Protection of persons of „different” sexual orientation constitutes today one of the prominent fields in the human rights jurisprudence on the supranational as well as on the national level in Europe. The initial stages of this process were focused on de-criminalization of sexual contacts and on the removal of classifications based on sexual orientation. Since the late 1990s, the problem of legal recognition of same-sex couples begun to play a central role. Today, the majority of the European countries (28) allow same-sex marriages or other forms of civil unions (registered partnerships). At the same time, however, Europe remains divided as several post-communist countries are opposing any form of regularization. This article offers a brief presentation of the most interesting judicial decisions on the matter and attempts to define some emerging European standards concerning the legal status of same-sex couples. The legal regularization of same-sex couples is mostly regarded as a legislative matter. Accordingly, the national courts remain deferential to the legislative choices and are not ready to develop the constitutional dimension of the problem. A similar approach is visible in the case-law of both European courts, whereas the Luxembourg Court (CJEU) seems nowadays to be more open to the full recognition of samesex couples than the Strasbourg Court (ECtHR). Nevertheless, there is a visible trend to recognize a positive obligation of all European countries to provide some form of legal recognition to same-sex couples, which may, but not has to, take the form of a regular marriage.

Same-sex couples and human rights – the emergence of a European standard?

Protection of persons of „different” sexual orientation constitutes today one of the prominent fields in the human rights jurisprudence on the supranational as well as on the national level in Europe. The initial stages of this process were focused on de-criminalization of sexual contacts and on the removal of classifications based on sexual orientation. Since the late 1990s, the problem of legal recognition of same-sex couples begun to play a central role. Today, the majority of the European countries (28) allow same-sex marriages or other forms of civil unions (registered partnerships). At the same time, however, Europe remains divided as several post-communist countries are opposing any form of regularization. This article offers a brief presentation of the most interesting judicial decisions on the matter and attempts to define some emerging European standards concerning the legal status of same-sex couples. The legal regularization of same-sex couples is mostly regarded as a legislative matter. Accordingly, the national courts remain deferential to the legislative choices and are not ready to develop the constitutional dimension of the problem. A similar approach is visible in the case-law of both European courts, whereas the Luxembourg Court (CJEU) seems nowadays to be more open to the full recognition of samesex couples than the Strasbourg Court (ECtHR). Nevertheless, there is a visible trend to recognize a positive obligation of all European countries to provide some form of legal recognition to same-sex couples, which may, but not has to, take the form of a regular marriage.