Chiara De Capitani, Linguist agent at the European Commission and honorary fellow European Union law at the University of Naples “L’Orientale”. The information and views set out in this article are those of the author and do not necessarily reflect the official opinion of the European Commission.

Introduction

Advocate General Juliane Kokott, in her opinion, highlights the unfair burden placed on children of same-sex couples due to differing societal values among EU member states. These children risk losing legal recognition of their relationship with one or both parents when traveling within the EU. A recent study by the European Parliament revealed that at least 11 member states lack legal frameworks to recognize same-sex couples as joint parents.

The recent Grand Chamber ruling, C‑490/20 V.М.А. v Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria), addresses the recurring issue of EU member states refusing to acknowledge birth certificates issued by other member states that list two parents of the same sex. This Court of Justice of the European Union (CJEU) ruling expands upon the 2019 C‑673/16 Coman and others ruling. It allows further examination of the conflict between safeguarding family life and the best interests of the child across borders, against a member state’s right to uphold its national identity.

Facts of the case

A same-sex couple, a Bulgarian national (V.M.A, the applicant) and a British national (K.D.K), established residency in Spain in 2015. They married in 2018 and welcomed a daughter (S.D.K.A) in 2019. Spanish authorities issued a birth certificate recognizing both women as mothers without specifying the biological mother.

V.M.A. requested a Bulgarian birth certificate for her daughter, a requirement for obtaining Bulgarian citizenship documents. However, Bulgarian law solely recognizes heterosexual marriage and parentage consisting of a father and a mother. Consequently, Bulgarian authorities rejected the request citing the lack of information regarding the biological mother and the conflict between recognizing same-sex parents on the birth certificate with Bulgarian public policy. The applicant challenged the decision in the Administrative Court of the City of Sofia (the referring court).

Analysis

The Court’s response to the recast ‘judgment of Solomon’

The case became further complicated when, during the hearing, the Bulgarian government disputed the referring court’s assertion that the child was a Bulgarian national. The referring court asserted the child’s Bulgarian nationality based on Article 25(1) of the Bulgarian Constitution, stating that having one Bulgarian parent automatically confers citizenship. Conversely, the Bulgarian government argued that recognizing the Bulgarian mother as such would require either disclosing she was the birth mother or legally becoming the “legal mother” through Article 64 of the Family Code.

These proposed scenarios by the government created a difficult dilemma for the mothers, forcing them to choose between their daughter’s Bulgarian citizenship and associated family rights, or upholding the British mother’s parental rights in Bulgaria.

However, the Court determined that threatening to separate the family unit was not an appropriate path to a resolution.

Firstly, the Court asserted the referring court’s sole jurisdiction in this matter, thereby recognizing S.D.K.A.’s Bulgarian nationality by birth according to the Bulgarian constitution.

Secondly, the Court clarified that as an EU citizen, the daughter can exercise her rights, including Article 21(1) of the Treaty on the Functioning of the European Union (TFEU), even against her birth country, despite being born and residing elsewhere.

Thirdly, the Court emphasized that Article 4(3) of Directive 2004/38/EC (the ‘Freedom of Movement’ Directive) obligates member states to issue identity documents to their nationals. This obligation, the Court clarified, applies regardless of a new Bulgarian birth certificate being issued.

Fourthly, the Court determined that such an identity document must allow the daughter to exercise her freedom of movement with both mothers within EU member states.

Finally, since Article 21(1) TFEU encompasses the right to a normal family life, and given that Spanish authorities legally established the parent-child relationship between S.D.K.A. and her mothers, the Court ruled that all member states must recognize V.M.A and K.D.K as legal parents with the right to accompany their child while exercising her freedom of movement. Whether one of the mothers gave birth to the child or the nature of their parentage is irrelevant. One member state’s recognition of their parental status is sufficient for all other member states to reciprocate for freedom of movement purposes. In practical terms, same-sex parents are entitled to a document acknowledging their right to travel with their child. This document, potentially a birth certificate, can be issued by the host member state.

Balancing national identity, public policy, and fundamental rights, including the right to family life

The Court then examined whether Article 4(2) of the Treaty on European Union (‘TEU’), which protects member states’ national identity, justified the Bulgarian authorities’ refusal to issue the necessary documents.

Drawing from the Coman case, the Court reiterated that public policy, when used to justify exceptions to fundamental freedoms, must be interpreted strictly. Recognizing the child’s relationship with both parents in the context of her Article 21 TFEU rights does not undermine Bulgaria’s national identity or threaten its public policy. The country remains free to determine its stance on same-sex marriage and parentage within its national laws.

However, the Court emphasized that any national measure obstructing the freedom of movement of persons must align with the fundamental rights guaranteed by the Charter. The Court deemed Bulgaria’s proposed solutions contrary to the fundamental rights of both mothers and their daughter. For example, the right to respect for private and family life, guaranteed by Articles 7 of the Charter of Fundamental Rights of the European Union (the Charter) and 8 of the European Convention on Human Rights (ECHR), safeguards the parent-child relationship and recognizes same-sex relationships, according to the case-law of the European Court of Human Rights (ECtHR) and the CJEU.

Furthermore, Article 24 of the Charter, which safeguards the best interests of the child, translates into obligations for member states. Drawing from the UN Convention on the Right of the Child, the Court highlighted the obligation to refrain from discrimination based on the sexual orientation of a child’s parents when registering their name and nationality.

Significantly, the Court referenced its previous ruling in M.A.v État belge concerning the need to consider the Convention on the Rights of the Child when interpreting Article 24 of the Charter. This ruling emphasized prioritizing family unity in return decisions involving irregular third-country nationals, even when the subject of the return decision is not a minor but their parent. In M.A.v État belge, a father considered a threat to public order and LM v Centre public d’action sociale de Seraing, which involved a father requiring social assistance, the Court prioritized the children’s right to family life under Articles 5(a) and 14(1)(a) of Directive 2008/115/EC (the ‘Returns’ Directive) over the state’s right to return their fathers.

The Court concluded that these rights would be violated even if S.D.K.A. wasn’t a Bulgarian national. In that scenario, both she and K.D.K would be considered “spouse” and “direct descendant” under Article 2 of Directive 2004/38/EC due to V.M.A.’s EU citizenship, affording them protection under Article 21(1) TFEU.

The Court’s recognition of “direct descendant” encompassing children of same-sex couples is likely to extend to family reunification rights for third-country nationals under various EU instruments. Several directives relating to specific categories of third-country workers (researchers, highly-skilled workers, intra-corporate transferees) refer to the family definition outlined in Article 4(1) of Directive 2003/86/EC (the ‘Family Reunification’ Directive), potentially allowing broader family reunification rights. As Directive 2003/86/EC includes “spouse” and “minor children” of the applicant in its family member definition, it follows that same-sex migrant couples with or without children should benefit similarly.

Based on various reports, around twelve member states currently facilitate family reunification for same-sex couples. Several extend this right to highly qualified workers and those transferring within corporations.

Implementing the rights recognized in this case

The practical implications of this ruling for the family’s daily life remain unclear.

First, there is no comprehensive list of “rights under Article 21 TFEU and secondary legislation” applicable to S.D.K.A., nor a precise definition of “the right to lead a normal family life” under Article 21(1) TFEU. The AG clarifies that the “direct descendant” definition under Directive 2004/38/EC should apply to the “family members” of a migrant worker under Regulation 492/2011/EU (the ‘freedom of movement for workers’ Regulation), potentially granting S.D.K.A. access to social and tax benefits associated with V.M.A. Professor Steve Peers suggests that this logic could extend to access general education, apprenticeships, and vocational training in that member state.

Second, neither the Court nor the AG elaborated on K.D.K’s parental rights as a non-EU citizen spouse of an EU citizen. The AG highlights that denying K.D.K parental recognition would exclude her from parental responsibilities requiring proof of parenthood, such as medical decisions or administrative procedures for the child. Indeed, the EU’s role in these areas, and how fundamental rights apply, could vary significantly.

(For example, the EP study highlights that if the legally recognized parent dies, the non-recognized parent’s continued relationship with the child rests with the deceased parent’s family or the state. Additionally, the child lacks legal ties to the non-recognized parent’s family. Therefore, the lack of legal parent-child recognition creates uncertainty and insecurity for both the parents and the child by essentially denying their relationship.)

Her rights as an EU citizen’s “spouse” are also limited. As the EP study discovered regarding the implementation of the Coman case, the CJEU does not currently compel the member state of origin to fully recognize same-sex married couples. This lack of recognition extends to areas such as family, tax, social security, pensions, inheritance, citizenship, nationality, and medical law, including hospital visitation and consultation rights.

Finally, ILGA’s Head of Litigation, Arpi Avetisyan, emphasized the crucial role of implementation, a stage that is often difficult and time-consuming. The Bulgarian referring court must apply the CJEU judgment, and the family’s legal proceedings will continue in Bulgaria, potentially leading to further litigation, as seen in the Coman case. Avetisyan underscores that if Bulgaria or other countries that refuse to recognize same-sex unions fail to implement the CJEU judgment, the European Commission can pursue legal action, including infringement procedures. The Court explicitly stated that member states cannot use the protection of national identity as a justification for denying the child and her family their freedom of movement rights.

Conclusions

This significant ruling addresses critical gaps in LGBTIQ* rights, freedom of movement, and the protection of “family life.” It is expected to guide the European Commission’s upcoming legislative initiative, aiming for mutual recognition of parenthood between member states, as announced in its LGBTIQ Equality Strategy 2020-2025.

According to the EP study, this Commission proposal could potentially surpass the present ruling. Using Articles 18, 21(2), 46, 50(1), and 59(1) TFEU as legal bases, it could mandate that all member states recognize adults listed on a birth certificate issued by another member state as legal parents, regardless of gender or marital status.

The EP study posits that this would guarantee recognition of the familial ties of rainbow families during relocation, as legally established and documented in a birth certificate issued by another member state. This recognition would apply across all areas of national law, including family reunification under Directive 2004/38.

It is crucial to acknowledge that the Court has yet to rule on cross-border mobility issues related to gender identity, particularly concerning the rights of parents who are transgender or non-binary. A 2020 report by Transgender Europe highlighted that these couples face additional hurdles regarding freedom of movement and parental recognition, apart from the challenges discussed earlier. For instance, the absence or complexity of legal gender recognition procedures can hinder marriage recognition, birth certificate issuance, and the establishment of legal parent-child relationships.

Finally, several noteworthy cases concerning the cross-border recognition of LGBTIQ* couples and families are currently before the CJEU and the ECtHR.

Regarding the legal recognition of same-sex marriage, three appeals are underway at the ECtHR. Two challenge Poland’s refusal to recognize same-sex marriages performed abroad, thereby denying these couples rights afforded to married couples in Poland. The third appeal, by the Coman-Hamilton couple from the Coman case, contends that Romania’s continued refusal to recognize their marriage and its legal implications violates their right to marry (Article 12 of the ECHR) and constitutes discrimination based on sexual orientation (Article 14), read in conjunction with Articles 6(1), 8, 12, and 13 of the ECHR.

Additionally, the ECtHR will hear a case challenging Poland’s non-recognition of a civil union and birth certificate of a child born in England to a same-sex couple.

Photo credit: Bjoertvedt, via wikicommons