CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 décembre 2017

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margin-left:31.75pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .sC36A6361 { font-family:Arial; color:#000000 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }       FIRST SECTION             CASE OF ORLANDI AND OTHERS v. ITALY   (Applications nos. 26431/12; 26742/12; 44057/12 and 60088/12)                   JUDGMENT     STRASBOURG   14 December 2017     FINAL   14/03/2018     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Orlandi and Others v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Kristina Pardalos, President,   Guido Raimondi,   Aleš Pejchal,   Krzysztof Wojtyczek,   Ksenija Turković,   Pauliine Koskelo,   Jovan Ilievski, judges, and Abel Campos, Section Registrar, Having deliberated in private on 12 September and 14 November 2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in four applications (nos.   26431/12, 26742/12, 44057/12 and 60088/12) 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 eleven Italian nationals and one Canadian national, namely Ms Francesca Orlandi and Ms Elisabetta Mortagna, Mr D.P. and Mr G.P., Mr Mario Isita and Mr Grant Bray, Mr   Gianfranco Goretti and Mr Tommaso Giartosio, Mr Fabrizio Rampinelli and Mr Alessandro Dal Molin, and Mr Antonio Garullo and Mr Mario Ottocento (“the applicants”), on 20 April 2012, 6 July 2012, and 11   September 2012 respectively (see Annex for details). 2.     The applicants in application no. 60088/12 were represented by Mr   Francesco Bilotta, Mr Antonio Rotelli, Ms Maria Federica Moscati and Mr Raffaele Torino; the remaining applicants were represented by Ms Maria Elisa D’Amico, Mr Massimo Clara, Mr Cesare Pitea, and Ms Chiara Ragni, all lawyers practising in Italy. The Italian Government (“the Government”) were represented by their Agent, Ms Ersiliagrazia Spatafora. 3.     The applicants alleged that the authorities’ refusal to register their marriages contracted abroad, and more generally the impossibility of obtaining legal recognition of their relationship, in so far as the Italian legal framework did not allow for marriage between persons of the same sex nor did it provide for any other type of union which could give them legal recognition, breached their rights under Articles 8, 12 and 14. 4.     On 3 December 2013 the Chamber to which the case was allocated decided that the complaints under Article 8 alone and Article 14 in conjunction with Articles 8 and 12 were to be communicated to the Government.   It further decided to join the cases. On the same day it decided to grant anonymity to two of the applicants in application no.   26431/12 under Rule 47 § 3 of the Rules of Court. 5.     Written observations were also received from FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, as well as from the Associazione Radicale Certi Diritti, the Helsinki Foundation for Human Rights, Alliance Defending Freedom, 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, Regional Charity Social Organization Parent’s Culture Centre “Svetlitsa”, and social organization “Peterburgskie mnogodetki”) and three Ukrainian NGOS (the Parental Committee of Ukraine, the Orthodox Parental Committee, and the social organisation Health Nation), had also been given leave to intervene by the Vice-President of the Chamber. However, no submissions have been received by the Court. 6.     On 15 December 2016 the President of the Section to which the case was allocated requested the applicants, under Rule 54 § 2 (a) of the Rules of Court, to submit factual information. 7.     By letters of 29 December 2016, 30 January 2017 and 7 April 2017, the applicants in applications nos. 26431/12, 26742/12, 44057/12 submitted their reply, which was sent to the Government for information. 8.     The letter of request sent to the applicants’ legal representative in application no.   60088/12, as well as a subsequent letter, returned to the Court undelivered. 9.     By a letter of 24 June 2017 the Government submitted a factual update which was transmitted to the applicants for information. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicants’ details can be found in the Annex. A.     The background to the case 1.     Ms Francesca Orlandi and Ms Elisabetta Mortagna 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. 2.     Mr D.P. and Mr G.P. 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. 3.     Mr Mario Isita and Mr Grant Bray 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. 4.     Mr Gianfranco Goretti and Mr Tommaso Giartosio 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. 5.     Mr Fabrizio Rampinelli and Mr Alessandro Dal Molin 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. 6.     Mr Antonio Garullo and Mr Mario Ottocento 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. II.     DOMESTIC LAW AND PRACTICE A.     Private international law 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...” B.     The Civil Code 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.” C.     Decree no. 396/2000 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). D.     Domestic jurisprudence 1.     Marriage (and civil unions) 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. 2.     Other relevant case-law Judgment of the   Tribunal of Reggio Emilia of 13 February 2012 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. E.     The recent progress of marriage registrations 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