About Us

With the ruling in question, filed last November 4 ( text below ), the Council ruled on the issues of constitutionality raised by the Court of Venice with regard to law no. 76/2016 on civil unions and the Presidential Decree no. 396/2000 on civil status documents.

A discipline that, according to the referring court, would violate the rights of the so-called “intentional mother” (civilly united to the biological one) – precluding her from registering as a parent of the child born as a result of heterologous fertilization – but also those of the minor, resulting in an unreasonable discrimination on grounds of sexual orientation.

With a broad and articulated motivation, the Court excludes the vulnus of the constitutional principles, considering at the same time that it cannot take on the legislative inertia on this point.

It is therefore up to the Legislator – as interpreter of the collective will and after appropriate balancing of the interests at stake – to arrange an effective protection of parenthood also for same-sex couples.

Similarly, it will have to ensure the primary interest of the minor in these cases, currently protected only in jurisprudence, through recourse to the discipline of adoption in particular cases.

The case
A woman, civilly united to another, started, with the latter’s consent, a practice of medically assisted fertilization abroad from which a child was born in Italy.

The women then asked to be both registered as mothers in the child’s birth certificate, but were refused by the registrar, who noted only the name of the biological mother.

Hence the appeal to the judicial authority.

The question of constitutional legitimacy
The Court of Venice raised the question of the constitutional legitimacy of article 1, paragraph 20, of law no. 76/2016 (Regulation of civil unions between persons of the same sex and discipline of cohabitation) and of art. 29, paragraph 2, of Presidential Decree no. 396/2000 and subsequent amendments (Regulation for the revision and simplification of the civil status system, pursuant to article 2, paragraph 12, of law no. 127 of 15 May 1997), with reference to articles 2 , 3 first and second paragraph , 30 and 117 first paragraph of the Constitution.

The issue we face concerns the reimbursement of postal vouchers still regulated by Presidential Decree no. 156/1973 (Postal Code) and by Presidential Decree n. 256/1989 (Approval of the regulation for the implementation of the third book of the Postal and Telecommunications Code), legislation then abolished by Legislative Decree 23.07.1999 n. 284 and subsequent ministerial implementing decrees, but remained in force and applicable to all those postal vouchers issued on an earlier date.

Given their thirty-year duration, many of these vouchers have expired in recent years, reserving unwelcome surprises for their holders. There are many cases of holders who have been refused reimbursement by Poste Italiane due to the death of another co-holder of the same voucher.

It is the consolidated practice of Poste Italiane to request the receipt of all those entitled, and therefore of the heirs of the deceased joint holder, in order to allow the redemption of the voucher. This occurs despite the presence of the “equal repayment option” clause (abbreviated to “PFR”) affixed to the individual bonds, which essentially makes the joint obligation on the active side.

As it is easy to imagine, this has created many problems, since the hypothesis of the death of one of the co-holders is not remote at all, often thirty years or more from the signing of the voucher.

The applicable legislation and the question that arose
The applicable legislation is that referred to in Presidential Decree 156/73 and the subsequent implementing regulation, Presidential Decree 256/89. With reference to the latter, the following rules are relevant:

• art. 187, c. 1: ” The repayment of the balance of the credit of the passbook in the name of a deceased person or jointly with the clause of the equal right to two or more people, one of whom is deceased, is carried out with the receipt of all those entitled “;
  art. 203: ” The rules relating to the service of postal savings books, referred to in title V of this regulation, are extended to the service of postal savings bonds, as applicable and unless otherwise provided for by the rules of this title VI “;
  art. 208, c. 1: ” The bonds are redeemable on sight at the issuing office, for principal and interest, after comparing the securities with the corresponding registrations made at the time of issue “.
• Faced with this far from crystalline legislation, there have been several judgments of opposite merit ( ex plurimis , in favor of the saver, T. Ascoli Piceno, 1.3.2016, T. Lecco, 20.2.2015; in favor by Poste Italiane T. Ancona, 24.2.2011, T. Monza, 18.2.2013).

The question seemed to have been resolved by sentence no. 4504 of 25.10.2017 of the Court of Appeal of Milan, which, in a nutshell, had deemed art. 187 DPR 256/1989, on the basis of the fact that the regulation of postal books is also applicable to postal vouchers only as a subsidiary, unless otherwise provided for by Title VI which expressly regulates them. Now, from the fact that this title, precisely in the aforementioned art. 208, provides for the redemption on sight of the vouchers, without any distinction between the hypothesis of co-holders who are all still living or the death of one or more of them, the Milanese Court has inferred the inapplicability of art. 187, whose subsidiary nature would not allow derogating from a provision expressly dictated on the subject of postal vouchers by Title VI of Presidential Decree 256/89.