The Legal Recognition of Same-Sex Unions in the EU: Can the Charter of Fundamental Rights of the European Union make the Difference?

The issue of same-sex unions in the EU has been differently addressed by Member States. From same-sex marriage to non-recognition, the situation in the EU poses a series of questions related to the principle of nondiscrimination and to the right of free movement for EU citizens. However, all Member States are bound by the same human rights obligations. Among the legal instruments adopted in the context of fundamental rights protection, the now binding force of the Charter of Fundamental Rights of the EU represents a novelty introduced by the Treaty of Lisbon. This research investigates two aspects of the issue related to same-sex unions’ recognition between the period 2008-2011. First, by analyzing the case law at different spheres of adjudication, the dissertation examines whether same-sex unions’ legal recognition constitutes an obligation Member States are today obliged to fulfill. Second, it explores judicial orientations in relation to the claims brought before them by same-sex couples, explaining the reasons behind an apparently deferential attitude toward the legislator. As discussed in this thesis, there exists a duty to recognize, thus ‘indifference’ of Member States constitutes a violation of fundamental rights. Accordingly this research clarifies how the ‘duty to’ approach, if compared to ‘a right to’ approach, might better explain the answer given by the judiciary to the claims posed by LGBTI people in the context of same-sex unions legal recognition. In particular, this thesis contends that while it is possible to frame the argument of same-sex unions in terms of states’ obligations, it would not be desirable to establish a single rule concerning the legal recognition of same-sex unions.