CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juillet 2015

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border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s33FC581C { width:28.88%; border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }       FOURTH SECTION           CASE OF OLIARI AND OTHERS v. ITALY   (Applications nos. 18766/11 and 36030/11)                     JUDGMENT     STRASBOURG   21 July 2015     FINAL   21/10/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Oliari and Others v. Italy, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Päivi Hirvelä, President,   Guido Raimondi,   Ledi Bianku,   Nona Tsotsoria,   Paul Mahoney,   Faris Vehabović,   Yonko Grozev, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 30 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   18766/11 and 36030/11) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Italian nationals, Mr Enrico Oliari, Mr   A., Mr   Gian Mario Felicetti, Mr Riccardo Perelli Cippo, Mr Roberto Zaccheo and Mr Riccardo Zappa (“the applicants”), on 21 March and 10 June 2011 respectively. 2.     The first two applicants were represented by Mr A. Schuster, a lawyer practising in Trent. The remaining applicants were represented by Ms   M.   D’Amico, Mr M. Clara and Mr C. Pitea, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Ms Ersiliagrazia Spatafora. 3.     The applicants complained that the Italian legislation did not allow them to get married or enter into any other type of civil union and thus they were being discriminated against as a result of their sexual orientation. They cited Articles 8, 12 and 14 of the Convention. 4.     On 3 December 2013 the Chamber to which the case was allocated decided that the complaints concerning Article 8 alone and in conjunction with Article 14 were to be communicated to the Government. It further decided that the applications should be joined. 5.     On 7 January 2013 the Vice-President of the Section to which the case had been allocated decided to grant anonymity to one of the applicants under Rule 47 § 3 of the Rules of Court. 6.     Written observations were also received from FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, Associazione Radicale Certi Diritti, and ECLJ (European Centre for Law and Justice), which had been given leave to intervene by the Vice-President of the Chamber (Article   36 § 2 of the Convention). Mr Pavel Parfentev on behalf of seven Russian NGOS (Family and Demography Foundation, For Family Rights, Moscow City Parents Committee, Saint-Petersburg City Parents Committee, Parents Committee of Volgodonsk City, the regional charity “Svetlitsa” Parents’ Culture Centre, and the “Peterburgskie mnogodetki” social organisation), and three Ukrainian NGOS (the Parental Committee of Ukraine, the Orthodox Parental Committee, and the Health Nation social organisation), had also been given leave to intervene by the Vice-President of the Chamber. However, no submissions have been received by the Court. 7.     The Government objected to the observations submitted by FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, as they had reached the Court after the set deadline, namely on 27 March 2014 instead of 26 March 2014. The Court notes that at the relevant time the Vice-President of the Chamber did not take a decision to reject the submissions presented, which were in fact sent to the parties for comment. The Court, having considered that the observations were anticipated by e ‑ mail and received by the Court at 2.00 a.m. on 27 March 2014, and that the hard copy received by fax later that day contained an apology as well as an explanation for the delay, rejects the Government’s objection. 8.     The applicants in application no. 18766/11 requested that an oral hearing be held in the case. On 30 June 2015 the Court considered this request. It decided that having regard to the materials before it an oral hearing was not necessary. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The details concerning the applicants may be found in the Annex. The background to the case 1.     Mr Oliari and Mr A.   10.     In July 2008 these two applicants, who were in a committed stable relationship with each other, declared their intention to marry, and requested the Civil Status Office of the Trent Commune to issue the relevant marriage banns. 11.     On 25 July 2008 their request was rejected. 12.     The two applicants challenged the decision before the Trent Tribunal (in accordance with Article 98 of the Civil Code). They argued that Italian law did not explicitly prohibit marriage between persons of the same sex, and that, even if that were the case, such a position would be unconstitutional. 13.     By a decision of 24 February 2009 the Trent Tribunal rejected their claim. It noted that the Constitution did not establish the requirements to contract marriage, but the Civil Code did and it precisely provided that one such requirement was that spouses be of the opposite sex. Thus, a marriage between persons of the same sex lacked one of the most essential requirements to render it a valid legal act, namely a difference in sex between the parties. In any event there was no fundamental right to marry, neither could the limited law provisions constitute discrimination, since the limitations suffered by the applicants were the same as those applied to everyone. Furthermore, it noted that European Union (“EU”) law left such rights to be regulated within the national order. 14.     The applicants appealed to the Trent Court of Appeal. While the court reiterated the unanimous interpretation given to Italian law in the field, namely to the effect that ordinary law, particularly the Civil Code, did not allow marriage between people of the same sex, it considered it relevant to make a referral to the Constitutional Court in connection with the claims of unconstitutionality of the law in force. 15.     The Italian Constitutional Court in judgment no. 138 of 15   April 2010 declared inadmissible the applicants’ constitutional challenge 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 pronunzia additiva non costituzionalmente obbligata ). 16.     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 – 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 of married couples and homosexual couples was called for. The court would in such cases assess the reasonableness of the measures. 17.     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 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 affected 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 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. 18.     Lastly, the court considered that, in respect of Article 3 of the Constitution regarding the principle of equality, the relevant legislation did not create 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. 19.     In consequence of the above judgment, by a decision ( ordinanza ) lodged in the relevant registry on 21 September 2010 the Court of Appeal rejected the applicants’ claims in full. 2.     Mr Felicetti and Mr Zappa 20.     In 2003 these two applicants met and entered into a relationship with each other. In 2004 Mr Felicetti decided to undertake further studies (and thus stopped earning any income), a possibility open to him thanks to the financial support of Mr Zappa. 21.     On 1 July 2005 the couple moved in together. In 2005 and 2007 the applicants wrote to the President of the Republic highlighting difficulties encountered by same-sex couples and soliciting the enactment of legislation in favour of civil unions. 22.     In 2008 the applicants’ physical cohabitation was registered in the authorities’ records. In 2009 they designated each other as guardians in the event of incapacitation ( amministratori di sostegno ). 23.     On 19 February 2011 they requested their marriage banns to be issued. On 9 April 2011 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below). 24.     The two applicants did not pursue the remedy provided for under Article 98 of the Civil Code, in so far as it could not be considered effective following the Constitutional Court pronouncement mentioned above. 3.     Mr Perelli Cippo and Mr Zacheo 25.     In 2002 these two applicants met and entered into a relationship with each other. In the same year they started cohabiting and since then they have been in a committed relationship. 26.     In 2006 they opened a joint bank account. 27.     In 2007 the applicants’ physical cohabitation was registered in the authorities’ records. 28.     On 3 November 2009 they requested that their marriage banns be issued. The person in charge at the office did not request them to fill in the relevant application, simply attaching their request to a number of analogous requests made by other couples. 29.     On 5 November 2009 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below). 30.     Mr Perelli Cippo and Mr Zacheo challenged the decision before the Milan Tribunal. 31.     By a decision ( decreto ) of 9 June 2010 lodged in the relevant registry on 1 July 2010 the Milan Tribunal rejected their claim, considering that it was legitimate for the Civil Status Office to refuse a request to have marriage banns issued for the purposes of a marriage between persons of the same sex, in line with the finding of the Constitutional Court judgment no.   138 of 15 April 2010. 32.     The applicants did not lodge a further challenge ( reclamo ) under Article 739 of the Code of Civil Procedure, in so far as it could not be considered effective following the Constitutional Court pronouncement. II.     RELEVANT DOMESTIC LAW AND INTERNATIONAL LAW AND PRACTICE A.     Relevant domestic law and practice 1.     The Italian Constitution 33.     Articles 2, 3 and 29 of the Italian Constitution read as follows: Article 2 “The Republic recognises and guarantees inviolable human rights, both as an individual and in social groups where personality is developed, and requires the fulfilment of obligations of political, economic, social solidarity, against which there is no derogation.” Article 3 “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.” Article 29 “The Republic recognises the rights of the family as a natural society founded on marriage. Marriage is based on the moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family.” 2.     Marriage 34.     Under Italian domestic law, same-sex couples are not allowed to contract marriage, as affirmed in the Constitutional Court judgment no.   138 (mentioned above). 35.     The same has been affirmed by the Italian Court of Cassation in its judgment no. 4184 of 15   March 2012 concerning two Italian citizens of the same sex who got married in the Netherlands and who had challenged the refusal of Italian authorities to register their marriage in the civil status record on the ground of the “ non-configurability as a marriage ”. The Court of Cassation concluded that the claimants had no right to register their marriage, not because it did not exist or was invalid, but because of its inability to produce any legal effect in the Italian order. It further held 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 European Convention; therefore, in the exercise of the right to freely live their inviolable status as a couple they may bring an action before a court to claim, in specific situations related to their fundamental rights, the same treatment as that afforded by law to married couples. 36.     Furthermore, the Constitutional Court in its judgment no.   170/2014 concerning “forced divorce” following gender reassignment of one of the spouses, found that it was for the legislator to ensure that an alternative to marriage was provided, allowing such a couple to avoid the transformation in their situation, from one of maximum legal protection to an absolutely uncertain one. The Constitutional Court went on to state that the legislator had to act promptly to resolve the legal vacuum causing a lack of protection for the couple. 3.     Other relevant case-law in the context of same-sex couples 37.     In a case before the Tribunal of Reggio Emilia, 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. 38.     In the judgment of the Tribunal of Grosseto of 3 April 2014, 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 registration of the marriage. 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. 4.     Cohabitation agreements 39.     Cohabitation agreements are not specifically provided for in Italian law. 40.     Protection of cohabiting couples more uxorio has always 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 have also considered cohabiting same ‑ sex couples as deserving such protection. 41.     In order to fill the lacuna in the written law, with effect from 2   December 2013 it has been possible to enter into “cohabitation agreements”, namely a private deed, which does 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 regulate the financial aspects of living together, cessation of the cohabitation, and assistance in the event of illness or incapacity [1] . 5.     Civil unions 42.     Italian domestic law does not provide for any alternative union to marriage, either for homosexual couples or for heterosexual ones. The former have thus no means of recognition. 43.     In a report of 2013 prepared by Professor F. Gallo (then President of the Constitutional Court) addressed to the highest Italian constitutional authorities, the latter stated: “Dialogue is sometimes more difficult with the [Constitutional] Court’s natural interlocutor. This is particularly so in cases where it solicits the legislature to modify a legal norm which it considered to be in contrast with the Constitution. Such requests are not to be underestimated. They constitute, in fact, the only means available to the [Constitutional] Court to oblige the legislative organs to eliminate any situation which is not compatible with the Constitution, and which, albeit identified by the [Constitutional] Court, does not lead to a pronouncement of anti-constitutionality. ... A request of this type which remained unheeded was that made in judgment no.   138/10, which, while finding the fact that a marriage could only be contracted by persons of a different sex to be constitutional compliant, also affirmed that same-sex couples had a fundamental right to obtain legal recognition, with the relevant rights and duties, of their union. It left it to Parliament to provide for such regulation, by the means and within the limits deemed appropriate.” 44.     Nevertheless, some cities have 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. 6.     Subsequent domestic case-law 45.     Similarly, the Italian Constitutional Court, in its judgments nos.   276/2010 of 7 July 2010 lodged in the registry on 22 July 2010, and   4/2011 of 16 December 2010 lodged 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. More recently, in a case concerning the refusal to issue marriage banns to a same-sex couple who had so requested, the Court of Cassation, in its judgment no. 2400/15 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 legislature 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: 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. 7.     Recent and current legislation 46.     The House of Deputies has recently examined Bill no. 242 named “Amendments to the Civil Code and other provisions on equality in access to marriage and filiation by same-sex couples” and Bill no. 15 “Norms against discrimination in matrimony”. The Senate in 2014 examined Bill no.   14 on civil unions and Bill no. 197 concerning amendments to the Civil Code in relation to cohabitation, as well as Bill no. 239 on the introduction into the Civil Code of an agreement on cohabitation and solidarity. 47.     A unified bill concerning all the relevant legal proposals was presented to the Senate in 2015 and was adopted by the Senate on 26   March 2015 as a basic text to enable further discussions by the Justice Commission. Amendments were to be submitted by May 2015, and a text presented to the two Chambers constituting Parliament by summer 2015. On 10 June 2015 the Lower House adopted a motion to favour the approval of a law on civil unions, taking particular account of the situation of persons of the same sex. 8.     Remedies in the domestic system 48.     A decision of the Civil Status Office may be challenged (within thirty days) before the ordinary tribunal, in accordance with Article 98 of the Civil Code. 49.     A decree of the ordinary tribunal may in turn be challenged before the Court of Appeal (within ten days) by virtue of Article 739 of the Code of Civil Procedure. 50.     According to its paragraph (3) no further appeal lay against the decision of the Court of Appeal. However, according to Article 111 (7) of the Constitution as interpreted by consolidated case-law, as well as Article   360 (4) of the Code of Civil Procedure (as modified by legislative decree no. 40/06) if the appeal decree affects subjective rights, is of a decisive nature, and constitutes a determination of a potentially irreversible matter (thus having the value of a judgment), the appeal decision may be challenged before the Court of Cassation within sixty days, in the circumstances and form established by Article 360 of the Code of Civil Procedure. According to Article 742 of the Code of Civil Procedure a decree which does not fall under the above-mentioned definition remains revocable and modifiable, at any future date subject to a change in the factual circumstances or underlying law ( presupposti di diritto ). 51.     According to Articles 325 to 327 of the Code of Civil Procedure, an appeal to the Court of Cassation must be lodged within sixty days of the date on which the appeal decision is served on the party. In any event, in the absence of notification such an appeal may not be lodged later than six months from the date it was lodged in the registry ( pubblicazione ). 52.     According to Article 324 of the Code of Civil Procedure, a decision becomes final, inter alia , when it is no longer subject to an appeal, to the Court of Appeal or Cassation, unless otherwise provided for by law. B.     Comparative and European law and practice 1.     Comparative-law material 53.     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 eleven countries (Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom) recognise same-sex marriage [2] . 54.     Eighteen member States (Andorra, Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples. In certain cases such union may confer the full set of rights and duties applicable to the institute of marriage, and thus, is equal to marriage in everything but name, as for example in Malta. In addition, on 9 October 2014 Estonia also legally recognised same-sex unions by enacting the Registered Partnership Act, which will enter into force on 1 January 2016. Portugal does not have an official form of civil union. Nevertheless, the law recognises de facto civil unions [3] , which have automatic effect and do not require the couple to take any formal steps for recognition. Denmark, Norway, Sweden and Iceland used to provide for registered partnership in the case of same-sex unions, but was abolished in favour of same-sex marriage. 55.     It follows that to date twenty-four 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. 2.     Relevant Council of Europe materials 56.     In its Recommendation 924 (1981) on discrimination against homosexuals, the Parliamentary Assembly of the Council of Europe (PACE) criticised the various forms of discrimination against homosexuals in certain member States of the Council of Europe. 57.     In Recommendation 1474 (2000) on the situation of lesbians and gays in Council of Europe member States, the PACE recommended that the Committee of Ministers call upon member States, among other things, “to adopt legislation making provision for registered partnerships”. Furthermore, in Recommendation 1470 (2000) on the more specific subject of the situation of gays and lesbians and their partners in respect of asylum and immigration in the member States of the Council of Europe, it recommended to the Committee of Ministers that it urge member States, inter alia , “to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnerships and families are treated on the same basis as heterosexual partnerships and families ...”. 58.     PACE Resolution 1547 (2007) of 18 April 2007 entitled “State of human rights and democracy in Europe” called upon all member States of the CoE, and in particular their respective parliamentary bodies, to address all the issues raised in the reports and opinions underlying this resolution and in particular, to, inter alia , combat effectively all forms of discrimination based on gender or sexual orientation, introduce anti ‑ discrimination legislation, partnership rights and awareness-raising programmes where these are not already in place;” (point 34.14.). 59.     Resolution 1728 (2010) of the Parliamentary Assembly of the Council of Europe, adopted on 29 April 2010 and entitled “Discrimination on the basis of sexual orientation and gender identity”, calls on member States to “ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, as already recommended by the Assembly in 2000”, by providing, inter alia , for: “16.9.1. the same pecuniary rights and obligations as those pertaining to different ‑ sex couples; 16.9.2. ‘next of kin’ status; 16.9.3. measures to ensure that, where one partner in a same-sex relationship is foreign, this partner is accorded the same residence rights as would apply if she or he were in a heterosexual relationship; 16.9.4. recognition of provisions with similar effects adopted by other member states;” 60.     In Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers recommended that member States: “1. Examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity; 2. Ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them ...” 61.     The Recommendation also observed as follows: “23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same ‑ sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights. 24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation. 25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different-sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.” 3.     European Union law 62.     Articles 7, 9 and 21 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and entered into force on 1   December 2009, read as follows: Article 7 “Everyone has the right to respect for his or her private and family life, home and communications.” Article 9 “The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” Article 21 “1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.” 63.     The Commentary of the Charter of Fundamental Rights of the European Union, prepared in 2006 by the EU Network of Independent Experts on Fundamental Rights, states as follows with regard to Article 9 of the Charter: “Modern trends and developments in the domestic laws in a number of countries toward greater openness and acceptance of same-sex couples notwithstanding, a few states still have public policies and/or regulations that explicitly forbid the notion that same-sex couples have the right to marry. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. The domestic laws of the majority of states presuppose, in other words, that the intending spouses are of different sexes. Nevertheless, in a few countries, e.g., in the Netherlands and in Belgium, marriage between people of the same sex is legally recognized. Others, like the Nordic countries, have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e. its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. At the same time it is important to point out that the name ‘registered partnership’ has intentionally been chosen not to confuse it with marriage and it has been established as an alternative method of recognizing personal relationships. This new institution is, consequently, as a rule only accessible to couples who cannot marry, and the same ‑ sex partnership does not have the same status and the same benefits as marriage   ... In order to take into account the diversity of domestic regulations on marriage, Article 9 of the Charter refers to domestic legislation. As it appears from its formulation, the provision is broader in its scope than the corresponding articles in other international instruments. Since there is no explicit reference to ‘men and women’ as the case is in other human rights instruments, it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages. International courts and committees have so far hesitated to extend the application of the right to marry to same-sex couples ...” 64.     A number of other Directives may also be of interest in the present case: they can be found in Vallianatos and Others v. Greece ([GC], nos.   29381/09 and 32684/09, §§ 33-34, ECHR 2013 (extracts)). 4.     The United States 65.     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. The petitioners had claimed that the respondent state officials violated the Fourt