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HOSI Wien furious and appalled

in AUSTRIA, 04/11/2004

Austria’s Constitutional Court dismisses same-sex freedom of movement case

Homosexuelle Initiative (HOSI) Wien, Austria’s oldest and leading gay and lesbian organisation that just celebrated its 25th anniversary with a big party in Vienna City Hall last Friday, is appalled by the decision published last week by the country’s Federal Constitutional Court (Verfassungsgerichtshof, VfGH) in a complaint brought forward by a US
citizen.

Lon Williams who is married to a German citizen in the Netherlands challenged a decision of the Austrian immigration authorities which had refused to recognise the same-sex marriage done in the Netherlands and, consequently, to grant residence and work permits to Mr Williams. They insisted that they would have to apply the definition of marriage provided by Austrian law (limiting it to a relationship between a man and a woman).

However, EU law unequivocally provides for any third-country “spouse” to join his or her (EU) spouse exercising the right to free movement within EU territory. Due to this refusal of the Austrian immigration authorities, the German citizen, in the end, could not take up a position offered to him by an international organisation in Vienna, and the couple had to continue living and working in the Netherlands.

Williams basically argued that the right to marry is guaranteed under national – in this case Dutch – law (Article 9 of the EU Charter of Fundamental Rights). Therefore, the non-recognition of his marriage for the purpose of free movement and family reunion regulated by EU law is a violation of the Charter’s Article 21 prohibiting any discrimination on the grounds, inter alia, of sex or sexual orientation in the application of EU law by member states. In addition, Williams, referring to the July 2003
European Court of Human Rights judgment in Karner versus Austria, considers the discriminatory treatment by Austria’s immigration authorities to be a violation of the European Human Rights Convention.

However, the Constitutional Court ruled that there was neither a breach of EU law nor of
the human rights convention nor of Austria’s constitution.

“There are two things that makes the Court’s ruling so appalling”, explains HOSI Wien secretary-general Kurt Krickler. “Firstly, the Court’s arguments are partly wrong, completely arbitrary and offensive as the Court refuses to accept that the couple is already married and insinuates wrongly that the couple would seek its “other” relationship to be treated equally with marriage upon which the Court bases most of its negative substantiation.

Secondly, the Court refused to refer the case to the European Court of Justice in Luxembourg which is the competent body to decide upon controversial questions of EU legislation. Instead, the Constitutional Court dismissed the case, referring it to Austria’s Supreme Administrative Court which, however, cannot rule on whether the immigration authorities’ dealings had been unconstitutional or in breach of human rights.”

Lon Williams is also appalled by the ruling: “The decision of the VfGH is fundamentally flawed, and I am irreversibly opposed to every argument because the reasoning behind each finding is discriminatory even in the most primitive sense. With that I must reiterate that I am married, and, therefore, the freedom of movement, as provided by EU law, does come into play. My basic human rights have been arbitrarily denied, and my civil status has been deliberately ignored. Hence, I am determined to challenge every single legal statement from this decision no matter how long it takes, and I will not discontinue my legal proceedings until every question is clarified.”

“We have to wait for the Federal Administrative Court’s ruling now”, explains Krickler. “We hope that the decision will be a different one, or that at least the case now be referred to Luxembourg. In case the ruling is not any different from that of the Constitutional Court, the only legal remedy will be to file a complaint to the Strasbourg-based European Human Rights Court, which Mr Williams is determined to do, and HOSI Wien will continue to support him in that. But the problem with Strasbourg is that it can take up to 7-8 years before a ruling is handed down. If the Administrative Court will not refer the case to Luxembourg, we will finally have to consider persuading the Dutch government to take Austria to the
Luxembourg Court.”

More info:

Kurt Krickler
kurt.krickler@hosiwien.at
phone: +43-1-545 13 10 or +43-664-57 67 466.

The Court ruling plus a critical in-depth analysis of its arguments with rectifying counter arguments (both documents in German) are available at www.hosiwien.at – click on the first news item on top of the start page, scroll down the media release in German language, at the bottom of the page you will find the two documents for download.
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