Strasburgo condanna l’Italia per la mancante legislazione sulle unioni civili: nuovi scenari nel delicato rapporto tra Corte Europea e istituzioni nazionali?

This comment deals with the recent ECtHR judgement in the case Oriali and Others v. Italy concerning three homosexual couples who complained the violation of Articles 8,12 and 14 of the ECHR. This judgement is noteworthy for the reasoning used by the Court to reach its conclusions as well as for the impact on the increasing dialogue between national and supranational Courts. After an overview on the status of homosexuals unions at European level, the paper will focus on the jurisprudence of the Italian Courts with particular attention to the decisions of the Supreme Court and the Constitutional Court. Then, it will analyse the content of the Oriali judgment, by emphasising the novelties concerning the interpretation of the doctrine of the margin of appreciation in the light of positive obligations of States. Indeed, the Court has recognised that Italian Government has overstepped its margin of appreciation by failing to provide for the core rights to same-sex couples. Moreover, the Strasbourg Court has strengthened the content of the ECHR passing through the Italian Constitution and national jurisprudence. This choice may represent a step forward in the construction of a dialogue between ECtHR and national legal orders.