Schalk and Kopf v. Austria

European Court of Human Rights
24 June 2010


The applicants were a same-sex couple who wished to marry. As the national law did not allow marriage between partners of the same sex, their request was dissmissed.


The applicants complained that the authorities’ refusal to conclude their marriage violated their right to marry protected under the Article 12 of the Convention. The applicants also 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.

Court's ruling

As to the same-sex marriages, the Court noted that the institution of marriage has undergone major social changes since the adoption of the Convention, however there is no European consensus regarding same-sex marriage. It continued by observing that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. Therefore, the Court declined to rush in with its own judgment in place of that of the national authorities. Consequently, the Court found that Article 12 of the Convention does not impose an obligation on the respondent state to grant a same-sex couple such as the applicants access to marriage, therefore the applicants’ right to marry had not been violated.

Further, the Court considered that States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of legal recognition of a same-sex couple relationship. The Court observed that the national law gave the applicants a possibility to obtain a legal status equal or similar to marriage in many respects. Thus, the State had not exceeded its margin of appreciation in its choice of rights and obligations conferred by registered partnership, and there has been no violation of Article 14 taken in conjunction with Article 8 of the Convention.

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Last updated 08/11/2023