HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

2. Fundamental documents shaping LGBTQ+ Rights in the EU The system of norms and principles aimed at safeguarding human rights and freedoms within the EU comprises diverse documents possessing both mandatory and declarative power. 17 When closely examining the legal framework that grants a certain form of protection of LGBTQ+ rights, it is necessary to start with primary law composed of the Treaty on European Union ( hereinafter referred to as “TEU” ), the Treaty on the Functioning of the European Union ( hereinafter referred to as “TFEU” ) , and the Charter of Fundamental Rights of the European Union ( hereinafter referred to as “Charter” ). The principle of equality radiates throughout a wide range of different provisions, e.g., Article 10 of TFEU 18 and Articles 2 and 3 of TEU 19 . These treaty provisions are further strengthened by the Charter, which, under the Lisbon Treaty 20 , holds equivalent legal status to the Treaties. This makes it legally binding for EU institutions and Member States when implementing EU law, adhering to the principle of subsidiarity. 21 Notably, the Charter dedicates an entire title (Title III) to equality, enshrining both the principle of equality and the prohibition of discrimination. It is also the first international legal instrument to explicitly prohibit discrimination on the basis of sexual orientation, as stated in Article 21. The list of prohibited grounds for discrimination remains open-ended, allowing for other grounds such as gender identity to be included. The key provision that ensures the protection of equality and combats discrimination is Article 19 of TFEU, which empowers the EU to take an action when Article 21 of the Charter is violated. Moreover, a broader protection of the fundamental values, including equality and non-discrimination, which are primarily enshrined in Article 2 TEU, supports Article 7 TEU that establishes procedures for the threat of a breach of EU values by a Member State. 22 17 MURAVIOV, Viktor and SVIATUN, Olena. Protection of Human Rights in the European Union . The Convergence of Fundamental Rights Protection in Europe [online]. 2016, p. 5 [cit. 2024-02-20]. Available at: https://www.researchgate.net/publication/301243272_Protection_of_Human_Rights_in_the_European_ Union. 18 European Union. Treaty on the Functioning of the European Union. Official Journal of the European Union [online]. 2012, C 326, pp. 47–390 [cit. 2024-02-18]. Available at: https://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX:12012E/TXT. 19 European Union. Treaty on European Union. Official Journal of the European Union [online]. 2012, C 326, pp. 13–46 [cit. 2024-02-18]. Available at: https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX:12012M/TXT. 20 European Union. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. Official Journal of the European Union [online]. C 306, 2007 [cit. 2024 02-18]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2007:306:TOC 21 European Union. Charter of Fundamental Rights of the European Union. Official Journal of the European Union. [online]. 2012, C 326 [cit. 2024-02-18]. Available at: https://eur-lex.europa.eu/legal content/EN/TXT/?uri=CELEX:12012P/TXT. 22 For more information on this procedure, see, for example, here: SZCZERBA, Aleksandra and ROMITO, Angela Maria. Global Public Goods and Sustainable Development in the Practice of

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