Italian judgment concerning the right to free movement and same sex marriages

21/02/2012
Submitted by Markella Papadouli, ECRE (European Council on Refugees and Exiles)

The judgment from an Italian judgment of the Fist Instance Court of Reggio Emilia is very interesting as this is the first time, as far as we know, that an Italian judge recognizes the right to family reunification to a spouse of the same sex in application of directive 2004/38 CE . This decision should be read very carefully as it would not apply to partnerships.

Please see below a brief summary:
The applicant was married in Spain with an EU citizen and applied for a permit of stay in Italy as family member of an EU citizen exercising his right to free movement. (The spouse was Italian but Italian Law provides the application of the legislation applicable to EU citizen family members also to Italian citizens' family members when this is more favorable).
Preliminary, the Court clearly states that the object of the decision isn't the recognition of the status of the person under Italian family law in but only the right to free circulation under EU law of family members. The fact that the applicant is married in Spain with a EU national constitutes the reason for his right to free circulation under EU law. The Court considers that the MS have no discretion and no authority to limit the rights deriving by the Directive concerning people married with European citizens.
The court expressly notes that the case is different from cases of same sex partner in a civil partnership.
The reasoning of the judge is: art. 2 par. 2 of the directive establishes that " ‘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 and in accordance with the conditions laid down in the relevant legislation of the host Member State; Therefore the "spouse" is a family member under the meaning of the directive, without any other condition.
The case of the partner who has contracted a civil partnership would be different as for that case, and only for that case, the directive limits the application to the cases in which if the legislation of the host Member State treats registered partnerships as equivalent to marriage.
The judge observes that each MS has sovereignty on family law and once there is a marriage in a MS the spouse is a family member under the meaning of the directive. Following this reasoning the Court recognized the right to a permit of stay as EU citizen spouse to the applicant.
Please note that Consider this is a first instance decision is and could be appealed.

Further, please find below the links to the original text of the judgment and that to an Italian relevant blog post:

-Judgment: http://www.stranieriinitalia.it/b.../febbraio/trib-re-coniuge-omosex.pdf (in Italian)
- Blog Post: http://briguglio.blogspot.com/201...-di-soggiorno-del-coniuge-dello.html (in Italian).

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