HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

whether a surviving same-sex partner in a registered partnership should receive the same pension benefits as a surviving spouse in a heterosexual marriage. The CJEU determined that when national legislation equates same-sex registered partnerships with marriage, the same benefits must be extended to both. However, the Court refrained from explicitly addressing whether this constituted direct discrimination based on sexual orientation, leaving that determination to the national court. In contrast, in the Hay case (2013) 51 , the CJEU took a more assertive stance by directly addressing the comparability of different partnership arrangements and ultimately found that the differential treatment in question amounted to direct discrimination. In the 2018 Coman case 52 , concerning the right to marry a same-sex partner, the CJEU declared that, at least for married partners, no discrimination was justified even if the Member State concerned does not allow same-sex marriage. 53 The CJEU ruled that the term “spouse” used in the Citizenship Directive includes same-sex spouses, thereby obliging Member States to recognize same-sex marriages for the purposes of granting residency rights, even if the Member State does not legally recognize same-sex marriage. While this is indisputably a landmark judgment, its core lies in free movement and citizenship rather than equality. The reason behind this may be due to the fact that free movement of citizens is a fundamental freedom within the EU; therefore, it is an area where the EU has control. Although the EU lacks the competence to regulate same-sex relationships or mandate their recognition by Member States, the issue of recognizing same-sex marriages or civil unions can arise within the context of the free movement rights of non-EU citizens who are partners or spouses of EU citizens. 54 In addition to the Maruko (2008), Hay (2013), and Coman (2018) cases, more recent rulings have further clarified and expanded LGBTQ+ rights in the EU. For instance, in the J. K. case (2021) 55 , the CJEU dealt with non-renewal of employment 51 Court of Justice of the European Union. C-267/12, Frédéric Hay v. Crédit Agricole Mutuel de Charente Maritime et des Deux-Sèvres [online]. Judgment of 12 December 2013 [cit. 2024-02-14]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62012CJ0267. 52 Court of Justice of the European Union. C-673/16, Relu Adrian Coman and Others v. Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne [online]. Judgment of 5 June 2018 [cit. 2024 02-14] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62016CJ0673. 53 ZIEGLER, Andreas R. The European Union as a Protector and Promoter of Equality: Discrimination on Grounds of Sexual Orientation and Gender Identity. In T. Giegerich (Ed.), The European Union as Protector and Promoter of Equality (pp. 283–296). In: Springer [online]. 2020, p. 289 [cit. 2024-07-25]. Available at: https://link.springer.com/book/10.1007/978-3-030-43764-0. 54 PAPADOPOULOU, Lina. Sexual Orientation and Gender Identity Law in the European Union and its Court of Justice. In: Oxford Handbook of European Union Law [online]. 2024, p. 38 [cit. 2024-07-25]. Available at: https://www.researchgate.net/publication/377795110_Sexual_Orientation_and_Gender_ Identity_Law_in_the_European_Union_and_Its_Court_of_Justice. 55 Court of Justice of the European Union. C-330/20, J. K. v. Minister voor Rechtsbescherming [online]. Judgment of 15 July 2021 [cit. 2024-08-14]. Available at: https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX:62020CJ0330.

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