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Yesterday, with 387 votes in favor, 161 against, and 123 abstaining, the EU Parliament adopted a resolution urging member states to "lift all obstacles facing LGBTIQ people when exercising their basic rights". Crucially, the resolution states that same-sex marriages or registered partnerships formed in one member state should be recognized across the entire Union.  

As of now, six EU members - Poland, Lithuania, Latvia, Slovakia, Bulgaria, and Romania - do not foresee the legal recognition of same-sex couples. Additionally, a total of eleven EU countries - all the above plus Greece, Cyprus, Croatia, the Czech Republic, and Hungary - do not allow for a child to be raised by same-sex parents.

The EU has no tools at hand to change the law regarding family matters, but the European Parliament is now pushing to enforce common standards at least in cross-border situations, such as traveling or moving between EU countries.

- If you are a parent in one country, you are a parent in every country- MEPs stated in their resolution, recalling Ursula von der Leyen’s words from her last year’s "State of the Union" speech.

The Parliament called on the Commission to draft legislation ensuring that "the adults mentioned on a birth certificate issued in one Member State, are recognized as the legal parents of the child in all Member States, regardless of their legal sex or marital status".

Waiting for the CJEU to set a legal precedent

Brussels plans to propose a related project in 2022. To be adopted, it would need to be approved by both the European Parliament and members of the EU Council.

But the Commission is currently waiting for the CJEU to issue a ruling on the Spanish-born daughter of a Bulgarian woman and a British woman from Gibraltar (they married in Spain), which would specify the extent of EU’s legal powers over same-sex couples and their children. 

The CJEU's decision, which responds to a request for a binding interpretation of EU law issued by a court in Sofia, should be handed down in the next few weeks. However, the already announced opinion of the Advocate General of the CJEU (judges usually follow the recommendations of Advocates General) shows the considerable legal limitations of EU institutions in these matters.

Advocate General Juliane Kokott stated that Bulgaria – having recognized a child as a Bulgarian citizen - should issue him/her with an identity card or a travel document indicating, as specified in the Spanish birth certificate, a Bulgarian and a British woman as parents. Among other things, this would entail freedom of movement within the EU, and allow the child to travel with either of the two mothers. However, in the opinion of the CJEU's Advocate General, Bulgaria may still cite its national law and refuse to recognize the origin of the daughter as shown on the Spanish birth certificate by, for instance, refusing to include both mothers into the Bulgarian marriage registry.

Civil rights vs the constitutional protection of "morals"

In its resolution, drafted by the Petitions Committee on the basis of complaints filed by, among others, Polish citizens, the EU Parliament recalls the 2018 CJEU judgment, which obliged Romania to grant the right of residence to the American husband of a Romanian man (married in Belgium), citing the EU freedom of movement principle. Now, MEPs have called on the Commission to launch an infringement proceeding against Romania, as Bucharest has so far failed to translate the CJEU ruling into national law.

- EU Member States cannot invoke any constitutional ban on same-sex marriage or constitutional protection of ‘morals’ or ‘public policy’ in order to obstruct the fundamental right to free movement of persons within the EU- states the adopted resolution.

Poland’s "LGBT-free zones" risk losing millions of EU funds

MEPs have once again called on the European Commission to tackle the problem of "discrimination faced by the LGBTIQ communities in Poland and Hungary", making full use of the tools at its disposal.

These include "budgetary tools", anti-harassment proceedings, and complaints to the EU Court of Justice in Luxembourg.

This week, Brussels is awaiting a reply from Warsaw and Budapest to the written request to remedy violations of EU law it identified in both countries in July when it initiated infringement proceedings concerning the rights of LGBTQ people. This could lead to a complaint before the CJEU.

Hungary is being reprimanded for a homophobic law veiled as an effort to protect minors. In Poland's case, it’s formally about a prior refusal to cooperate with the European Commission in clarifying the meaning of "LGBT-free zones".

"What exactly does the text of the resolution on freedom from LGBT ideology mean? Does LGBT ideology mean anything other than the right of LGBT people not to be discriminated against?" - these were some of the questions submitted by Brussels to the Polish government in July.

In early September, the European Commission - pending the outcome of an infringement investigation into the "LGBT-free zones" - suspended talks on nearly EUR 125 million for five Polish provinces where local councils passed resolutions on "LGBT ideology".

The money in question is part of React-EU- a pandemic recovery assistance program supporting, among other things, small and medium-sized companies, as well as the development of local healthcare systems. Poland is entitled to a total of €1.6 billion (a third has already been paid out). These funds are accounted for in the EU as part of a common national budget, so - if the issue of "zones" is not resolved by December - the Ministry of Funds and Regional Policy will be able to decide to reallocate the blocked amount to regions that have not declared themselves "LGBT-free", or to one of the centrally managed programs, such as "Digital Poland".

On the other hand, delays in negotiating new regional programs from the 2021-27 EU budget may turn out to be a much bigger problem for the "LGBT-free" provinces. One of the prerequisites for approving the programs, and receiving at least part of the funds, is the compliance with the EU Charter of Fundamental Rights, including non-discrimination.

For now, the hope in Brussels is that resolutions on "LGBT-free zones" will be invalidated by administrative courts or repealed or modified by the local councils themselves. This would lift the burden of pursuing further disciplinary financial measures against Poland off the European Commission.

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