HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

providing broader protections for LGBTQ+ individuals. 34 Additionally, the CJEU’s approach distinguishes between direct and indirect discrimination, with only the latter being justifiable under certain conditions. This distinction is central to many cases involving LGBTQ+ rights and ensures a robust protection mechanism even within the directive’s limited scope. Other legal fields, e.g., family law, are in the competence of the Member States 35 , except cross-border cases, hence the immense differences between the states that enable same-sex marriage and the states that do not recognize same-sex relationships in any way. 36 It is necessary to mention that there have been discussions and proposals related to the harmonization of family law within the European Union, although they have generally been limited in scope and met with significant challenges due to the sensitive nature of family law, which is deeply rooted in national traditions and cultural values. For example, there were discussions on creating a common EU framework for recognizing marriages and partnerships, particularly those conducted in other Member States, e.g., the European Commission Proposal 2018/224 . 37 This proposal aimed to improve the legal recognition and protection of same-sex marriages and partnerships across the EU by ensuring that civil status documents issued in one Member State would be recognized in another. In practice, this could help LGBTQ+ families avoid lengthy processes of proving marriage, adoption, and other civil documents. Unfortunately, this initiative did not lead to binding legislation. Another issue rising from the lack of harmonization in family law legislation is the difficulty to move from one EU state to the other as a rainbow family, especially when it comes to public documents proving one’s marriage, adoption, etc. from other states. 38 Correlating to this issue, it is worth mentioning the Citizens’ Rights Directive 39 , 34 For more info., see: European Commission. Report on the Implementation of the Employment Equality Directive [online]. 2020, pp. 32–34 [cit. 2024-02-14]. Available at: https://www.europarl.europa.eu/ RegData/etudes/STUD/2016/536345/EPRS_STU(2016)536345_EN.pdf. 35 The division of competences between the European Union and its Member States is outlined in the TFEU generally in Article 5 TFEU, but e.g., for family law, the relevant provision is Article 81 TFEU. 36 SANCHEZ-COLOMER, Lucia Zurro. IS THE EU DOING ENOUGH TO PROTECT LGBTI FUNDAMENTAL RIGHTS ? Eyes on Europe [online]. 2020 [cit. 2024-02-15]. Available at: https:// www.eyes-on-europe.eu/is-the-eu-doing-enough-to-protect-lgbti-fundamental-rights/. 37 European Commission. Proposal for a Regulation of the European Parliament and of the Council establishing a Programme for the Environment and Climate Action (LIFE) and repealing Regulation (EU) No. 1293/2013. Official Journal of the European Union [online]. 2018, COM/2018/224 final [cit. 2024-02 24]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52018PC0224. 38 ARMBRECHT, Donald. 10 Ways To Improve LGBT Rights In Europe. Vocal Europe [online]. 2018 [cit. 2024-02-18]. Available at: https://www.vocaleurope.eu/10-ways-to-improve-lgbt-rights-in-europe-2/. 39 European Union. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/ EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC, 93/96/EEC . Official Journal of the European Union [online]. 30 April 2004, L 158 [cit. 2024-08-9]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004L0038.

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