Doc. 10640

5 July 2005

Legal recognition of same-sex partnerships in Europe

Motion for a recommendation

presented by Mr Jurgens and others

1.       The issue of legal recognition of same-sex relationships is a complex one, from both a social and a legal perspective. Whilst most attention has been paid to the legal status which may be granted to same-sex partnerships in themselves, other aspects include matters concerning tax and social security systems, inheritance rights, immigration rights and employment rights.

2.       Although the European Convention on Human Rights does not directly address the issue, sexual orientation falls within the category of “other status” as a ground on which discrimination is prohibited under Article 14 and Protocol 12.

3.       Certain aspects of the issue of same-sex relationships may engage specific Convention rights, including the right to respect for private and family life under Article 8, the right to marry under Article 12 and the right to protection of property under Article 1 of Protocol No. 1, and thus may raise issues under Article 14; other aspects, if relating to rights set forth in national law, may raise issues under Protocol 12.

4.       It should be noted, however, that the legal regime established under the ECHR is not cast in absolute terms. For example, rights under Article 8 and Article 1 of Protocol No. 1 may be limited by competing public interests, and the right to marry is protected for “men and women of marriageable age," “according to national laws governing the exercise of this right”. Furthermore, differential treatment of persons in analogous situations or – relevant as between same-sex couples who are unable to contract civil marriages and heterosexual couples who choose not to marry – similar treatment of persons whose situations are significantly different only amounts to unlawful discrimination if it has no objective and reasonable justification: in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means pursued and that aim.

5.       Nevertheless, the system of the ECHR is based on certain fundamental principles, including the existence of democratic societies which are tolerant, pluralist and broadminded. Thus whilst states do enjoy a wide margin of appreciation in matters of morals, a “predisposed bias on the part of a heterosexual majority against a homosexual minority” cannot justify differential treatment or interferences with protected rights.

6.       Across contemporary Europe there is enormous variation with respect to legal recognition of same-sex relationships. For example, in a number of countries, such as the Netherlands, Belgium and (most recently) Spain, same-sex couples may contract civil marriage, whilst in other countries, such as Denmark, Finland, Iceland, Norway, Sweden, France, Germany, the United Kingdom and (most recently) Switzerland, same-sex couples may obtain, by concluding an official cohabitation contract, varying degrees of legal recognition and protection of the rights afforded to heterosexual married couples. The legal systems of most Council of Europe member States, however, do not contain such provisions, a distinction which also applies to other aspects of the issue.

7.       Whilst recognising and respecting the social particularities of Council of Europe member States, the Assembly decides to study the situation of legal recognition of same-sex partnerships in Europe from the perspective of the ECHR and the jurisprudence of the Court, as outlined above, and to make such recommendations as may be appropriate.

Signed ¹:

JURGENS, Erik, Netherlands, SOC

AHLQVIST, Birgitta, Sweden, SOC

AUSTIN, John, United Kingdom, SOC

BARTUMEU CASSANY, Jaume, Andorra, SOC

CILEVIČS, Boriss, Latvia, SOC

ERR, Lydie, Luxembourg, SOC

EXNER, Václav, Czech Republic, UEL

GAJDŮŠKOVÁ, Alena, Czech Republic, SOC

HÄGG, Carina, Sweden, SOC

ØSTERGAARD, Morten, Denmark, ALDE

RAPSON, Syd, United Kingdom, SOC

WESTERLUND PANKE, Majléne, Sweden, SOC

¹        SOC: Socialist Group

      EPP/CD: Group of the European People’s Party

      ALDE: Alliance of Liberals and Democrats for Europe

      EDG: European Democratic Group

      UEL: Group of the Unified European Left

      NR: not registered in a group