The case concerns two women who were born in France. Both are French nationals, one, Giuseppina La Delfa, has Italian origins and this second citizenship. They now live and work in the Province of Avellino, in the South of Italy and have two kids.
The Court held that Italy is entitled under the law not to introduce equal marriage. However, the fact that the Italian State denies this fundamental right to its own citizens, does not entitle it to deny or tear this right away from those persons who lawfully had access to it under their national laws.
Quote from the judgment:
“… [T]here is no doubt that the failure [by Italy] to register the marriage of two French women, lawfully entered into in France . . . . only because they reside in Italy (which has not yet prepared forms to guarantee same-sex civil unions), would represent a violation of the exercise of the rights associated to their status as spouses. Italy cannot refuse to recognize such status only because it has not (yet) introduced forms of protection of such civil unions for its own citizens.”
This is the more important because the women have made use of the freedom of movement under EU law. Sharing the argument of the plaintiffs, the three-judge panel held that denying recognition by not entering their marriage into Italian civil status registries would represent a violation on the ground of both nationality and sexual orientation, a clear violation of the EU treaties and especially of the EU Charter of fundamental rights.
The Court made clear, however, that the specific situation of the plaintiffs – both holding the nationality of a State that opened up marriage – entails that an Italian only couple is not yet entitled to seek full recognition of a foreign union.
The lawyer of the couple, Dr Alexander Schuster, expressed satisfaction for the positive outcome. The decision – he states – pierces the veil of discrimination in marriage matters that still exists in Italy. This judgment affirms that EU law imposes a duty to provide for recognition of marriages of citizens that have such a right under their national laws and that have made use of their freedom to move and reside in another Member State.
This could well be the first ruling of its kind. No other judgment from a EU country not providing for any form of legal recognition of same-sex unions is known. The judgment is not yet final and likely to be reviewed by the Italian Supreme Court of Cassation.
One of the plaintiffs is Giuseppina La Delfa, President of the Italian rainbow families association Famiglie arcobaleno (www.famigliearcobaleno.org), a member of the European Network NELFA (www.nelfa.org).