Rainbow families’ rights in the EU – how the CJEU is juggling fundamental rights, free movement and national identity clause

The goal of the proposed paper is to analyse the multilevel judicial system within the EU in the context of the preliminary procedures relating to the issues of same-sex family rights. During the past 5 years, the CJEU has dealt with major cases touching upon the intersection of fundamental rights (respect for private and family life), EU citizenship law on free movement and the respect of national/constitutional identity which shall be guaranteed under art. 4.2 TUE. The common feature of cases in Coman (C-673/16), V.M.A (C-490/20) and K. S (C-2/21) is the attempt of EU citizens (respectively Romanian, Bulgarian and Polish) to challenge administrative decisions of their states’ authorities refusing to recognise the civil law status of same-sex family members. EU citizens who were trying to challenge those decisions relied on the EU law to protect their rights. The analysis presented in the proposed paper will focus on the assumed integrating power of the CJEU’s judgements, which are impacting the judicial practice of the member states. The fact that the EU citizens litigating at the national level are seeking protection based on the EU law against the national administrative practice and legislation, allows such cases to fall under the jurisdiction of the CJEU. The authority of the CJEU, its quasi-normative powers, stretch outside of the mere judicial application of law to find the balance between national identity, public policy and fundamental rights. CJEU’s judgments have strengthened the Commission’s legislative proposals aiming at the mutual recognition of parenthood between Member State. The paper will develop the qualitative legal analysis of both caselaw and policy measures shaping the approach to recognise same sex couples rights in the EU.