9.     By a decision of 20 December 2002, the Vienna Municipal Office ( Magistrat ) refused the applicants’ request. Referring to Article 44 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ), it held that marriage could only be contracted between two persons of opposite sex. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. Since the applicants were two men, they lacked the capacity to contract marriage. 10.     The applicants lodged an appeal with the Vienna Regional Governor ( Landeshauptmann ), but to no avail. In his decision of 11 April 2003, the Governor confirmed the Municipal Office’s legal view. In addition, he referred to the Administrative Court’s case-law according to which it constituted an impediment to marriage if the two persons concerned were of the same sex. Moreover, Article 12 of the Convention reserved the right to contract marriage to persons of different sex. 11.     In a constitutional complaint, the applicants alleged that the legal impossibility for them to marry constituted a violation of their right to respect for private and family life and of the principle of non-discrimination. They argued that the notion of marriage had evolved since the entry into force of the Civil Code in 1812. In particular, the procreation and education of children no longer formed an integral part of marriage. According to present-day perceptions, marriage was rather a permanent union encompassing all aspects of life. There was no objective justification for excluding same-sex couples from concluding marriage, all the more so since the European Court of Human Rights had acknowledged that differences based on sexual orientation required particularly weighty reasons by way of justification. Other European countries either allowed homosexual marriage or had otherwise amended their legislation in order to give equal status to same-sex partnerships. 12.     Lastly, the applicants alleged a breach of their right to the peaceful enjoyment of their possessions. They argued that in the event that one partner in a homosexual couple died, the other was discriminated against since he would be in a much less favourable position under tax law than the surviving partner in a married couple. 13.     On 12 December 2003 the Constitutional Court ( Verfassungsgerichtshof ) dismissed the applicants’ complaint. The relevant parts of its judgment read as follows: “The administrative proceedings that resulted in the impugned decision were exclusively concerned with the issue of the legitimacy of the marriage. Accordingly, the complainants’ sole applicable grievance is that Article 44 of the Civil Code only recognises and provides for marriage between ‘persons of opposite sex’. The allegation of a breach of the right of property is simply a further means of seeking to show that this state of affairs is unjustified. With regard to marriage, Article 12 of the [Convention], which ranks as constitutional law, provides: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ Neither the principle of equality set forth in the Austrian Federal Constitution nor the European Convention on Human Rights (as evidenced by [the terms] ‘men and women’ in Article 12) require that the concept of marriage, as being geared to the fundamental possibility of parenthood, should be extended to relationships of a different kind. The essence of marriage is, moreover, not affected in any way by the fact that divorce (or separation) is possible and that it is a matter for the spouses whether in fact they are able or wish to have children. The European Court of Human Rights found in its Cossey [ v. the United Kingdom ] judgment of 27 September 1990 (no.   10843/84, [Series A no. 184], concerning the particular position of transsexual persons) that the restriction of marriage to this ‘traditional’ concept was objectively justified, observing: ‘... that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage ...’ [The subsequent change in the case-law concerning the particular issue of transsexuals ( Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI) does not permit the conclusion that there should be any change in the assessment of the general question at issue here.] The fact that same-sex relationships fall within the concept of private life and as such enjoy the protection of Article 8 of the [Convention] – which also prohibits discrimination on non-objective grounds (Article 14 of the [Convention]) – does not give rise to an obligation to change the law of marriage. It is unnecessary in the instant case to examine whether, and in which areas, the law unjustifiably discriminates against same-sex relationships by providing for special rules for married couples. Nor is it the task of this court to advise the legislature on constitutional issues or even matters of legal policy. Instead, the complaint must be dismissed as ill-founded.” 14.     The Constitutional Court’s judgment was served on the applicants’ counsel on 25 February 2004. II.     RELEVANT DOMESTIC AND COMPARATIVE LAW A.     Austrian law 1.     The Civil Code 15.     Article 44 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides: “The marriage contract shall form the basis for family relationships. Under the marriage contract two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other.” This provision has been unchanged since its entry into force on 1 January 1812. 2.     The Registered Partnership Act 16.     The purpose of the Registered Partnership Act ( Eingetragene Partnerschaft-Gesetz ) was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships. In introducing the said Act, the legislator had particular regard to developments in other European States (see the explanatory report on the draft law – Erläuterungen zur Regierungsvorlage , 485 der Beilagen XXIV GP). 17.     The Registered Partnership Act, Federal Law Gazette ( Bundesgesetzblatt ) vol. I, no. 135/2009, came into force on 1 January 2010. Section 2 of the Act provides as follows: “A registered partnership may be formed only by two persons of the same sex (registered partners). They thereby commit themselves to a lasting relationship with mutual rights and obligations.” 18.     The rules on the establishment of a registered partnership, its effects and its dissolution resemble the rules governing marriage. 19.     Registered partnership involves cohabitation on a permanent basis and may be entered into between two persons of the same sex having legal capacity and having reached the age of majority (section 3). A registered partnership must not be established between close relatives or with a person who is already married or has established a still valid registered partnership with another person (section 5). 20.     Like married couples, registered partners are expected to live together like spouses in every respect, to share a common home, to treat each other with respect and to provide mutual assistance (section 8(2) and   (3)). As in the case of spouses, the partner who is in charge of the common household and has no income has legal authority to represent the other partner in everyday legal transactions (section 10). Registered partners have the same obligations regarding maintenance as spouses (section 12). 21.     The grounds for dissolution of a registered partnership are the same as for dissolution of marriage or divorce. Dissolution of a registered partnership occurs in the event of the death of one partner (section 13). It may also be pronounced by a judicial decision on various other grounds, such as lack of intent to establish a registered partnership (section 14), fault of one or both partners, or breakdown of the partnership due to irreconcilable differences (section 15). 22.     The Registered Partnership Act also contains a comprehensive range of amendments to existing legislation in order to provide registered partners with the same status as spouses in various other fields of law, such as inheritance law, labour, social and social insurance law, tax law, the law on administrative procedure, the law on data protection and public service, passport and registration issues, as well as legislation regarding foreigners. 23.     However, some differences between marriage and registered partnership remain, apart from the fact that only two persons of the same sex can enter into a registered partnership. The following differences were the subject of some public debate prior to the adoption of the Registered Partnership Act: firstly, while marriage is contracted before the Office for Matters of Personal Status, registered partnerships are concluded before the district administrative authority; and secondly, the rules on the choice of name differ from those for married couples: for instance, the law uses the term “last name” where a registered couple chooses a common name, but the term “family name” is used in reference to a married couple’s common name. The most important differences, however, concern parental rights: unlike married couples, registered partners are not allowed to adopt a child; nor is the adoption of stepchildren permitted, that is to say, the adoption of one partner’s child by the other partner (section 8(4)). Artificial insemination is also excluded (section 2(1) of the Artificial Procreation Act – Fortpflanzungsmedizingesetz ). B.     Comparative law 1.     European Union law 24.     Article 9 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and came into force on 1   December 2009, reads as follows: “The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” 25.     The relevant parts of the Commentary of the Charter read as follows: “Modern trends and developments in the domestic laws in a number of countries toward greater openness and acceptance of same-sex couples notwithstanding, a few States still have public policies and/or regulations that explicitly forbid the notion that same-sex couples have the right to marry. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. The domestic laws of the majority of States presuppose, in other words, that the intending spouses are of different sexes. Nevertheless, in a few countries, e.g. in the Netherlands and in Belgium, marriage between people of the same sex is legally recognised. Others, like the Nordic countries, have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e. its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. At the same time it is important to point out that the name ‘registered partnership’ has intentionally been chosen not to confuse it with marriage and it has been established as an alternative method of recognising personal relationships. This new institution is, consequently, as a rule only accessible to couples who cannot marry, and the same-sex partnership does not have the same status and the same benefits as marriage. In order to take into account the diversity of domestic regulations on marriage, Article 9 of the Charter refers to domestic legislation. As it appears from its formulation, the provision is broader in its scope than the corresponding Articles in other international instruments. Since there is no explicit reference to ‘men and women’ as the case is in other human rights instruments, it may be argued that there is no obstacle to recognise same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages. International courts and committees have so far hesitated to extend the application of the right to marry to same-sex couples.” 26.     A number of directives are also of interest in the present case. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification determines the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the member States. Article 4, entitled “Family members”, provides: “3.     The member States may, by law or regulation, authorise the entry and residence, pursuant to this directive und subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third-country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third-country national who is bound to the sponsor by a registered partnership in accordance with Article 5 § 2, ...” Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 concerns the right of citizens of the Union and their family members to move and reside freely within the territory of the member States. Article 2 thereof contains the following definition: “For the purposes of this Directive: ... 2.     ’Family member’ means: (a)     the spouse; (b)     the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a member State, if the legislation of the host member State treats registered partnerships as equivalent to marriage in accordance with the conditions laid down in the relevant legislation of the host member State; (c)     the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d)     the dependant direct relative in the ascending line and those of the spouse or partner as defined in point (b); ...” 2.     The state of relevant legislation in Council of Europe member States 27.     Currently, six out of forty-seven member States grant same-sex couples equal access to marriage, namely Belgium, the Netherlands, Norway, Portugal, Spain and Sweden. 28.     In addition, the following thirteen member States do not grant same-sex couples access to marriage, but have passed some kind of legislation permitting same-sex couples to register their relationships: Andorra, Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland and the United Kingdom. In sum, there are nineteen member States in which same-sex couples either have the possibility to marry or to enter into a registered partnership (see also the overview provided in Burden v. the United Kingdom [GC], no. 13378/05, § 26, ECHR 2008). 29.     In two States, namely Ireland and Liechtenstein, reforms intending to give same-sex couples access to some form of registered partnership are pending or planned. In addition, Croatia has a Law on same-sex civil unions which recognises cohabiting same-sex couples for limited purposes, but does not offer them the possibility of registration. 30.     According to the information available to the Court, the vast majority of the States concerned have introduced the relevant legislation in the last decade. 31.     The legal consequences of registered partnerships vary from being almost equivalent to marriage to giving relatively limited rights. Among the legal consequences of registered partnerships, three main categories can be distinguished: material consequences, parental consequences and other consequences. 32.     Material consequences cover the impact of registered partnerships on different kinds of tax, health insurance, social security payments and pensions. In most of the States concerned, registered partners obtain a status similar to marriage. This also applies to other material consequences, such as regulations on joint property and debt, the application of rules of alimony upon break-up, entitlement to compensation following the wrongful death of the partner and inheritance rights. 33.     With regard to parental consequences, however, the possibilities for registered partners to undergo medically assisted insemination or to foster or adopt children vary greatly from one country to another. 34.     Other consequences include the use of the partner’s surname, the impact on a foreign partner’s ability to obtain a residence permit and citizenship, refusal to testify, next of kin status for medical purposes, the right to succeed to the deceased partner’s tenancy, and lawful organ donation. THE LAW I.     THE GOVERNMENT’S REQUEST TO STRIKE THE APPLICATION OUT OF THE COURT’S LIST 35.     In their oral pleadings, the Government argued that the Registered Partnership Act allowed same-sex couples to obtain a legal status adjusted as far as possible to the status conferred by marriage on different-sex couples. They submitted that the matter might be regarded as being resolved and that it was justified to strike the application out of the Court’s list. They relied on Article 37 § 1 of the Convention, the relevant parts of which read as follows: “1.     The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (b)     the matter has been resolved; ... ... However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 36.     To conclude that Article 37 § 1 (b) of the Convention applies to the instant case, the Court must answer two questions in turn: firstly, it must ask whether the circumstances complained of directly by the applicants still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007). 37.     The Court observes that the crux of the applicants’ complaint is that, being a same-sex couple, they do not have access to marriage. This situation still obtains following the entry into force of the Registered Partnership Act. As the Government themselves pointed out, the said Act allows same-sex couples to obtain only a status similar or comparable to marriage, but does not grant them access to marriage, which remains reserved for different-sex couples. 38.     The Court concludes that the conditions for striking the case out of its list are not met and therefore dismisses the Government’s request. II.     ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 39.     The applicants complained that the authorities’ refusal to allow them to contract marriage violated Article 12 of the Convention, which provides as follows: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” The Government contested that argument. A.     Admissibility 40.     The Court observes that the Government raised the question whether the applicants’ complaint fell within the scope of Article 12, given that they were two men claiming the right to marry. The Government did not argue, however, that the complaint was inadmissible as being incompatible ratione materiae . The Court agrees that the issue is sufficiently complex not to be susceptible of being resolved at the admissibility stage. 41.     The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and of law under the Convention, the determination of which requires an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B.     Merits 1.     The parties’ submissions 42.     The Government referred to the Constitutional Court’s ruling in the present case, noting that the latter had had regard to the Court’s case-law and had not found a violation of the applicants’ Convention rights. 43.     In their oral pleadings before the Court, the Government maintained that both the clear wording of Article 12 and the Court’s case-law as it stood indicated that the right to marry was by its very nature limited to different ‑ sex couples. They conceded that there had been major social changes in the institution of marriage since the adoption of the Convention, but there was not yet any European consensus on granting same-sex couples the right to marry, nor could such a right be inferred from Article 9 of the Charter of Fundamental Rights of the European Union (“the Charter”). Despite the difference in wording, the latter referred the issue of same-sex marriage to national legislation. 44.     The applicants argued that in today’s society civil marriage was a union of two persons which encompassed all aspects of their lives, while the procreation and education of children was no longer a decisive element. As the institution of marriage had undergone considerable changes there was no longer any reason to refuse same-sex couples access to marriage. The wording of Article 12 did not necessarily have to be read in the sense that men and women only had the right to marry a person of the opposite sex. Furthermore, the applicants considered that the reference in Article 12 to the relevant “national laws” could not mean that States were given unlimited discretion in regulating the right to marry. 2.     The third-party interveners’ submissions 45.     The United Kingdom Government asserted that the Court’s case-law as it stood considered Article 12 to refer to the “traditional marriage between persons of the opposite biological sex” (see Sheffield and Horsham v. the United Kingdom , 30 July 1998, § 66, Reports of Judgments and Decisions 1998 ‑ V). In their view, there were no reasons to depart from that position. 46.     While the Court had often underlined that the Convention was a living instrument which had to be interpreted in the light of present-day conditions, it had only used that approach to develop its jurisprudence where it had perceived a convergence of standards among member States. In Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002 ‑ VI), for instance, the Court had reviewed its position regarding the possibility of post-operative transsexuals to marry a person of the sex opposite to their acquired gender, having regard to the fact that a majority of Contracting States permitted such marriages. In contrast, there was no convergence of standards as regards same-sex marriage. At the time when the third-party Government filed their observations only three member States permitted same-sex marriage, and in two others proposals to this effect were under consideration. The issue of same-sex marriage concerned a sensitive area of social, political and religious controversy. In the absence of consensus, the State enjoyed a particularly wide margin of appreciation. 47.     The four non-governmental organisations called on the Court to use the opportunity to extend access to civil marriage to same-sex couples. The fact that different-sex couples were able to marry, while same-sex couples were not, constituted a difference in treatment based on sexual orientation. Referring to Karner v. Austria (no. 40016/98, § 37, ECHR 2003 ‑ IX), they argued that such a difference could only be justified by “particularly serious reasons”. In their contention, no such reasons existed: the exclusion of same-sex couples from entering into marriage did not serve to protect marriage or the family in the traditional sense. Nor would giving same-sex couples access to marriage devalue marriage in the traditional sense. Moreover, the institution of marriage had undergone considerable changes and, as the Court had held in Christine Goodwin (cited above, § 98), the inability to procreate could not be regarded as per se removing the right to marry. The four non-governmental organisations conceded that the difference between the Christine Goodwin case and the present case lay in the state of European consensus. However, they argued that in the absence of any objective and rational justification for the difference in treatment, considerably less weight should be attached to European consensus. 48.     Finally, the four non-governmental organisations referred to judgments from the Constitutional Court of South Africa, the Courts of Appeal of Ontario and British Columbia in Canada, and the Supreme Courts of California, Connecticut, Iowa and Massachusetts in the United States of America, which had found that denying same-sex couples access to civil marriage was discriminatory. 3.     The Court’s assessment (a)     General principles 49.     According to the Court’s established case-law, Article 12 secures the fundamental right of a man and woman to marry and to found a family. The exercise of this right gives rise to personal, social and legal consequences. It is “subject to the national laws of the Contracting States”, but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see B. and L. v. the United Kingdom , no. 36536/02, § 34, 13 September 2005, and F. v. Switzerland , 18 December 1987, § 32, Series A no. 128). 50.     The Court observes at the outset that it has not yet had an opportunity to examine whether two persons who are of the same sex can claim to have a right to marry. However, certain principles might be derived from the Court’s case-law relating to transsexuals. 51.     In a number of cases the question arose whether refusal to allow a post-operative transsexual to marry a person of the opposite sex to his or her assigned gender violated Article 12. In its earlier case-law the Court found that the attachment to the traditional concept of marriage which underpins Article 12 provided sufficient reason for the continued adoption by the respondent State of biological criteria for determining a person’s sex for the purposes of marriage. Consequently, this was considered a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry (see Sheffield and Horsham , cited above, § 67; Cossey v. the United Kingdom , 27 September 1990, § 46, Series A no. 184; and Rees v. the United Kingdom , 17 October 1986, §§   49 ‑ 50, Series A no. 106). 52.     In Christine Goodwin (cited above, §§ 100-04) the Court departed from that case-law: it considered that the terms used by Article 12 which referred to the right of a man and woman to marry no longer had to be understood as determining gender by purely biological criteria. In that context, the Court noted that there had been major social changes in the institution of marriage since the adoption of the Convention. Furthermore, it referred to Article 9 of the Charter, which departed from the wording of Article 12. Finally, the Court noted that there was widespread acceptance of the marriage of transsexuals in their assigned gender. In conclusion, the Court found that the impossibility for a post-operative transsexual to marry in her assigned gender violated Article 12 of the Convention. 53.     Two further cases are of interest in the present context: Parry v. the United Kingdom (dec.), no. 42971/05, ECHR 2006 ‑ XV, and R. and F. v. the United Kingdom (dec.), no. 35748/05, 28 November 2006. In both cases the applicants were a married couple, consisting of a woman and a male-to-female post-operative transsexual. They complained, inter alia , under Article 12 of the Convention that they were required to end their marriage if the second applicant wished to obtain full legal recognition of her change of gender. The Court dismissed that complaint as being manifestly ill-founded. It noted that domestic law only permitted marriage between persons of opposite gender, whether such gender derived from attribution at birth or from a gender recognition procedure, while same-sex marriages were not permitted. Similarly, Article 12 enshrined the traditional concept of marriage as being between a man and a woman. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950. The Court concluded that it fell within the State’s margin of appreciation as to how to regulate the effects of the change of gender on pre-existing marriages. In addition, it considered that, should they choose to divorce in order to allow the transsexual partner to obtain full gender recognition, the fact that the applicants had the possibility to enter into a civil partnership contributed to the proportionality of the gender recognition regime complained of. (b)     Application of the above principles to the present case 54.     The Court notes that Article 12 grants the right to marry to “men and women”. The French version provides that “ l’homme et la femme ont le droit de se marier ”. Furthermore, Article 12 grants the right to found a family. 55.     The applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa. The Court observes that, looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women. However, in contrast, all other substantive Articles of the Convention grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate. Moreover, regard must be had to the historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex. 56.     As regards the connection between the right to marry and the right to found a family, the Court has already held that the inability of any couple to conceive or parent a child cannot be regarded as per se removing the right to marry (see Christine Goodwin , cited above, § 98). However, this finding does not allow any conclusion regarding the issue of same-sex marriage. 57.     In any case, the applicants did not rely mainly on the textual interpretation of Article 12. In essence they relied on the Court’s case-law according to which the Convention is a living instrument which is to be interpreted in the light of present-day conditions (see E.B. v. France [GC], no. 43546/02, § 92, 22 January 2008, and Christine Goodwin , cited above, §§ 74-75). In the applicants’ contention, Article 12 should, in the light of present-day conditions, be read as granting same-sex couples access to marriage or, in other words, as obliging member States to provide for such access in their national laws. 58.     The Court is not persuaded by the applicants’ argument. Although, as it noted in Christine Goodwin (cited above), the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage (see paragraph 27 above). 59.     As the respondent Government, as well as the third-party Government, have rightly pointed out, the present case has to be distinguished from Christine Goodwin . In that case (cited above, § 103) the Court perceived a convergence of standards regarding marriage of transsexuals in their assigned gender. Moreover, Christine Goodwin is concerned with the marriage of partners who are of different gender, if gender is defined not by purely biological criteria but by taking other factors including gender reassignment of one of the partners into account. 60.     Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter, the Court has already noted that the latter has deliberately dropped the reference to “men and women” (see Christine Goodwin , cited above, § 100). The Commentary of the Charter, which became legally binding in December 2009, confirms that Article 9 is meant to be broader in scope than the corresponding Articles in other human rights instruments (see paragraph 25 above). At the same time, the reference to domestic law reflects the diversity of national regulations, which range from allowing same-sex marriage to explicitly forbidding it. By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriage to the States. In the words of the Commentary: “... it may be argued that there is no obstacle to recognise same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages.” 61.     Regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State. 62.     In that connection, the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society (see B. and L. v. the United Kingdom , cited above, § 36). 63.     In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple such as the applicants access to marriage. 64.     Consequently, there has been no violation of Article 12 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 65.     The applicants complained under Article 14 taken in conjunction with Article 8 of the Convention that they were discriminated against on account of their sexual orientation, since they were denied the right to marry and did not have any other possibility to have their relationship recognised by law before the entry into force of the Registered Partnership Act. The relevant parts of Article 8 read as follows: “1.     Everyone has the right to respect for his private and family life, ... 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 provides 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.” A.     Admissibility 1.     Exhaustion of domestic remedies 66.     The Government argued in their written observations that, before the domestic authorities, the applicants had complained exclusively about the impossibility to marry. Any other points raised explicitly or implicitly in their application to the Court, such as the question of any alternative legal recognition of their relationship, were to be declared inadmissible on the grounds of non-exhaustion. However, the Government did not explicitly pursue that argument in their oral pleadings before the Court. On the contrary, they stated that the issue of registered partnership could be regarded as being inherent in the present application. 67.     The applicants contested the Government’s non-exhaustion argument, asserting in particular that the aspect of being discriminated against as a same-sex couple formed part of their complaint and that they had also relied on the Court’s case-law under Article 14 taken in conjunction with Article 8 in their constitutional complaint. 68.     The Court reiterates that Article 35 § 1 of the Convention requires that complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Akdivar and Others v. Turkey , 16 Sep