10.  The applicants’ details can be found in the Annex.
11.  These two applicants met in February 2007, and in 2009 they entered into a stable and committed relationship with each other.
12.  On 11 October 2009 Ms Mortagna moved to Toronto, Ontario, Canada for work purposes. A month later the two applicants decided to get married and on 27 August 2010 they married in Toronto.
13.  In the meantime, on 2 April 2010, Ms Mortagna’s employment came to an end and as a result she was no longer entitled to a residence permit. She therefore returned to Italy and since then has been cohabiting with Ms Orlandi.
14.  On 18 April 2011 their physical cohabitation was registered and since then they have been considered as a family unit for statistical purposes.
15.  On 9 September 2011 the two applicants asked the Italian Consulate in Toronto to transmit to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage.
16.  On 8 November 2011 the relevant documents were transferred.
17.  On 13 December 2011 the Commune of Ferrara informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples, and that although the law did not specify that couples had to be of the opposite sex, doctrine and jurisprudence had established that Article 29 of the Constitution referred to the traditional concept of marriage, understood as being a marriage between persons of the opposite sex. Thus, the spouses being of different sex was an essential element to qualify for marriage. Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order.
18.  These two applicants, who live in Italy, met in 2007 and entered into a stable and committed relationship with each other.
19.  On 9 January 2008 they started cohabiting in G.P.’s apartment, although D.P. maintained formal residence in his own apartment. In 2009 G.P. purchased a second property which, in the absence of any legal recognition, for practical and fiscal reasons remained in his name only. In 2010 G.P. purchased, through a mandate in the name of D.P (for the purposes of purchasing such property), a garage. In June 2011 the couple moved into D.P.’s apartment and established their home there. They have since been considered as a family unit for statistical purposes.
20.  On 16 August 2011 the two applicants got married in Toronto, Ontario, Canada. On 10 October 2011 they opened a joint bank account. On 12 January 2012, before a notary, the two applicants appointed each other reciprocally as guardians in the event of incapacitation (amministratore di sostegno).
21.  Following the applicants’ request, on 7 January 2012, the Italian Consulate in Toronto transmitted to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage.
22.  On 20 January 2012, the Commune of Peschiera Borromeo informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples. Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order.
23.  Following the entry into force of the new law (see paragraph 97 below), on 12 September 2016 the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received.
24.  According to documents dated 31 March 2017 submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 21 November 2016. A certification of this registration, submitted by the Government, is dated 16 May 2017.
25.  The two applicants met in Italy in 2002 and entered into a stable and committed relationship with each other. Mr Bray, who is Canadian, did not have a residence permit in Italy at the time, Mr Isita therefore travelled repeatedly to Canada.
26.  On 18 July 2005 the couple married in Vancouver, Canada. In the same year Mr Isita designated Mr Bray as his heir. In 2007 Mr Isita retired and moved to Canada permanently, although he maintained formal residence in Italy.
27.  In 2004 the two applicants had purchased some land together; in 2007 the couple purchased a further piece of land, and in 2008 they purchased a house and in 2009 a commercial property with an annexed cottage. In 2009 they also opened a joint bank account.
28.  On 10 October 2011 they asked the Civil Status Office to register their marriage contracted in Canada.
29.  On 25 November 2011 the Commune of Naples informed the two applicants that no such registration was possible. The decision noted that the Italian legal order did not allow marriage between same-sex couples as reiterated in Circular no. 55 of 2007 issued by the Ministry of Internal Affairs.
30.  Following guidance from the Mayor of Naples, directing the Civil Status Office of the commune to register such marriages (see below), Mr Mario Isita and Mr Grant Bray re-submitted an application to have their marriage registered. According to information sent to the applicants by email, their request was granted on 6 August 2014. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) the registration was cancelled on an unspecified date.
31.  On an unspecified date, following the entry into force of the new law, the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received.
32.  According to undated documents submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 27 October 2016. A certification of this registration, submitted by the Government, is dated 29 March 2017.
33.  These two applicants met in October 1995, and a month later entered into a stable and committed relationship with each other.
34.  In 1996 Mr Giartosio purchased a house in Rome, Italy and in spring 1998 the two applicants started to cohabit there. There they established their common residence.
35.  In 1998 the two applicants symbolically celebrated their union before their friends and family. In 2001 Mr Giartioso allowed limited access to his bank account in favour of Mr Goretti. In 2005 the two applicants drafted wills nominating each other as each other’s heirs.
36.  On 9 September 2008 the two applicants got married in Berkeley, California.
37.  In 2009 the applicants purchased property together and opened a joint bank account.
38.  Following their request of the same day, on 29 September 2011 the Commune of Rome informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order.
39.  On 1 October 2011 the couple filed a declaration with the Rome “Registry of civil unions” to the effect that they were entering into a civil union and constituting a de facto couple. The declaration is acknowledged by the relevant authorities, but has only symbolic value (see relevant domestic law and practice below).
40.  Following guidance from the Mayor of Rome directing the Civil Status Office of the commune to register such marriages (see below), on 15 October 2014 Mr Gianfranco Goretti and Mr Tommaso Giartosio re‑submitted an application to have their marriage registered. Their request was also granted and the marriage was registered. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) by a decision of the Prefect of Rome of 31 October 2014 the above-mentioned registration was cancelled.
41.  On 23 November 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union.
42.  These two applicants met in July 1993 and immediately entered into a committed and stable relationship with each other. A few weeks later Mr Dal Molin moved in with Mr Rampinelli in La Spezia, Italy.
43.  In 1997 the couple moved to Milan, Italy.
44.  In 1998 Mr Rampinelli moved to Germany for employment purposes, maintaining a long-distance relationship with Mr Dal Molin; however they met every week.
45.  In 1998 Mr Dal Molin purchased a property in Milan with financial assistance from Mr Rampinelli.
46.  In 2000 Mr Rampinelli returned to Italy; the couple moved to Mediglia and continued cohabiting.
47.  In 2007 Mr Rampinelli moved to the Netherlands, again for work purposes, maintaining however, a long-distance relationship with regular weekly visits to Italy.
48.  After being in a relationship for fifteen years, on 12 July 2008 the couple got married in Amsterdam, the Netherlands. In November 2008 the couple opened a joint bank account.
49.  In 2009 Mr Dal Molin left his job in Italy and moved to the Netherlands. As he was unemployed, he was totally dependent on his spouse. Mr Rampinelli also supported financially Mr Dal Molin’s mother, a victim of Alzheimer’s disease. They are under a system of separation of estates; however, their accounts are in joint names and their wills indicate each other as heirs.
50.  On 28 October 2011 the applicants requested the General Consulate in Amsterdam to transmit to the respective Civil Status Offices in Italy the relevant documents for the purposes of registration of their marriage.
51.  On 29 November 2011 the Commune of Mediglia informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order. No reply was received from the Commune of Milan.
52.  Following the guiding decision by the Mayor of Milan, mentioned above, the applicants also re-submitted an application to have their marriage registered. According to the information provided by the applicants on 30 January 2017, their marriage was never registered.
53.  However, on 4 October 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union.
54.  The two applicants married in The Hague on 1 June 2002.
55.  On 12 March 2004, the applicants being resident in Latina, Italy, they requested the Civil Status Office to register their marriage contracted abroad.
56.  On 11 August 2004 their request was rejected in accordance with the advice of the Ministry of Internal Affairs of 28 February 2004. The decision noted that the Italian legal order did not provide for the possibility of two Italian nationals of the same sex contracting marriage; this was a matter contrary to internal public order.
57.  On 19 April 2005 the applicants lodged proceedings before the competent Tribunal of Latina, requesting the registration of their marriage in the light of DPR 396/2000 (see relevant domestic law below).
58.  By a decision of 10 June 2005 the Latina Tribunal rejected the applicants’ claim. It noted that the registration of the marriage was not possible, because if such a marriage had been contracted in Italy it would not have been considered valid according to the current state of the law, as it failed to fulfil the most basic requirement, that of having a female and a male. In any event, the marriage contracted by the applicants had no consequence in the Italian legal order in so far as a marriage between two persons of the same sex, although validly contracted abroad, ran counter to international public order. Indeed same-sex marriage was in contrast with Italy’s history, tradition and culture, and the fact that so few European Union (EU) countries had provided such legislation went to show that it was not in line with the common principles of international law.
59.  An appeal by the applicants was rejected by a decision of the Rome Court of Appeal, filed in the relevant registry on 13 July 2006. The Court of Appeal noted that such registration could not take place, given that their marriage lacked one of the essential requisites to amount to the institution of marriage in the domestic order, namely the spouses being of different sexes.
60.  On 17 July 2007 the two applicants appealed to the Court of Cassation. In particular they highlighted, inter alia, that public order referred to in Article 18 of Law no. 218/95, had to be interpreted as international public order not national public order, and thus it had to be established whether same-sex marriage was against that order, in the light of international instruments.
61.  By a judgment of 15 March 2012 (no. 4184/12) the Court of Cassation rejected the appeal and confirmed the previous judgment. Noting the Court’s case-law in Schalk and Kopf v. Austria, (no. 30141/04, ECHR 2010) it acknowledged that a marriage contracted abroad by two persons of the same sex was indeed existent and valid, however, it could not be registered in Italy in so far as it could not give rise to any legal consequence.
62.  The Court of Cassation referred to its case-law, to the effect that civil marriages contracted abroad by Italian nationals had immediate validity in the Italian legal order as a result of the Civil Code and international private law. This would be so in so far as the marriage had been contracted in accordance with the laws of the foreign state in which it had been contracted, and that the relevant substantive requirements concerning civil status and the capacity to marry (according to Italian law) subsisted, irrespective of any non-observance of Italian regulations regarding the issuing of the banns or the subsequent registration. The former were subject solely to administrative sanctions and the latter were not conducive of any legal effects – since registration had the mere significance of giving publicity to a deed or act which was already valid on the basis of the locus regit actum principle. Thus, had the marriage been contracted by persons of the opposite sex, in the absence of any other fundamental requirements it would have been valid and conducive of legal effects in the Italian legal order. In that case the Civil Status Officer would have no option but to register the marriage. However, the case-law had shown that the opposite sex of the spouses was the most indispensable requirement for the “existence” of a marriage as a legally relevant act, irrespective of the fact that this was not stated anywhere explicitly in the relevant laws. Thus, the absence of such a requirement placed in question not only the validity of the marriage, but its actual existence, meaning that it would not be conducive to any legal effects (as opposed to a nullity). It followed that according to the ordinary law of the land, two same-sex spouses had no right to have their marriage contracted abroad registered.
63.  The Court of Cassation considered that the said refusal could not be based on the ground that such a marriage ran counter to public order (as dictated by the relevant circulars), but that the refusal was simply a consequence of the fact that it could not be recognised as a marriage in the Italian legal order.
64.  The Court of Cassation went on to note that the social reality had changed, yet the Italian order had not granted same-sex couples the right to marry as concluded in the Court of Cassation judgment no. 358/10 (which it cited extensively). Indeed the question whether or not to allow same-sex marriage, or the registration thereof, was not a matter of EU law, it being left to regulation by Parliament. However, the Italian legal order was also made up of Article 12 of the Convention as interpreted by the European Court of Human Rights in Schalk and Kopf (cited above); in that case the Court considered that the difference of sex of spouses was irrelevant, legally, for the purposes of marriage. It followed that, irrespective of the fact that it was a matter to be dealt with by the national authorities, it could no longer be a prerequisite for the “existence” of marriage. Moreover, the Court of Cassation noted that persons of the same sex living together in a stable relationship had the right to respect for their private and family life under Article 8 of the Convention; therefore, even if they did not have the right to marry or to register a validly contracted marriage abroad, in the exercise of the right to freely live with the inviolable status of a couple, they could bring actions before the relevant courts to claim, in specific situations related to their fundamental rights, treatment which was uniform with that afforded by law to married couples.
65.  In conclusion, the Court of Cassation found that the claimants had no right to register their marriage. However, this was so not because the marriage did not “exist” or was “invalid” but because of its inability to produce (as a marriage deed) any legal effect in the Italian order.
66.  Law no. 218 of 31 May 1995 regarding the reform of the Italian system of private international law, in so far as relevant, reads as follows:
Article 16
“i) Foreign law shall not be applied if its effects are contrary to public order.
 ii) In such cases, another law shall apply, in accordance with other connecting criteria provided in relation to the same subject matter. In the absence of any such connecting criteria, Italian law shall apply.”
Article 17
“The following provisions are without prejudice to the prevalence of Italian laws which in view of their object and scope shall be applied notwithstanding reference to the foreign law.”
Article 18
“Legal certificates released abroad shall not be registered in Italy if they are against public order.”
Article 27
“Capacity to enter into marriage and other conditions required to enter into marriage are regulated by the national law of each spouse at the time of the marriage, this without prejudice to the unmarried status (stato libero) of any of the spouses, obtained as a result of an Italian judgment or one which has been recognised in Italy.”
Article 28
“A marriage is valid, in relation to form, if it is considered as such by the law of the country where it is celebrated or by the national law of at least one of the spouses at the time of the marriage or by the law of the common state of residence at the time of the marriage.”
Article 29
“i) Personal relations between spouses are regulated by the national law common to both parties.
ii) Personal relations between spouses who have different nationalities or several nationalities common to both are regulated by the law of the state where their matrimonial life is mostly spent.”
Article 65
“Foreign documents concerning the status of individuals and the existence of family relations are recognised under Italian law if released by public authority of the State whose law is recognised by the present law ... unless those documents violate the public order...”
67.  Title VI of the First Book of the Civil Code deals with marriage, and is divided into six chapters (which are again divided into sections). Chapter III deals with the celebration of a civil marriage. Its Articles 115 and 130, in so far as relevant, read as follows:
Article 115
“A citizen is subject to the provisions of section one [conditions to contract marriage] of this Chapter even when contracting marriage in a foreign state according to the form applicable in such foreign state ...”
Article 130
“Nobody is entitled to claim the title of spouse and the legal consequences of marriage unless a certified copy of the celebration as recorded in the family registers is presented.”
Article 131
“A factual reality reflecting the recognition by society of a civil status, which is in conformity with the marriage deed, sanctions any defect of form present in the marriage deed.”
68.  Other pertinent provisions of the Civil Code read, in so far as relevant, as follows:
Article 167
“Each or both spouses may by public deed, or a natural third person may by means of a will, create a patrimonial fund for the needs of the family, assigning selected property, real estates or other goods which are recorded in the official Italian registers, or bonds.”
Article 230 bis
“1. In the absence of contractual relationships, family members who work permanently for the family business are entitled to maintenance, to the financial increments of the business, and to a share in the business, according to the type and standard of work done. 3. The notion of family member includes: the spouse, relatives within the third degree, and in-laws within the second degree. A family business is a business in which the spouse, relatives within the third degree, and in-laws within the second degree, work.”
Article 408
“... A guardian in the event of incapacity may be chosen by the interested person, by means of a public deed or an authenticated private deed.”
Article 540
“The surviving spouse is entitled to half of the entire estate of the deceased, subject to the provisions of Article 542 if there are surviving children.
Irrespective of whether there are any siblings or parents of the deceased, the surviving spouse is entitled to live in the family house and to use its furniture, whether it is their common possession or solely belongs to the deceased.”
Article 1321
“A contract is an agreement between two or more parties with the intent to establish, regulate or extinguish a patrimonial relationship between them.”
Article 1372
“Obligations arising from contracts have the force of law between the contracting parties ... They have no effects on third parties unless so provided by law.”
69.  Registration of civil status acquired abroad is provided for by the Decree of the President of the Republic no. 396 of 3 November 2000 entitled “Regulation of the revision and simplification of the legal order of civil status pursuant to Article 2 (12) of Law no. 127 of 15 May 1997” (DPR 396/2000). Its Article 16, regarding marriages contracted abroad, reads as follows:
“When both spouses are Italian nationals or one is an Italian national and the other a foreigner, a marriage abroad may be contracted before the competent diplomatic or consular authorities or before the local authorities according to the law of the place. In the latter case a copy of the marriage deed shall be deposited with the diplomatic and consular authority.”
70.  Article 17 relates to the transmission of the deed, and according to Article 18 deeds contracted abroad may not be registered if they are contrary to public order.
71.  For the purposes of guidance on the application of DPR 396/2000 the Ministry of Internal Affairs issued various circulars. Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs expressly provided that a marriage between two persons of the same sex, contracted abroad, cannot be registered in the Civil Status Registry in so far as it is contrary to the norms of public order. Similarly, Circular no. 55 of 18 October 2007 provided that the Italian legal order does not allow homosexual marriage, and a request for registration of such a marriage contracted abroad must be refused, it being considered contrary to the internal public order. These circulars are binding on the Officer for Civil Status, who is competent to ascertain that the requisites of law are fulfilled for the purposes of registration.
72.  In the Italian legal order marriage registration does not produce any ulterior legal effects (non ha natura costitutiva); it serves the purpose of acknowledgment in the public domain (significato certificativo, efficacia dichiarativa) in so far as it gives publicity to a deed or act which is already valid on the basis of the locus regit actum principle (the rule providing that, when a legal transaction which complies with the formalities required by the law of the country where it is carried out is also valid in the country where it is to be given effect).
73.  Extracts from relevant judgments read as follows:
Decision of 3 April 2009 of the Venice Tribunal
“The difference of sex constitutes an indispensable prerequisite, fundamental to marriage, to such an extent that the opposite hypothesis, namely that of persons of the same sex, is legally inexistent and certainly extraneous to the definition of marriage, at least in the light of the current legal framework.”
Rome Court of Appeal decision of 13 July 2006 and Treviso Tribunal decision of 19 May 2010
“[Marriage between two persons of the same sex] may not be registered in the Italian Civil Status Registry because it does not fulfil one of the essential requisites necessary for marriage in the internal order, namely the difference of sex of the spouses.”
Constitutional Court judgment no. 138/2010
74.  The Italian Constitutional Court in its judgment no. 138 of 15 April 2010 declared inadmissible the constitutional challenge (submitted by persons in a similar situation to those of the applicants) to Articles 93, 96, 98, 107, 108, 143, 143 bis and 231 of the Italian Civil Code, as it was directed to the obtainment of additional norms not provided for by the Constitution (diretta ad ottenere una pronnunzia additiva non costituzionalmente obbligata). The case had been referred to it by the ordinary courts in the ambit of a procedure challenging the refusal of the authorities to issue marriage banns for the claimants’ same-sex marriage.
75.  The Constitutional Court considered Article 2 of the Italian Constitution, which provided that the Republic recognises and guarantees the inviolable rights of the person, as an individual and in social groups where personality is expressed, as well as the duties of political, economic and social solidarity against which there was no derogation. It noted that by social group one had to understand any form of community, simple or complex, intended to enable and encourage the free development of any individual by means of relationships. Such a notion included homosexual unions, understood as a stable cohabitation of two people of the same sex, who have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and limits to be set by law – a juridical recognition of the relevant rights and duties. However, this recognition, which necessarily requires general legal regulation, aimed at setting out the rights and duties of the partners in a couple, could be achieved in other ways apart from the institution of marriage between homosexuals. As shown by the different systems in Europe, the question of the type of recognition was left to regulation by Parliament, in the exercise of its full discretion. Nevertheless, the Constitutional Court clarified that without prejudice to Parliament’s discretion, it could however intervene according to the principle of equality in specific situations related to a homosexual couple’s fundamental rights, where the same treatment between married couples and homosexual couples was called for. The court would in such cases assess the reasonableness of the measures.
76.  It went on to consider that it was true that the concepts of family and marriage could not be considered “crystallised” in reference to the moment when the Constitution came into effect, given that constitutional principles must be interpreted bearing in mind the changes in the legal order and the evolution of society and its customs. Nevertheless, such an interpretation could not be extended to the point where it affects the very essence of legal norms, modifying them in such a way as to include phenomena and problems which had not been considered in any way when it was enacted. In fact it appeared from the preparatory work to the Constitution that the question of homosexual unions had not at all been debated by the assembly, despite the fact that homosexuality was not unknown. In drafting Article 29 of the Constitution, the assembly had discussed an institution with a precise form and an articulate discipline provided for by the Civil Code. Thus, in the absence of any such reference, it was inevitable to conclude that what had been considered was the notion of marriage as defined in the Civil Code, which came into effect in 1942 and which at the time, and still today, established that spouses had to be of the opposite sex. Therefore, the meaning of this constitutional precept could not be altered by a creative interpretation. In consequence, the constitutional norm did not extend to homosexual unions, and was intended to refer to marriage in its traditional sense.
77.  Lastly, the court considered that, in respect of Article 3 of the Constitution regarding the principle of equality, the relevant legislation did not create an unreasonable discrimination, given that homosexual unions could not be considered equivalent to marriage. Even Article 12 of the European Convention on Human Rights and Article 9 of the Charter of Fundamental Rights did not require full equality between homosexual unions and marriages between a man and a woman, as this was a matter of Parliamentary discretion to be regulated by national law, as evidenced by the different approaches existing in Europe.
78.  Similarly, the Italian Constitutional Court, in its judgments nos. 276/2010 of 7 July 2010 filed in the registry on 22 July 2010, and 4/2011 of 16 December 2010 filed in the registry on 5 January 2011, declared manifestly ill-founded claims that the above-mentioned articles of the Civil Code (in so far as they did not allow marriage between persons of the same sex) were not in conformity with Article 2 of the Constitution. The Constitutional Court reiterated that juridical recognition of homosexual unions did not require a union equal to marriage, as shown by the different approaches undertaken in different countries, and that under Article 2 of the Constitution it was for the Parliament, in the exercise of its discretion, to regulate and supply guarantees and recognition to such unions.
79.  Generally, domestic jurisprudence until 2012 seemed to indicate that the impossibility of registering a homosexual marriage contracted abroad was a result of the fact that it could not be considered a marriage. However, this line of jurisprudence was put aside in the Court of Cassation judgment no. 4184/12 (in the case of the applicants) concerning the refusal of registration of same-sex marriages contracted abroad, and a further development occurred in 2014, as follows:
Court of Cassation judgment no. 4184/2012
80.  See paragraphs 61-65 above
Judgment of the Tribunal of Grosseto of 3 April 2014
81.  In the mentioned judgment, delivered by a court of first instance, it was held that the refusal to register a foreign marriage was unlawful. The court thus ordered the competent public authority to proceed with its registration. While the order was being executed, the case was appealed against by the State. By a judgment of 19 September 2014 the Court of Appeal of Florence, having detected a procedural error, quashed the first-instance decision and remitted the case to the Tribunal of Grosseto. By a first-instance decision of 2 February 2015 the Tribunal of Grosseto again ordered the competent public authority to proceed with its registration.
Proceedings leading to the Court of Cassation judgment no. 2487/2017
82.  On an unspecified date a certain GLD and RLH (a same-sex couple, one of whom was an Italian national) had requested their marriage contracted in France to be registered in the Civil Status Office of the relevant commune. However, the relevant mayor had refused their request. The couple instituted proceedings against such a decision, but were unsuccessful before the first-instance Tribunal of Avellino.
83.  By decree no. 1156, filed in the relevant registry on 8 July 2015, the Milan Court of Appeal found in favour of the claimants. Referring to the judgments of the Court of Cassation nos. 4148 of 2012 and 8097 of 2015, the Court of Appeal considered that since the marriage had been validly contracted in France, it could not be weakened because of a move to Italy, which would be discriminatory and would entail a breach of Article 12 of the Convention, as well as a breach of the right to free movement under European Union law. The Court of Appeal noted that the matter was regulated by Article 19 of legislative decree no. 396/2000 concerning registration of marriages contracted abroad, given that Article 28 of Law no. 218/1995 provided that a marriage was valid in respect of form if it is so considered in accordance with the laws of the country where it was contracted. It reiterated the principle that the same sex of the couple does not go against (non costitusice un limite) public order, be it national or international.
84.  The judgment became final on 15 July 2016 given that the Court of Cassation in its judgment no. 2487/2017 of 31 January 2017 found that the appeals had not been lodged according to the relevant procedures.
85.  In a case before the Tribunal of Reggio Emilia [at first–instance], the claimants (a same-sex couple) had not requested the tribunal to recognise their marriage entered into in Spain, but to recognise their right to family life in Italy, on the basis that they were related. The Tribunal of Reggio Emilia, by means of an ordinance of 13 February 2012, in the light of the EU directives and their transposition into Italian law, as well as the EU Charter of Fundamental Rights, considered that such a marriage was valid for the purposes of obtaining a residence permit in Italy.
Constitutional Court judgment no. 170/14 of 11 June 2014
86.  Judgment no. 170/14 of the Constitutional Court found a breach of the Constitution, as a result of the legally obligatory termination of a marriage, and the impossibility of the partners in that case (who had become same-sex partners following gender reassignment of one of the partners) to obtain an alternative recognition of their union. In that case the Constitutional Court also left to the legislature the task of urgently enacting another form of registered cohabitation, one which would protect the couple’s rights and obligations.
Court of Cassation judgment no. 8097/2015
87.  In the light of the findings of the Constitutional Court judgment no. 170/14 of 11 June 2014, the Court of Cassation held that it was necessary to maintain in force the rights and obligations pertaining to the marriage (after one of the spouses had changed sex) until the legislator provided for an alternative means of recognition.
Judgment of the Court of Cassation no. 2400/15
88.  In a case concerning the refusal to issue marriage bans to a same‑sex couple who had so requested, the Court of Cassation, in its judgment of 9 February 2015, rejected the claimants’ request. Having considered recent domestic and international case-law, it concluded that - while same‑sex couples had to be protected under Article 2 of the Italian Constitution and that it was for the legislator to take action to ensure recognition of the union between such couples - the absence of same sex-marriage was not incompatible with the applicable domestic and international system of human rights. Accordingly, the lack of same sex-marriage could not amount to discriminatory treatment, as the problem in the current legal system revolved around the fact that there was no other available union apart from marriage, be it for heterosexual or homosexual couples. However, it noted that the court could not establish through jurisprudence matters which went beyond its competence.
89.  Following decisions of some mayors (including the mayors of Bologna, Naples, Rome and Milan) to register same‑sex marriages validly contracted abroad, by a circular issued on 7 October 2014 by the Ministry of Internal Affairs, addressed to the Prefects of the Republic, the Government Commissioners of the Provinces of Bolzano and Trento, and the President of the Regional Government of Val D’Aosta, the following instruction was issued:
“Where mayors have issued directives concerning the registration of same-sex marriages issued abroad, and in the event that these directives have been enforced, you are requested to formally invite such mayors to withdraw such directives and cancel any such registrations which have already taken effect. At the same time you should warn them that in the absence of any action on their part the acts illegitimately affected will be annulled ex officio in accordance with the provisions of Article 21 nonies of Law no. 241 of 1990 and Article 54 (3) and (11) of legislative decree 267/2001.”
90.  By a first-instance judgment no. 3907 of 12 February 2015 filed in the relevant registry on 9 March 2015, the Administrative Tribunal of Rome, Lazio, reiterating that there existed no right to have registered same‑sex marriages contracted abroad (and therefore confirming the legitimacy of the content of the circular of 7 October 2014), nevertheless declared the above order of 7 October 2004 null and void. Having examined the relevant legal framework, it considered that the Central Administrative Authority and Prefects were not competent to order the annulment of any such registrations, such competence being reserved solely to the judicial authorities.
91.  This decision was overturned on appeal by the Supreme Administrative Court in its judgment of 8 October 2015, filed in the relevant registry on 26 October 2015.
92.  The court noted that Article 27 and 28 of Law no. 218 of 31 May 1995 provided that the subjective conditions for the validity of a marriage are to be regulated by the national law of each spouse to be, and that a marriage is valid, in respect of its form, if it is considered to be valid according to the law of the place where it has been celebrated or the national law of at least one of the spouses. Furthermore, Article 115 of the Civil Code explicitly subjected Italian nationals to the relevant civil laws in relation to the conditions necessary to contract marriage, even if the marriage is contracted abroad. A combined reading of those provisions demands the identification of the mandatory substantive requirements (particularly, the status and capacity of the spouses-to-be) which would allow such a marriage to produce its ordinary legal effects in the national legal order. The difference in sex of the spouses to be was the first condition for the validity of a marriage according to the relevant articles of the civil code, and in line with the long cultural and legal tradition of the institution of marriage. It followed that same-sex marriage was devoid of one of the essential elements enabling it to produce any legal effect in the Italian legal order.
In consequence, a State official whose duty it is to ensure (before registering a marriage) that all the formal and substantive requirements have been fulfilled, would be unable to register a same-sex marriage contracted abroad in so far as it does not fulfil the requirement of having a “husband and wife” as required by law (section 64 of Law no. 396/2000). For this reason such a marriage could not be registered, even assuming it were not against public order.
Quite apart from this inability arising from the ordinary Italian legal order, relying on the relevant constitutional court judgments (nos. 138 of 2010 and no. 170 of 2014) the court found that neither could any obligation be derived from the constitution or international instruments to which Italy was a party. Nor could the recent ECtHR judgment in Oliari and Others v. Italy (nos. 18766/11 and 36030/11, 21 July 2015) supersede the obstacles created by Article 29 of the Constitution as interpreted by the domestic courts. Indeed that judgment had solely found for the need to introduce a relevant legal framework for the protection of same-sex unions, and reiterated that the introduction of same-sex marriage was a matter to be left to the State. The same conclusions had to be reached even in connection with the rights to freedom of movement and residence as understood in the relevant EU legislation, in so far as the recognition of same sex-marriages celebrated abroad fell outside the scope of EU legislation. It followed that in the absence of a right to same-sex marriage, the latter could not be compared to heterosexual marriage. Indeed, admitting the registration of same-sex marriages obtained abroad, irrespective of the absence of legislation to that effect, would mean superseding the choice of the national parliament.
In relation to the nullity of the order of 7 October 2014, it noted that the mayor was subordinate to the Minister and, in line with the relevant norms, in circumstances such as the present one the Prefect had the power ex officio to quash any illegitimate measures taken by the mayor. Indeed the power of the ordinary judge to delete such registrations risked creating uncertainty on such a delicate matter, because of the independence of such a body and the possibility of conflicting decisions. It followed that the appeal was upheld and the first-instance decision quashed.
93.  In more or less the same time, similar proceedings were on-going in connection with the Mayor of Milan’s decision of 9 October 2014 to register a same-sex marriage obtained abroad and the circular of 7 October 2014 (inviting the mayors to cancel such registrations), and the subsequent cancellation, ex officio, of such registrations by means of a decree of 4 November 2014 as well as further annotations made on 11 February 2015 resulting from the latter decree.
94.  By a first-instance judgment no. 20137 of 2015, the Administrative Tribunal of Lombardia, found in favour of the mayor and annulled the subsequent impugned acts (but not the circular of 7 October 2014). It considered that in his supervisory powers a Prefect can issue orders or directives in the ambit of the functioning of the Civil Status Office. However, the Prefect cannot issue an act of annulment in the context of registrations of same-sex marriages obtained abroad, given that the applicable laws give the power to rectify or annul erroneously-registered marriages only to the ordinary judicial authorities.
95.  By means of a judgment no. 05048/16 of the Supreme Administrative Court, published on 1 December 2016, the first-instance decision to annul the impugned acts was confirmed on the basis of a different reasoning. Having analysed all the relevant laws and jurisprudence, the Supreme Administrative Court found that no law had attributed to the Minister for Internal affairs (or the Prefect) the power of annulling acts performed by mayors in order to register marriages. Indeed such power was attributed to the Government in its collegial composition. Further, it was not for the court to determine during such proceedings whether the decisions of the mayors to register such marriages were legitimate or not.
96.  A set of similar proceedings concerning the registrations made by the Mayor of Udine was also on-going at the same time, and was decided in favour of the mayor in a first-instance judgment no. 228 of 2015 of the Administrative Tribunal of Friuli Venezia Giulia, which annulled the impugned acts. The judgment was confirmed on appeal by means of a judgment no. 05047/16 of the Supreme Administrative Court published on 1 December 2016 on the basis of the reasoning referred to in the previous paragraph.
97.  By Law no. 76 of 20 May 2016, hereinafter “Law no. 76/2016”, entitled “Regulation of civil unions between people of the same sex and the rules relating to cohabitation”, the Italian legislator provided for civil unions in Italy. The latter legislation came into force on 5 June 2016.
98.  The same legislation, in particular its Article 28 (a) and (b), provided that within six months from its entry into force, the Italian Government was delegated to adopt legislative decrees providing for the modification of relevant laws concerning private international law, in order to provide for the applicability of same-sex civil unions as provided in Italian law, to persons who have contracted marriage, civil union or any other corresponding union abroad.
99.  By decree no. 144 of the President of the Council of Ministers of 23 July 2016, which came into force on 29 July 2016, transitory provisions were adopted pending the relevant legislative decrees mentioned above (under Article 28). In particular, it was provided that marriages or civil unions contracted abroad are to be registered through the consular offices.
100.  On 19 January 2017 three legislative decrees (nos. 5, 6 and 7 of 19 January 2017) were adopted in line with the above requirements and on 27 February 2017 the relative decrees allowing for the entry into force of such measures as well as legislative changes to other relevant laws were adopted by the Ministry for the Interior.
101.  Until then Italian domestic law did not provide for any alternative union to marriage, either for homosexual couples or for heterosexual ones. The former had thus no means of recognition (see also Oliari and Others, cited above, § 43, concerning a report of 2013 prepared by Professor F. Gallo (then President of the Constitutional Court)).
102.  Nevertheless, some cities had established registers of “civil unions” between unmarried persons of the same sex or of different sexes: among others are the cities of Empoli, Pisa, Milan, Florence and Naples. However, the registration of “civil unions” of unmarried couples in such registers has a merely symbolic value.
103.  Before the adoption of Law no. 76/2016, cohabitation agreements were not specifically provided for in Italian law.
104.  Protection of cohabiting couples more uxorio had been derived from Article 2 of the Italian Constitution, as interpreted in various court judgments over the years (post 1988). In more recent years (2012 onwards) domestic judgments had also considered cohabiting same-sex couples as deserving such protection.
105.  In order to fill the lacuna in the written law, with effect from 2 December 2013 it had been possible to enter into “cohabitation agreements”, namely a private deed, which did not have a specified form provided by law, and which may be entered into by cohabiting persons, be they in a parental relationship, partners, friends, simple flatmates or carers, but not by married couples. Such contracts mainly regulated the financial aspects of living together, cessation of the cohabitation, and assistance in the event of illness or incapacity[1].
106.  The relevant Council of Europe materials can be found in Oliari and Others (cited above, §§ 56-61).
107.  The relevant European Union law can be found in Oliari and Others (cited above, §§ 62-64).
108.  Of particular interest is Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Its Article 2 contains the following definition:
“ ‘Family member’ means:
(a) the spouse
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage in accordance with the conditions laid down in the relevant legislation of the host Member State.
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)
(d) the dependent direct relative in the ascending line and those of the spouse or partner as defined in point (b);”
109.  According to the European Commission «Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States» COM(2009) 313 final (pg. 4):
“Marriages validly contracted anywhere in the world must be in principle recognized for the purpose of the application of the Directive.
Forced marriages, in which one or both parties is married without his or her consent or against his or her will, are not protected by international or Community law. ...
Member States are not obliged to recognise polygamous marriages, contracted lawfully in a third country, which may be in conflict with their own legal order. ...
The Directive must be applied in accordance with the non-discrimination principle enshrined in particular in Article 21 of the EU Charter.”
110.  The comparative law material available to the Court on the introduction of official forms of non-marital partnership within the legal systems of Council of Europe (CoE) member States shows that fifteen countries (Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom) recognise same-sex marriage.
111.  Nineteen member States (Andorra, Austria, Belgium, Cyprus, Croatia, the Czech Republic, Estonia, France, Greece, Hungary, Italy (as from 2016), Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples (by itself or besides marriage). In certain cases such a union may confer the full set of rights and duties applicable to the institute of marriage, and thus be equal to marriage in everything but name, as for example in Malta. Portugal does not have an official form of civil union. Nevertheless, the law recognises de facto civil unions[2], which have automatic effect and do not require the couple to take any formal steps for recognition. Denmark, Finland, Germany, Norway, Sweden, Ireland and Iceland used to provide for registered partnership in the case of same-sex unions, this was however abolished in favour of same-sex marriage.
112.  It follows that to date (2017) twenty-seven countries out of the forty‑seven CoE member states have already enacted legislation permitting same‑sex couples to have their relationship recognised as a legal marriage or as a form of civil union or registered partnership.
113.  According to information available to the Court (dated July 2015), concerning the practice of twenty-seven member States which did not at the time provide for same sex-marriage (Andorra, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, Germany, Greece, Ireland, Lithuania, the former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Poland, Romania, Russia, Serbia, Slovenia, Switzerland, Turkey and Ukraine), concerning the registration of same-sex marriages contracted abroad, the following situation emerges: all of these member States, with the exception of Andorra, Malta, as well as Estonia (following a court ruling of 2016), refuse to allow same-sex couples to register domestically a same‑sex marriage validly contracted abroad. The reasons for refusal vary; some member States base their position on the legal definition of marriage as a union between a man and a woman only, and some States go further and rely on grounds of public order, tradition and procreation.
114.  The twenty-five member States which did not at the time allow same‑sex marriage registration can be divided into two groups: those that allowed for married same-sex couples to register their relationship as a same‑sex partnership (nine member States - Austria, Croatia, Czech Republic, Estonia (until 2016), Finland, Germany, Ireland, Slovenia and Switzerland) and those that did not (the remaining sixteen member States). Of the EU member States surveyed none reported a distinction in their legislation between marriages obtained within the EU or elsewhere.
115.  On 26 June 2015, in the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health et al, the Supreme Court of the United States held that same-sex couples may exercise the fundamental right to marry in all States, and that there was no lawful basis for a State to refuse to recognise a lawful same-sex marriage performed in another State on the ground of its same-sex character (see for details, Oliari and Others, cited above, § 65).