The rights of same sex couples under European and Italian law (II)

• Author: Angela Maria Romito
• Position: University of Bari Aldo Moro - Italy
• Pages: 419-430

Bulletin of the Transilvania University of Braşo v

Series VII: Social Sciences • Law • Vol. 12(61) No. 2 – 2019

https://doi.org/10.31926/but.scl.2019.61.12.2.25

THE RIGHTS OF SAME SEX COUPLES UNDER

EUROPEAN AND ITALIAN LAW (II)

Angela Maria ROMITO1

Abstract: The article illustrates how the rights of same-sex couples are

regulated in the European area. The article first highlights the increasing

awareness, both within the ECHR system as well as the EU, that same-sex

couples are entitled to some form of legal protection at an international

level. The article then briefly presents the leading cases decided by the ECHR,

the CJEU, and finally by Italian courts. Finally, the article focuses on the

Italian legal system, and legislation adopted in 2016 that regulates same-sex

civil unions in Italy. The article ends with a critical evaluation regarding the

actual outcomes.

Key words: non-discrimination; same-sex couples; same-sex marriage; civil

unions; recognition of family status; right to privacy; international protection;

Charter of Fundamental Rights of the European Union.

1. The Recognition and Protection of Same-Sex Couples under EU Law

Although there is an increasing interest in recognizing and regulating the rights of

same-sex couples in Europe, there is a lack of uniformity among the national laws of

European Member States.

The lack of uniformity on the marital status of persons (and more generally on

substantive family law) among the European States is due to the fact that legislation that

refers to a person’s status, which is relevant to the rules on marriage, is a matter that

falls within the exclusive competence of Member States. Consequently, Member States

are free to decide whether same sex couples may legally marry (see judgments of CJEU

Garcia Avello C-148/02, EU:C:2003:539; Maruko , C-267/06, EU:C:2008:179, and Parris

C-443/15, EU:C:2016:897). However shared competence (between Member States and

the Union) exists in the Area of Freedom, Security, and Justice, where the European

Union is tasked by the Treaties to develop judicial cooperation in civil (including family)

matters having cross border implications. In the exercise of this competence, the

European Union may (in accordance with the provisions of the Treaties) take EU-wide

measures (Art 81 TFEU) or may authorize Member States, inter se, to establish family

law measures (Art 20 TEU). It is also conceivable that the European Union might exercise

1 University of Bari Aldo Moro - Italy, angelamaria.romito@uniba.it.