On 10 September 2002 they requested the Office for matters of Personal Status (Standesamt) to proceed with the formalities to enable them to contract marriage.
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.
In addition he referred to the Administrative Court’s (Verwaltungsgerichtshof) case-law according to which it constituted an impediment to marriage if the two persons concerned were of the same sex.
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.
The relevant parts of its judgment read as follows: “Neither the principle of equality set forth in the Austrian Federal Constitution nor the European Convention on Human Rights (as evidenced by “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.
"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.
"Instead, the complaint must be dismissed as ill-founded.”[2] The applicants claimed that Austria's failure to legally recognise same-sex marriages constituted a violation of Article 12 ECHR, 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 Court unanimously dismissed this claim: "The Court notes that Article 12 grants the right to marry to “men and women”.
The French version provides « l’homme et la femme ont le droit de se marier ».
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 area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes (..) The Austrian Registered Partnership Act, which entered into force on 1 January 2010, reflects the evolution described above and is thus part of the emerging European consensus.
Though not in the vanguard, the Austrian legislator cannot be reproached for not having introduced the Registered Partnership Act any earlier[5]Judges Rozakis, Spielmann and Tulkens dissented in this respect, stating: Having identified a “relevantly similar situation” (para.
However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation.
In coming to that conclusion, the Court observed that despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between gay people, given the existence of little common ground between the Contracting States, this was an area in which they still enjoyed a wide margin of appreciation.
By referring in this way to the relevant domestic legislation, Article 8 of the Charter simply leaves it to States to decide whether they wish to afford homosexual couples the right to marry.