La sentenza Sahyouni c. Mamisch della Corte di giustizia UE: un’occasione per tornare a riflettere sulla portata del principio di non discriminazione nell’ordinamento dell’Unione europea

A recent ruling by EU Court of Justice has clarified the inapplicability of Rome III regulation to proceedings concerning separation and divorce of exclusively religious nature. The ruling has not however dispelled the doubts concerning the possibility of recognizing Islamic repudiation-based divorces within EU legal order. Rome III regulation requires that the foreign law which should apply to a divorce pursuant to other provisions must be replaced by lex fori, in the event that the former provides unequal access to the institution, due to the different sex of spouses. What it is not clear is whether this discriminatory effect should be assessed in the abstract or in concrete terms. This paper, starting from the Sahyouni c. Mamisch case, analyzes the fundamental right to a non- discriminatory treatment in face of talaq, its scope, and the possibilities of guaranteeing its observance, even though in constant application of the principle of conferral that still limits EU activities in the field of fundamental rights. European Union, as known, must necessarily remain neutral in religious matters, in the name of an unavoidable neutrality, due to the reluctance of the member States to renounce to their sovereignty in an area so characterized in the sense of identity.