Skirting the Fault Line? AG Richard de la Tour’s Opinion in the Wojewoda Mazowiecki case: EU law requires registration of same sex marriages only when no alternatives exist

 

Helga Luku, PhD researcher, University of Antwerp

Photo credit: Jakub Halun, via Wikimedia commons

On the 3rd of April 2025, Advocate General (AG) Richard de la Tour delivered his Opinion in C-713/23, Wojewoda Mazowiecki, concerning the recognition and entry in a civil register of a foreign certificate of marriage between persons of the same sex. While aiming to comply with the division of competences between the EU and Member States, AG Richard de la Tour took a pragmatic approach by opining that the EU law does not oblige Member States to register foreign same-sex marriage certificates when they provide alternative means to ensure recognition and protection of same-sex couples. However, where no alternative form of recognition exists, Member States are obliged to register foreign same-sex marriage certificates in their civil registry.

Facts of the case

In 2018, Mr Jakub Cupriak-Trojan, a Polish and German national,  and Mr Mateusz Trojan, a Polish national, got married in Berlin. They currently reside in Poland. After their marriage, Mr Cupriak-Trojan decided to add to his birth name, in accordance with German law, the surname of his spouse. Upon the request of Mr Cupriak-Trojani, the Head of Civil Registry Office of Warsaw reflected this change in his birth name in Poland as well.

In 2019, the Head of the Civil Registry Office of Warsaw, where the birth certificates are held, refused to transcribe the German marriage certificate of Mr Cupriak-Trojan and Mr Trojan on the grounds that Polish law does not allow same-sex marriages and the transcription of such a certificate would be contrary to the fundamental principles of the Polish legal order. This decision was upheld by other Polish authorities and courts until the case reached the Supreme Administrative Court of Poland.

The latter subsequently referred a preliminary question to the Court of Justice (ECJ) asking whether EU law (Articles 20, 21 TFEU, Article 21(1) of the Charter of Fundamental Rights of the EU and Directive 2004/38) should be interpreted as precluding Member States from refusing to recognise a same-sex marriage and transcribe a foreign marriage certificate into the national civil registry when it prevents those persons from residing in that Member State as a married couple, on the ground that the law of the host Member State does not provide for same-sex marriage?

Opinion of Advocate General Richard de la Tour

The analysis of the AG Richard de la Tour started in the classical way by pointing out that under the current state of EU law, the status of persons is a matter falling within the competence of the Member States and EU law does not affect that competence.  However, when exercising that competence, Member States must comply with EU law, particularly with the free movement rights of Union citizens.

AG Richard de la Tour opined that the absence of any recognition in one Member State of the marital relationship established between two persons of the same sex registered in another Member State creates a restriction on the exercise of the right deriving from Article 21(1) TFEU. Thus, the applicants who are both Union citizens and whose situation falls within the scope of EU law must be able to reside and move freely within the territory of the Member States as well as when they return to their Member State of origin, while being recognised as married persons.

Referring to Article 7 of the Charter and its alignment with Article 8 ECHR, the AG invoked the case law of the European Court of Human Rights (ECtHR). The latter has interpreted Article 8 ECHR as requiring Member States to ensure legal recognition and protection of same-sex couples by putting in place a ‘specific legal framework’. While putting that conclusion in the EU law context, the AG Richard de la Tour reasoned that it is for the Member States, where they do not provide for, or even prohibit, the institution of marriage between persons of the same sex in their national law, to establish appropriate procedures for the recognition of ties established in another Member State.

At this juncture, the AG framed an important question: under what conditions, according to EU law, can a Member State be required to register a same-sex marriage in its civil registry, even if its national legal framework neither permits the conclusion of such marriages on its territory nor provides for the registration of same-sex marriages concluded in another Member State—regardless of whether one of the spouses holds the nationality of the Member State in question?

In the view of the AG Richard de la Tour, as long as Polish national law does not offer any alternative form of recognition for same-sex couples, it is consequently obliged to transcribe the foreign marriage certificate into its civil register. The obligation to register a foreign marriage certificate does not apply where the marriage’s effects are otherwise ensured, and it is for each Member State to define the appropriate means of guaranteeing the right to respect for the private and family life of same-sex couples.

In conclusion, AG Richard de la Tour held that Articles 20 and 21(1) TFEU, in light of Article 7 of the Charter, do not require a Member State to transcribe a same-sex marriage certificate lawfully issued in another Member State, provided that alternative forms of recognition are available. However, they preclude national laws or practices that deny any form of recognition of such marriages solely because same-sex marriage is not permitted under domestic law.

Comment

Once again, the Court of Justice has been called to address the contentious issue of same-sex marriage recognition within the European Union. In the present case, Wojewoda Mazowiecki (C-713/23), the ECJ is asked whether a Member State must record in its civil registry a same-sex marriage legally concluded abroad, even if national law does not recognise such unions.

At first glance, the facts echo those of Coman in 2018 (on the application of free movement law to same sex marriages, discussed here), but the present case is different, as both applicants- a same-sex couple- are Union citizens. As such, their right to move and reside freely within the EU is not contingent upon the recognition of their marriage for the purpose of family reunification under free movement provisions.

Notably, this element (i.e. both of them being Union citizens) influenced the Opinion of AG Richard de la Tour, which did not centre its analysis on free movement rights but rather anchored its reasoning in the fundamental right to private and family life, guaranteed by Article 7 of the Charter. When interpreting Article 7 of the Charter and Article 8 of the ECHR, AG Richard de la Tour drew upon the case law of the ECtHR -(Przybyszewska and Others v. Poland, Fedotova and Others v. Russia, Orlandi and Others v. Italy and Formela and Others v. Poland) - which has established that contracting States are required to provide a "specific legal framework" for the recognition and protection of same-sex unions. Nevertheless, the ECtHR does not impose a direct obligation on Member States to recognise same-sex marriages.

A few key points in the Opinion of AG Richard de la Tour are particularly significant for understanding the broader legal implications of the case.

Firstly, the right of same-sex spouses to lead a family life without encountering administrative obstacles relates specifically to the exercise of rights provided for spouses by national legislation (para. 43). Meanwhile, as regards rights deriving from EU law, a Union citizen does not have to prove that he or she has the status of married person in order to move and reside freely within the territory of the Member States (para.42). Thus, the applicants’ approach may be interpreted as an attempt to reinforce their reliance on free movement rights by invoking additional protection and benefits granted to spouses under national law. This understanding is further supported by their request during the hearing of the case to have their marriage certificate transcribed into the civil register, thereby enabling them to prove their status as spouses, specifically in Poland. Rightfully, one may ask whether the issue of recognition of such a same-sex marriage would have reached the ECJ if Polish law had provided an alternative form of recognition, such as registering them as a civil union, given that the latter would result in the downgrade of their relationship status and rights. AG Richard de la Tour appears to overlook this issue in his Opinion.

Secondly, the Opinion of AG Richard de la Tour in this case seems to reflect a fragmented approach towards the recognition and registration of civil status elements. He interpreted the ECJ’s case law as distinguishing between familial ties – such as marriage and parenthood – which must be recognised only for the purpose of exercising EU-derived rights, and identity-related matters – such as name or gender changes – which, following the Mirin judgment, must be recognised and entered into civil registers without such a limitation (para. 28, 29, 30). The ECJ has held that ‘like a name, gender defines a person’s identity and personal status’, and the refusal in one Member State to recognise changes to them obtained by a Union citizen in another Member State is liable to cause ‘serious inconvenience’ for that citizen at administrative, professional and private levels. When comparing the ECJ’s approach in the Mirin and Coman rulings, it can be implied that familial statuses, like marriage and parenthood, go beyond the personal sphere and may entail broader normative frameworks, including national conceptions of family law. Consequently, Member States have been afforded greater discretion in regulating and recognising these statuses within their legal systems. Nevertheless, this fragmentation appears both ambiguous and somewhat inconsistent. Although both identity-related matters (such as changes in name or gender) and familial statuses (like marriage and parenthood) remain under the competence of Member States, the non-recognition of either can create serious inconveniences for Union citizens, potentially violating their rights under Article 21 TFEU.

Lastly, AG Richard de la Tour advocated for a clear distinction between, on the one hand, the obligation of the Member States to offer some form of recognition to same-sex couples (derived from the ECtHR case law) and, on the other hand, the obligation to transcribe a foreign same-sex marriage certificate into the civil register. He supports the latter obligation only in situations where no alternative legal framework exists, as is the case in Poland (para. 55). In his view, disregarding this distinction and requiring automatic registration of such marriage certificates would lead to an interpretation of freedom of movement and residence of Union citizens as a right that can be exercised without limit in matters of personal status (para.56). At this point, I concur with his viewpoint, as EU law does not provide for such an expansive interpretation. According to him, it would imply a purely fundamental rights-based approach detached from any link to EU free movement provisions, and such a position would contravene Article 51(2) of the Charter. As noted by the AG Richard de la Tour, the ECJ has refrained from adopting such an expansive view even in cases when the best interests of the child were at stake (para. 58). It is obvious that AG Richard de la Tour aimed to strike a balance between fundamental rights of individuals and the division of competences between EU and Member States- a fault line that has repeatedly tested the ECJ and other EU bodies. However, his proposed solution raises questions, such as whether the transcription of foreign marriage certificates implies full recognition of same-sex marriage-which, in my view, it does- and, if so, whether this could lead to reverse discrimination.

It now falls to the ECJ to deliver its ruling and determine whether to adopt the Opinion of AG Richard de la Tour.

 

Rainbow families and the right to freedom of movement – the V.М.А.v Stolichna obshtina, rayon ‘Pancharevo’ case

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

‘A child is in no way responsible for the differences in the scales of values in society between EU Member States’, notes Advocate General Juliane Kokott in her opinion (AG’s opinion). Yet, unfortunately, children of rainbow families face the very real risk to have their legal ties to one or both parents disappear once they cross the border of their Member State of residence. A recent study by the European Parliament (the ‘EP Study’ by Tryfonidou, Wintemute) found that in at least 11 EU Member States same-sex couples with children may not be legally recognised as the joint parents of their children.

The present Grand Chamber ruling, C‑490/20 V.М.А. v Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria) tackles a recurring problem faced by rainbow families: the refusal from an EU Member State to recognise a birth certificate issued in another Member State that indicates two parents of the same sex as the legal parents of a child. This Court of Justice of the European Union (CJEU) ruling builds on the 2019’s C‑673/16 Coman and others ruling (discussed here) and allows the AG and the CJEU to explore and clarify several aspects of the tension between the cross-border protection of family life and the best interests of the child with a Member States’ protection of its national identity.

Facts of the case

A same-sex couple composed of a Bulgarian national (V.M.A, the applicant) and a British national (K.D.K) have been residing in Spain since 2015 and built their family life there: they married in 2018 and welcomed a baby daughter (S.D.K.A) in 2019. The Spanish authorities issued the child a birth certificate recognising both partners as her mothers and not disclosing who gave birth to her.

V.M.A requested the Bulgarian authorities issue her daughter a Bulgarian birth certificate, a pre-condition under Bulgarian law to issue identity documents certifying the latter’s Bulgarian citizenship. However, Bulgarian law only recognises heterosexual marriages and the parentage of children as composed of a father and a mother. Therefore, Bulgarian authorities rejected the application for the issuing of a Bulgarian birth certificate on two grounds: the absence of information concerning the child’s birth mother and the fact that the registration of two same-sex parents in a birth certificate is contrary to Bulgarian public policy. The applicant brought an action against the refusal decision before the Administrative Court of the City of Sofia (the referring court).

Analysis

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

This already complex case is off to a rocky start when, at the hearing, the Bulgarian Government refutes the referring court’s claim that the child is a Bulgarian national. The referring court considers that the child has Bulgarian nationality under Article 25(1) of the Constitution of Bulgaria stating that ‘a person is a Bulgarian national if at least one of the parents is a Bulgarian national’. On the other hand, the Bulgarian government considers that the Bulgarian mother, to be recognized as such, has either to disclose that she gave birth to the daughter or proceed to become the “legal mother” following Article 64 of the Family Code.

These hypothetical possibilities offered by the government create a twisted “judgment of Solomon”-type of situation for both mothers: they can either sacrifice their daughter’s claim to Bulgarian citizenship and the derived family law rights this implies with the Bulgarian mother or they can defend their daughter’s right to Bulgarian citizenship by claiming the Bulgarian mother is the sole mother, severing the British mother’s parent-child relationship to her daughter in Bulgaria.

The Court, however, did not believe that the threat of splitting the child in two should have been the way to reach a fair compromise, quite the contrary.

Firstly, the Court claims that the referring court alone has jurisdiction in this matter, so the CJEU’s ruling will consider that S.D.K.A. has Bulgarian nationality by birth due to the Bulgarian constitution.

Secondly, the Court clarifies, the daughter - in her capacity as a Union citizen - can rely on the rights pertaining to Union citizenship, including Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) also against her Member State of origin and even she was born in another Member State and has never travelled to her State of origin.

Thirdly, since every citizen of the Union has the right to move and reside freely within the territory of the Member States, Article 4(3) of Directive 2004/38/EC (the ‘Freedom of movement’ Directive) requires Member States to issue their nationals identity documents and, the Court clarifies ‘this document has to be issued regardless a of whether a new [Bulgarian] birth certificate is drawn up’.

Fourthly, such identity document must enable the daughter to move and reside freely within the territory of the Member States with each of her two mothers.

Lastly, since Article 21(1) TFEU includes the right to lead a normal family life with ones’ family members and the Spanish authorities have lawfully established the parent-child relationship between S.D.K.A and her two parents all Member States have to recognize V.M.A and K.D.K as having the right to accompany that child within the territory of Member States when exercising her freedom of movement. Whether one of the mothers gave birth to the daughter or whether her parents are biological or legal does not seem to be of interest to the Court: the fact that one Member States has recognised them as parents is sufficient to require all other Member States to mutually recognize this birth certificate for the purpose of freedom of movement. In practical terms also the same-sex parents of a child are entitled to a document which mentions them as being entitled to travel with their child: this document can be drawn up also by the host Member State and may be a birth certificate (like the present case).

The fragile balance between national identity, public policy and fundamental rights, including the right to respect for family life

The Court proceeds with analysing whether Article 4(2) of the Treaty on European Union (‘TEU’) protecting Member States’ national identity could serve as a justification for the Bulgarian authorities’ refusal to issue a birth certificate and an identity document to S.D.K.A.

Building on the Coman case, the Court recalls that the concept of public policy as a ‘justification for a derogation from a fundamental freedom must be interpreted strictly’. Recognizing the parent-child relationship between the child and each of her parents in the context of the child’s exercise of her rights under Article 21 TFEU does not undermine the national identity or pose a threat to the public policy of that Member State (which is thus still free to decide whether or not to allow same-sex marriage and parenthood under its national law).

The reverse of the medal is that ‘a national measure that is liable to obstruct the exercise of freedom of movement of persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter’ and, the Court finds, Bulgaria’s “judgment of Solomon”-style proposals would be contrary to several fundamental rights of each mother and their daughter. For instance, the right to respect for private and family life, guaranteed by Articles 7 Charter of Fundamental Rights of the European Union (the Charter) and 8 of the European Convention on Human Rights (ECHR) and following the case-law of the European Court of Human Rights (ECtHR) and the CJEU, cover both the mutual enjoyment by parent and child of each other’s company and the relationship of same-sex couples.

The right to have the best interests of the child taken into account, guaranteed by article 24 of the Charter translates also in obligations for Member States deriving from the UN Convention on the Right of the Child not to discriminate the latter (Article 2) including on the basis of the sexual orientation of the child’s parents when registering their name and nationality (Article 7).

Interestingly, with regards to the need to take due account to the provisions of the Convention on the rights of the Child when interpreting article 24 of the Charter, the Court refers to its previous M.A.v État belge ruling. With regards to the return of irregularly staying third country nationals, the Court has ruled twice in the past 18 months that family unity must be taken into account before adopting a return decision, even where the person to whom the return decision is addressed is not a minor but their father. The M.A.v État belge ruling concerned a father who was considered a threat to public order due to having committed  several offences whereas the LM v Centre public d’action sociale de Seraing ruling concerned a father who was unable to meet his or his adult seriously-ill daughter’s needs without receiving social assistance. In both cases the Court found that the need to protect the family life of these children under Articles 5 (a) and 14 (1) (a) of Directive 2008/115/EC (the ‘Returns’ Directive) overrode the State’s prerogative to return their fathers.

Lastly, these rights would risk being violated also whether S.D.K.A did not have Bulgarian nationality. In that case, both her and her mother K.D.K would fall under the definition of ‘spouse’ and ‘direct descendant’ within the meaning of article 2 of Directive 2004/38/EC due to the fact that V.M.A is a Union citizen and is therefore also protected by Article 21(1) TFEU.

The finding by the Court that the definition of ‘direct descendant’ covers the child of a same-sex couple will likely extend to the right to family reunification of third country nationals currently provided by several EU instruments. For instance, various directives concerning certain types of workers from third countries (researchers, highly skilled workers, workers in the field of intra-corporate transfers) refer to the definition of family pursuant to art. 4 par. 1 of Directive 2003/86/EC (the ‘Family Reunification’ Directive) and allow Member States to recognize more favourable provisions with respect to family reunification. As Directive 2003/86/EC includes in its list of family members the ‘spouse’ and ‘minor children’ of the applicant, by analogy, same-sex migrant couples with or without children should benefit from these provisions.

According to various reports (EMN) a dozen Member States currently allow same-sex couples to apply for family reunification and several Member States extend this right also to highly qualified workers (ICF) and to workers in the context of intra-corporate transfers.

Implementation of the rights recognized by the present case

The impact this ruling will have on the day-to-day life of this family is unclear at this stage.

Firstly, there is no exhaustive list of the ‘rights under Article 21 TFEU and secondary legislation relating thereto’ to which S.D.K.A has a right to nor a precise definition of the rights that the “right to lead a normal family life” under Article 21 (1) TFEU would entail. The AG clarifies that, since the definition of ‘direct descendant’ under Directive 2004/38/EC must also be adopted with regard to the concept of the ‘family members’ of a migrant worker for the purposes of Regulation 492/2011/EU (the ‘freedom of movement for workers’ Regulation) S.D.K.A may claim, for example the social and tax advantages associated with V.M.A. By the same reasoning, said Regulation could also cover her admission to that Member State’s general educational, apprenticeship and vocational training courses according to Professor Steve Peers.

Secondly, unfortunately, neither the Court nor the AG elaborate on which parental rights K.D.K is entitled to as a non-EU citizen but as the ‘spouse’ of one. The AG notes that preventing K.D.K  from being recognized as a parent would exclude her from “all the parental duties requiring proof of parental status […], medical decisions or any type of administrative procedure on behalf of the child”. Indeed, the fundamental rights granted by the European Union on many of these issues could vary greatly depending on whether they fall partially inside or outside of the EU’s competences.

(For instance, as the EP Parliament’s study points out, if the legal parent that dies, ‘the child becomes an orphan and it is then up to the family of the legally recognised parent or, in the absence of that, the State, to determine whether the non-recognised parent will even be allowed to maintain links with the child or, ideally, be recognised as the child’s parent. The child, also, does not have any (legal) ties with the family of origin of the parent who is not legally recognised as a parent. Hence, the failure to legally recognise the parent-child relationship creates uncertainty and, with it, insecurity both for the parents and the child as it, in effect, denies their relationship’.)

Her rights as a ‘spouse’ of an EU citizen are also limited. As the EP study found with regards to the implementation of the Coman case: ‘the CJEU does not yet require [the Member State of origin] to recognise a same-sex married couple […] for instance in relation to family, tax, social security, pensions, inheritance, citizenship/nationality, and medical law, e.g. hospital visitation and consultation’.

Finally, as noted by ILGA’s Head of Litigation Arpi Avetisyan: ‘implementation is the crucial part, which often is also the difficult and time-consuming one.  […] In practice the referring court in Bulgaria will have to apply the CJEU judgment and the family will continue the process in Bulgaria. It can also mean further litigation, as it happened in the Coman case […], however in short – if Bulgaria or other countries that don’t recognise same-sex unions refuse to implement the CJEU judgment, the European Commission can take legal action – namely infringement procedures. Just to reiterate, the Court specifically mentioned that MS cannot rely on protection of national identity (i.e. non-recognition of same-sex unions) to refuse the child and her family their rights to free movement’. 

Conclusions

This landmark ruling fills a series of gaps with regards to LGBTIQ* rights, freedom of movement and the protection of ‘family life’ and will likely serve as inspiration for the Commission’s upcoming proposal for a horizontal legislative initiative to support the mutual recognition of parenthood between Member States announced in its LGBTIQ Equality Strategy 2020-2025 the 12 November 2020.

According to the EP Study, said Commission proposal could go even beyond the present ruling and ‘on the legal bases of Articles 18, 21(2), 46, 50(1), and 59(1) TFEU, require[e] all Member States to recognise, for all purposes of national law […] the adults mentioned in a birth certificate issued in another Member State as the legal parents of the child mentioned in that birth certificate, regardless of the sexes or the marital status of the adults’.

This, the EP Study believes, ‘will ensure that when a rainbow family moves, the familial ties among the members of the family – as legally established and reflected in a birth certificate issued by another Member State – will automatically be recognised in the host Member State for all purposes of national law (including family reunification under Directive 2004/38)’.

It’s important to note that, with regards to issues of cross-border mobility relating to gender identity, the Court has not yet had the opportunity to rule on the rights of parental couples where one or both parents are transgender or non-binary. A 2020 report from Transgender Europe (Karsay) notes that - in addition to the obstacles discussed above - these couples suffer from additional obstacles to freedom of movement and recognition of parental bond. For example, the absence or bureaucratic complexity of the legal procedures for gender recognition can also preclude the recognition of marriage, the birth certificate and the filiation relationship between parents and children.

It is also worth recalling that several interesting cases concerning the cross-border recognition of LGBTIQ* couples and families are still pending before the CJEU and the ECtHR.

With regards to the legal recognition of the right to marry of same-sex couples, three appeals have been registered before the ECtHR, two against Poland (1, 2), the other against Romania. The first two cases concern same-sex couples to whom the Polish authorities refused to register their marriage (celebrated abroad), thus depriving them of the rights normally recognized to married couples in Poland. The third case is an appeal presented by the Coman-Hamilton couple, applicants of the CJEU Coman ruling referred to above. With this appeal currently pending, the couple considers the protracted refusal of the Romanian authorities to recognize their marriage and its legal effects as a violation of the right to marry (Article 12 of the ECHR) and discrimination due to sexual orientation (Article 14) read in conjunction with articles 6, par. 1, 8, 12 and 13 of the ECHR).

With regard to the rights of same-parent couples in cross-border situations, the ECtHR will be called upon to rule on the case of a couple challenging Poland for the non-recognition of the civil union and the birth certificate of the child born in England (NELFA).  

Photo credit: Bjoertvedt, via wikicommons 

Protecting the right to a nationality for children of same-sex couples in the EU – A key issue before the CJEU in V.M.A. v Stolichna Obsthina (C-490/20)

 

Patrícia Cabral, Legal Policy Officer, European Network on Statelessness*

The enjoyment of LGBTIQ* rights varies across Europe, including the recognition of same-sex partnerships or marriages and the recognition of legal parentage between children and those who raise them as parents – regardless of biology, gender or sexual orientation. As a result, rainbow families in Europe (families where a child has at least one parent who identifies themselves as lesbian, gay, bisexual, trans, intersex or queer) can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk of statelessness.

Such cases have occurred across several countries in Europe and reflect a wider concerning trend within the EU, where LGBTIQ*-related discriminatory laws and practices by Member States impact on the child’s right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) will now have an opportunity to address this issue in a pending case concerning a child born to same-sex parents in Spain.

The case before the CJEU

The case before the CJEU, V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20), concerns a child born in Spain, to a British mother and a Bulgarian mother, who had entered into a civil marriage in the UK before the birth of the child. Spain issued a birth certificate, which recorded both mothers as the child’s parents, but which does not specify whether one of the women is the biological mother. The Bulgarian mother subsequently applied for the issuance of a birth certificate for the child in Bulgaria. The Bulgarian authorities refused to issue a birth certificate, on the grounds that no evidence was provided about the child’s parentage with respect to her biological mother, and that the registration of a birth certificate with two female parents was contrary to public policy, as same-sex marriages are not permitted in Bulgaria.

One of the questions asked by the domestic court to the CJEU is whether the Bulgarian authorities can refuse to issue a birth certificate on the grounds that the applicant refuses to provide information on who is the biological mother. The CJEU is also asked to consider how to strike a balance between the national and constitutional identity of the Member States (protected by Article 4(2) TEU) on the one hand, and the right to respect for private and family life and the best interests of the child on the other (Articles 7 and 24(2) of the EU Charter of Fundamental Rights).

The domestic court noted that the refusal to issue a birth certificate by Bulgaria constitutes an obstacle to the issuance of identity documents and may impede the exercise of the child’s rights as an EU citizen, asking the CJEU whether this affects the interpretation of EU law. Even though it recognises that without a birth certificate the child would be unable to acquire identity documents and exercise EU citizenship rights, the domestic court does not explicitly address the impact that this may have on the child’s right to a nationality and the risk of statelessness in its request for a preliminary ruling.

In the request for a preliminary ruling, the domestic court assumes that the child would be entitled to British nationality, considering the impact that Brexit would have in the exercise of her rights as an EU citizen. However, new evidence has subsequently been submitted to the court that the UK has since refused nationality to the child (based on special provisions that do not allow a parent who acquired British nationality by descent to pass on their nationality to a child born outside the UK). As neither of the mothers holds Spanish nationality, although she was born in Spain, the child did not acquire Spanish nationality at birth. She would need to rely on a safeguard in law which ensures that children born in Spain who would otherwise be stateless can acquire Spanish nationality. However, to apply this safeguard it must be demonstrated that the child is unable to acquire any other nationality. The Bulgarian authorities’ denial of access to identity documents, which are essential for the child to evidence her Bulgarian nationality and effectively enjoy her right to Bulgarian nationality, contradict the fact that according to Bulgarian law, the child is entitled to Bulgarian nationality (see below for further elaboration on this point).

This poses a particular and paradoxical challenge in this case, in terms of the ability of the child to provide evidence that she is effectively prevented from acquiring another nationality in order for her to be able to take advantage of the Spanish safeguard. Furthermore, had the child been born in a country without a safeguard that protects children born stateless on the territory, the situation would remain unresolved and the child would be stateless due to discriminatory birth registration practices by the Bulgarian authorities. Given that the UK and Spain have both confirmed the child is neither a British nor a Spanish national, the child is currently stateless, or at least at risk of statelessness. While it is unfortunate that the domestic court did not address the impact on the child’s right to a nationality, the CJEU is free to reformulate the questions referred to it and provide all the elements of interpretation of EU law relevant to the case, including those related to access to EU citizenship and statelessness. This is a fundamental issue that the CJEU must resolve in this case.

In its request for a preliminary ruling, the court asks whether Member States have broad discretion as regards the rules for establishing parentage, however the issue is not the establishment of parentage but rather the recognition in Bulgaria, of the legal parentage established in Spain. In line with caselaw from the CJEU and the European Court of Human Rights (ECtHR), the margin of discretion that Members States have in the recognition of parentage, particularly when this impacts on the child’s best interests and identity, is narrower than for the establishment of parentage. As further explained in this piece, doubts remain as to whether the domestic authorities are refusing to recognise the legal parentage established between the child and her mothers as evidenced by the Spanish birth certificate, or whether they recognise the parentage but refuse to issue a birth certificate. Whichever position the authorities are taking, it has a severe impact on the child’s rights and the refusal to issue a birth certificate results in denying her Bulgarian nationality and thus access to EU citizenship.

Discriminatory birth registration practices negatively impact the fulfilment of children’s rights

Most, but not all of us, have had our births registered. Birth registration involves the official recording of a birth within the civil registry, which records both the fact of the birth and its characteristics. It often results in a birth certificate issued by the civil registrar that provides proof that the child has had their birth registered and is essential evidence of a child's family ties as well as their place of birth. These are key aspects of legal identity and can be critical to establishing the child’s nationality, as nationality is usually acquired either through the parents (jus sanguinis), the place of birth (jus soli), or a combination of the two.

Lack of birth registration is not the same as statelessness, yet it heightens the risk of leaving children without a nationality. Given the key information birth registration provides about individuals and their links to a State, either through the parents or place of birth, not having a birth registered or a birth certificate evidencing registration can contribute to difficulties establishing these links and consequently expose them to the risk of statelessness. Children in this situation face severe obstacles in exercising the rights to which they are entitled under international law such as the 1961 Convention on the Reduction of Statelessness and the 1989 Convention on the Rights of the Child (CRC), including access to education, healthcare and social security. In the case of children born to EU citizens, lack of birth registration and consequent impacts on acquiring a nationality will also impede on their ability to exercise their rights as EU citizens, including free movement rights.

Ultimately, it is never in the child’s best interests to be left stateless, even for a short period of time. As stressed by UNHCR in its Guidelines on Statelessness No. 4, “it follows from Articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth”.

In its concluding observations to the Bulgarian government in 2018 (CCPR/C/BGR/CO/4), the UN Human Rights Committee noted with concern that same-sex couples married abroad and their children are denied access to civil registration, and made recommendations towards eliminating discrimination on the basis of sexual orientation or gender identity. Such discriminatory birth registration practices against same-sex couples often have a serious impact on the child’s right to a nationality and may render a child stateless, leading to other violations of the child’s rights. This is the situation in the current case, where the Bulgarian authorities have refused to issue a Bulgarian birth certificate for the child on the basis of birth, gender and sexual orientation.

Somewhat paradoxically, in the current case the domestic court has seemingly recognised the legal parentage between the child and the Bulgarian mother, as evidenced by the Spanish birth certificate, through its conclusion that the child would anyway be a Bulgarian national by virtue of having a Bulgarian mother (although see below why this assertion is questionable). Given the legal parentage has been recognised by the Bulgarian authorities in this way, the refusal to issue a birth certificate on the basis of establishing parentage constitutes direct discrimination based on birth, sexual orientation and gender. According to Article 60(2) of the Bulgarian Family Code, the mother of the child is the woman who gave birth to the child, therefore the woman who has not given birth is not considered a mother. However, in a similar situation of an opposite sex couple this issue would not arise, as both parents would be included in the birth certificate without requiring proof of parentage. Such discrimination is not justifiable and requesting information on the biological parentage in this case therefore constitutes a violation of Article 21(1) EU Charter of Fundamental Rights (CFR).

This discrimination based on the sexual orientation of the parents and its impact on the child’s acquisition of nationality is further at odds with the Convention on the Rights of the Child, ratified by all EU Member States, as all children have the right to be registered immediately after birth and the right to acquire a nationality without discrimination of any kind and irrespective of the child’s or their parent’s status (Articles 2 and 7 CRC). The case also raises other important questions beyond the scope of this commentary, but which have been discussed by other experts.

Denial of a child’s nationality in practice, despite entitlement in the law, leads to statelessness

According to the 1954 Convention relating to the Status of Stateless Persons, a stateless person is somebody who is not considered as a national by any State under the operation of its law. This has been authoritatively interpreted by UNHCR as requiring “a mixed question of fact and law”, meaning that statelessness is not just about the letter of the law, but about how the competent authorities apply the law in a specific case. UNHCR also asserts that “under the operation of its law” is not synonymous with “by operation of law”, a term which signifies that acquisition of nationality is automatic in nature, as opposed to other non-automatic mechanisms to acquire nationality (such as through naturalisation).

According to the Bulgarian court, the question of the child’s right to a nationality does not arise in this case as a result of the authorities’ refusal to issue a Bulgarian birth certificate for the child. The court states that the child is still a “Bulgarian national by operation of law”. This suggests that the child would be automatically considered a national under Bulgarian law, but it must be noted that nationality cannot be established by court (Article 4 of the Law on Bulgarian Nationality) and regard must be given to how the law is applied in practice. According to UNHCR’s guidance, asserting whether a person is considered a national under a State’s law and practice requires evaluating evidence issued by the competent authorities. When nationality is acquired automatically, i.e. “by operation of law”, birth registration is usually the document that provides evidence of acquisition of nationality. By refusing to issue a birth certificate, which provides evidence of the legal parentage between the child and her Bulgarian mother, the authorities are also denying the child access to identity documents which are essential for her to evidence her Bulgarian nationality and to effectively enjoy her right to a nationality and all rights derived from it. By extension, the child is also prevented from enjoying her EU citizenship, which the CJEU has reiterated to be “the fundamental status of nationals of the Member States”.

As noted by UNHCR, “where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality” – as in the case at hand, where the authorities are preventing access to identity documents – “it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.

Denial of EU citizenship and related rights

Refusing to issue a birth certificate should therefore be interpreted as a refusal to recognise Bulgarian nationality, rendering the child stateless. This would also automatically impact on the child’s access to EU citizenship and on the enjoyment of the rights derived from it. As the CJEU held in the Zambrano case, Article 20 TFEU “precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. The refusal to issue a birth certificate means she would be unable to evidence the acquisition of Bulgarian nationality and has no entitlement to any other nationality of an EU Member State, which would result in a denial to acquire EU citizenship and entirely deprive the child from enjoying her rights as an EU citizen.

Furthermore, the CJEU has held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly. In the Coman ruling (discussed here), it noted that the obligation to recognise same-sex marriages, for the purpose of granting a derived right of residence to a third-country national, does not undermine the national identity of Member States protected by Article 4(2) TEU or pose a threat to public policy. While Member States are free to decide whether to allow marriage between persons of the same sex, they are precluded from imposing national measures which may obstruct the exercise of free movement rights and such measures must comply with the EU Charter of Fundamental Rights. Although in Coman the CJEU addressed the granting of a derived right of residence to a third-country national who was married to an EU citizen, the principles outlined in the judgment could be applied to the present case in V.M.A. v Stolichna Obsthina.

Upholding EU commitments to equality for rainbow families

The EU has made important strides towards recognising and upholding the rights of children of rainbow families and their parents in recent years, not least with the recent introduction of a five-year LGBTIQ Equality Strategy, which includes protecting the rights of rainbow families as one of four key pillars for action between 2020-2025. As President von der Leyen asserted in her State of the Union address, “if one is parent in one country, one is parent in every country”. As part of the strategy, the European Commission commits to bringing forward a legislative initiative on the mutual recognition of parenthood and to explore possible measures to support the mutual recognition of same-sex partnership between Member States. This builds on work in recent years by the Commission under its List of Actions to advance LGBTIQ equality to address free movement and cross-border issues, through its dialogue with Member States to remove obstacles concerning the recognition of birth certificates of children born to same-sex couples in another Member State.

Furthermore, in order to improve legal certainty for EU citizens exercising their free movement rights, and to ensure a more effective and uniform application of the free movement legislation across the EU, the European Commission committed in the LGBTIQ Equality Strategy (as also described in the EU Citizenship Report 2020) to review the 2009 guidelines on free movement in 2022 and to ensure that the updated guidelines reflect the diversity of families, and to help all families, including rainbow families, to exercise their right to free movement.

Through these initiatives, the EU demonstrates the responsibility of both the EU and its Member States to remove barriers to birth registration and to ensure the recognition of birth certificates of children born to rainbow families, the legal parentage of the children and any consequences on the child’s right to a nationality.

In 2021, the EU will publish a 2021-24 strategy on the rights of the child, providing a comprehensive framework for EU action to promote and protect children’s rights, and including recommendations for action by other EU institutions, EU Member States and stakeholders. This presents a further opportunity for the EU to outline action to protect the rights of children of rainbow families, including the right to a nationality.

The role of the courts in respecting the best interests of the child and upholding the child’s right to a nationality

Nationality law usually falls within a Member State’s competency. However, as the CJEU emphasised in Rottman, when exercising their powers in the sphere of acquisition and loss of nationality, Member States must have due regard to EU law, including upholding the EU’s values and the rights enshrined in the EU Charter of Fundamental Rights. (See discussion of later CJEU case law here)

Under its Article 53, the level of protection granted by the provisions of the EU Charter of Fundamental Rights is at least equivalent to the protection granted by the European Convention on Human Rights (ECHR) and international law, including the CRC. It is therefore essential for the CJEU to draw from international jurisprudence on the right to respect for private and family life in the consideration of this case, as well as to consider the right to a nationality, the principle of non-discrimination and the best interests of the child in line with international human rights law.

Case law from the ECtHR affirms that the recognition of parentage and acquisition of nationality fall within the ambit of the right to respect for private and family life (e.g. Mennesson and Genovese), as protected by Article 8 ECHR and Article 7 CFR, and provides guidance to its interpretation. Particularly in Mennesson, the ECtHR has stressed that respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship, emphasising that children have a right to legal identity.

The child’s right to a nationality is further protected under Article 15 UDHR, Article 24(2) ICCPR, and Articles 3 and 7 of the CRC. The UN Human Rights Committee has recently found that failure to identify statelessness and assess a child’s nationality status led to a violation of the right to a nationality (Zhao v Netherlands). Furthermore, in their General Comment No 14, the Committee on the Rights of the Child recognises that the best interests of the child might conflict with other interests, including the public interest, and notes that authorities must bear in mind that the right of the child to have their best interests taken as a primary consideration means that the child's best interests are not just one of several considerations, nor should they be considered on the same level as all other considerations. Rather, they take priority in all circumstances, “especially when an action has an undeniable impact on the children concerned” (CRC General Comment No 14 para 40), as is the situation in this case.

The courts play a key role in interpreting national legislation and thus aligning domestic practice with the regional and international human rights framework. While domestic courts must not lose sight of their international obligations, the regional courts have a further responsibility to ensure that the diversity of national jurisdictions does not compromise respect for fundamental rights or the best interests of the child. Cases similar to the one presently before the CJEU have been reported across Europe, with children born to same-sex couples facing discrimination in recognition of civil status documents and in access to birth registration and identity documents, particularly in Poland, Bulgaria and Ireland. The nationality laws of all Member States must be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship. Currently, children are being born stateless or at risk of statelessness in the EU and denied EU citizenship, solely because of a prejudice towards their parents’ sexual orientation. The CJEU therefore has an essential role to play in supporting progress towards a seamless implementation of international standards on statelessness and human rights law in all EU Member States, and towards a Europe where no child is born stateless.

*Reblogged from the European Network on Statelessness blog

Barnard & Peers: chapter 13

Photo credit: Laurent Verdier, via Wikimedia Commons

Jonathan Sumption’s view of human rights makes no sense in relation to the history of gay rights

Professor Paul Johnson, Head of the Department of Sociology at the University of York; editor, ECHR Sexual Orientation Blog

Jonathan Sumption, in his Reith Lecture “Human Rights and Wrongs”, attempts to persuade us that the European Court of Human Rights has usurped the power of democratically elected governments by way of an ever expanding interpretation and application of the European Convention on Human Rights. Sumption claims that the Court is continually adding rights, in areas that should be left to governments to legislate in, by interpreting the Convention in ways that it was never intended to do so.

This is not the first time that Sumption has made such claims. Back in 2016, Sumption argued that the Court was “the international flag-bearer for judge made fundamental law extending well beyond the text which it is charged with applying”. Sumption’s claims chime with the idea, popularized by some politicians, that Strasbourg judges routinely exceed their authority in order to impose changes on and meddle with law in the UK and, in doing so, “abuse” human rights.

If you are a gay or lesbian person reading this, you might be particularly irked by Sumption’s remarks. And if you are irked, it’s probably because you know that, whilst the Strasbourg Court has certainly played an important part in bringing about changes to UK laws that once discriminated against people on the grounds of sexual orientation, the Court has also frequently adopted a conservative interpretation of the Convention and, much to the disappointment of gay men and lesbians, rejected complaints about sexual orientation discrimination.

When it comes to sexual orientation issues, it is restraint rather than activism that has usually been a hallmark of the Strasbourg approach to interpreting the Convention. So, whilst Sumption would have us believe that the Court has invented mechanisms – like its “living instrument” doctrine – to enable it to give rights away to everyone, the reality is that the Court is usually very careful and cautious in evolving its interpretation of the Convention. And in terms of sexual orientation discrimination, the Court’s approach has often proved extremely frustrating and damaging.  

For example, take the criminalization of private same-sex sexual acts between consenting adults. Although such criminalization no longer exists in Europe, it did exist in several countries when the Convention came into force. In 1955, a man who had been imprisoned in Germany for “two cases of homosexuality” under law previously enacted by the National Socialist German Workers’ (Nazi) Party complained to Strasbourg about his treatment. Strasbourg rejected the complaint and, in relation to the right to respect for private life enshrined in Article 8 of the Convention – which Sumption claims has been stretched beyond recognition by the Court – stated that this permitted a state to make homosexuality a punishable offence. It took 26 years for Strasbourg to change its mind on this when, in the famous case brought by Jeffrey Dudgeon, it declared that the complete criminalization of same-sex sexual acts in Northern Ireland was in violation of Article 8. However, even in 1981, Strasbourg was quite comfortable to let the UK maintain a higher minimum age for male same-sex sexual acts, and it was only in response to a complaint by Euan Sutherland in the late 1990s that Strasbourg recognized that an unequal “age of consent” was in violation of the Convention.

Nearly every aspect of sexual orientation discrimination complained about in the Court has followed the same pattern. Complaints about such discrimination have been rejected time and time again, until Strasbourg has finally come around to recognizing a further aspect of “gay rights” under the Convention. And this is because the Strasbourg approach is always cautious and, as Judge Sicilianos has put it, the Court has “always sought to avoid the evolutive interpretation of the Convention from being perceived … as a sort of ‘carte blanche’ allowing for excessive liberties with the text of the Convention”. The Court has avoided such excessive liberties by developing interpretative mechanisms that pay attention to the intentions of those who wrote the Convention, and the “present-day” conditions in which the Convention operates. One such way that the Court does this is by taking into account European consensus on certain issues that come before it, so as to be guided by “present-day” conditions rather than its own view of what societal conditions should be.

The Court’s restrained approach is often a disaster for gay men and lesbians. The clearest contemporary example of this is the Court’s repeated refusal to recognize that the right to marry enshrined in the Convention places states under an obligation to grant same-sex couples access to marriage. Completely contrary to Sumption’s view of what the Court does, the Court has resolutely refused to evolve its interpretation of the right to marry in such a way that would make same-sex marriage an effective human right. As such, the Court’s current position makes the Convention inapplicable to same-sex couples who are excluded from marriage in European countries, including in one part of the UK.

So I am irked by Sumption’s claims that the Court is usurping state power and meddling in things that should be left to governments and the ballot box. Not only is this not true, some of us wish it were true. If you are a gay man or lesbian in a European country where you have very few rights, are subject to horrendous forms of discrimination, and are at the mercy of a majority who will not support legal change by parliamentary means, then you look to the Strasbourg Court for help. Unfortunately, because the Strasbourg Court often behaves in exactly the opposite way to how Sumption describes it, it is often unwilling to extend the protection of the Convention to gay men and lesbians in ways that would challenge homophobic domestic laws. To put it simply, when gay men and lesbians knock at Strasbourg’s door and ask for help, they very often have the door slammed in their faces.

The European Court of Human Rights is the conscience of Europe. It interprets a Convention that opens with the commitment to the maintenance and further realization of human rights. To further realize human rights the Court must evolve its interpretation of the Convention and, therefore, it must be encouraged to do so. We – the “everyone” that the Convention secures human rights and fundamental freedoms to – must demand, encourage and support the Court in interpreting the Convention in ways that challenge prevailing forms of inequality and discrimination in European countries. That’s why Sumption is wrong that human rights law should not, for the most part, be used to decide sensitive issues which should be decided through the ballot box. Such a view encourages Strasbourg to be cautious; on the contrary, we should encourage Strasbourg to be bold in realizing a vision in which human rights law prevails in Europe.

Listen to some of the gay men and lesbians from the UK who have taken cases to Strasbourg here: https://goingtostrasbourg.com/podcast

Barnard & Peers: chapter 9, chapter 20

Photo credit: ECHR Sexual Orientation Blog

Awaiting the ECJ Judgment in Coman: Towards the Cross-Border Legal Recognition of Same-Sex Marriages in the EU?

Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading

Photo: Mr Adrian Coman (right) with his spouse, Mr Claibourn Robert Hamilton (left)

(picture from PinkNews http://www.pinknews.co.uk/2016/11/29/romania-goes-to-court-over-whether-to-recognise-gay-couples-marriage/)

Introduction

The legal recognition of same-sex relationships has, in the last couple of decades, become one of the most prominent issues discussed in parliaments, in courts, and in the media, around the world, with views on both sides of the debate being overwhelmingly strong. This is a complicated and sensitive matter which touches on issues relating to human rights, religion, morality, and tradition, as well as on constitutional principles such as equality, autonomy, and human dignity. Despite the fact that there has been research which demonstrates the benefits – especially for young LGB persons – of opening marriage to same-sex couples (see, for instance here), most religions and Churches reject this move and are, even, often vehemently opposed to it, considering homosexuality a ‘sin’, this leading, in turn, to negative societal attitudes towards LGB persons, especially in countries that are deeply religious. The decision to extend legal recognition to same-sex relationships – in countries where this has been made – does not signal the end of the debate, but a number of additional questions emerge once this step is taken: what legal status should be given to same-sex couples? Should they be allowed to adopt children as a couple? Should same-sex couples comprised of two men be allowed to have a child through a surrogacy arrangement? Should same-sex couples comprised of two women be allowed to have a child (as a couple) through medically assisted insemination and, if yes, should the State fund this?

Europe has, until recently, boasted as the most progressive continent regarding the legal recognition of same-sex relationships, with Denmark being the first country in the world to introduce same-sex registered partnerships (in 1989) and the Netherlands being the first country to introduce same-sex marriage (in 2001). In fact, all western EU Member States now make provision for legal recognition of same-sex relationships, and in some of them the law treats same-sex couples in exactly the same way as it treats opposite-sex couples. Yet, the majority of the eastern European countries do not offer legal recognition to same-sex relationships and, in fact, a handful of them have – or have recently introduced – a constitutional ban on same-sex marriage (of the EU Member States, these are Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia).

The EU has managed to avoid having to take a clear stance on the issue of the legal recognition of same-sex relationships, considering that this is a matter that falls exclusively within Member State competence. However, what happens when a married couple comprised of persons of the same sex moves between Member States in exercise of EU free movement rights? Must a same-sex marriage entered into in another Member State be recognised by a Member State which does not provide for the legal recognition of same-sex relationships in its territory, when a Union citizen seeks to rely on EU law to claim family reunification rights on his return to that State? The EU judiciary has, now, been called to clarify the EU’s position on this issue in the Coman case (Case C-673/16). The case is pending before the ECJ and the judgment is eagerly awaited by LGBT organisations, lawyers and academics interested in LGBT rights, and married same-sex couples who have, so far, been disappointed by the lack of clarity as regards the protection they enjoy under EU law when exercising their free movement rights.

LGBT Rights in Romania

Romania does not provide any form of legal recognition for same-sex couples and two draft bills on the matter have been recently rejected by the Romanian Parliament with large majorities. In addition, the country’s Civil Code expressly bans same-sex marriages and registered partnerships and prohibits the recognition of same-sex marriages and registered partnerships entered into abroad. Romania is a deeply religious country with the majority of its population being against the legal recognition of same-sex relationships: in 2016, within a period of six months, around 3 million Romanians signed a petition calling for a referendum to change the country’s constitution to define marriage as an institution between a man and a woman, which, if it yields a positive result, will effectively introduce a constitutional ban on same-sex marriage. The petition – which has been strongly backed by the US Evangelical firm Liberty Counsel and the Romanian Orthodox Church – has been organised by the ‘Campaign for Family’ which is a Romanian coalition of religious and conservative NGOs established in 2015, and has been held valid by the Romanian Constitutional Court. At the moment, there is, still, no constitutional ban on same-sex marriage in Romania, as the proposed constitutional amendment can be made only once it is approved in a referendum and by a majority in the Romanian parliament.

Romania has received one of the lowest scores in ILGA Europe’s Rainbow Map (with only 3 other EU Member States – Poland, Lithuania and Latvia – having received a lower score), as the protection it offers to LGBT persons and same-sex couples appears rather rudimentary. This seems to be reflective of the fact that public acceptance of LGBT people and same-sex relationships in this country is lower than the EU average.

The Coman case is the second reference to the ECJ from Romania concerning LGB rights; the first such case was Asociaţia ACCEPT, which involved the prohibition of discrimination on the ground of sexual orientation under Directive 2000/78 (see the comments on that case by Belavusau here).

The Coman Case

Adrian Coman is a Romanian gay rights activist. He married his male partner (Claibourn Robert Hamilton) – a US citizen – in Belgium in 2010 and the couple currently lives in the US. In 2012, Mr Coman asked the Romanian immigration authorities for information on the requirements for obtaining a residence permit for his spouse. He was told that such a permit would be refused on the ground that the couple’s same-sex marriage could not be recognised in Romania as the Romanian Civil Code bans the recognition of same-sex marriages performed abroad; if Mr Coman’s spouse was a woman, the marriage would have been automatically recognised in Romania and Mr Coman’s spouse would have been entitled to a residence permit by virtue of that. As a result of this, the couple brought an action, claiming that the refusal of the residence permit due to the failure of the Romanian authorities to recognise same-sex marriages contracted abroad, amounted to a breach of Mr Coman’s EU free movement rights as well as to discrimination on the ground of sexual orientation, contrary to the EU Charter of Fundamental Rights (EUCFR). The first instance court hearing the case referred a question to the Romanian Constitutional Court regarding the constitutionality of the relevant provisions of the Civil Code. The Romanian Constitutional Court, by a majority of seven to two, then, decided to stay the proceedings and to refer a number of questions for a preliminary ruling to the ECJ, which can be summarised as follows:

a) whether the word ‘spouse’ in Article 2(2)(a) of Directive 2004/38 includes a same-sex spouse and, if yes, whether the host Member State is required by the Directive to grant the right of residence on its territory for more than three months to the same-sex spouse of a migrant Union citizen

and, in case the previous question is answered in the negative,

b) whether the same-sex spouse of a migrant Union citizen can qualify as ‘any other family member’ under Article 3(2)(a) of the 2004 Directive or as ‘the partner with whom the EU citizen has a stable relationship’ under Article 3(2)(b) of the Directive and, if yes, whether the host Member State is required to facilitate entry and residence on its territory by the same-sex spouse of a migrant Union citizen, even if it does not recognise same-sex marriage and does not provide for an alternative form of legal recognition for same-sex couples.

The hearing for the case has been scheduled for 30 March 2017. 

The case has attracted extensive national and international media coverage and a number of Romanian and non-Romanian NGOs have intervened.

The Issue in a Nutshell

Although the EU Treaties do not make reference to the family reunification rights of Union citizens who exercise their free movement rights, already in the 1960s it was recognised that if Member State nationals were to move between Member States in furtherance of the Community’s objectives, they had to be given the right to be accompanied by their close family members in the Member State to which they moved (see Regulation 1612/68 and Directive 73/148). Accordingly, secondary legislation has always made provision for family reunification rights – these are, currently, provided by Directive 2004/38 – for Union citizens who exercise their right to move and reside freely in the territory of a Member State other than that of their nationality. In addition ‘returnees’ (i.e. Member State nationals who return to their State of nationality after having exercised free movement rights) have been considered, also, to enjoy such rights by virtue of primary EU law and, in particular, by the EU free movement provisions (see the Singh case); however, as made clear in the O & B case (para. 50), the interpretation of the family reunification rights granted by Directive 2004/38 is relevant to them as well, since the family reunification rights laid down in the Directive apply ‘by analogy’ to returnees, this being the reason that the questions referred in Coman (which involved a ‘returnee’) concerned the interpretation of the Directive.

The ‘spouse’ of the migrant Union citizen (now referred to in Article 2(2)(a) of Directive 2004/38), has always been considered one of the family members that can rely on EU law in order to require the Member State of destination to accept him or her in its territory. The nationality of the ‘spouse’ and, in particular, whether he is a Union citizen or a third-country national, has never mattered, as the rationale behind granting family reunification rights has, simply, been to encourage the exercise of free movement by the Union citizen and this can be impeded if the spouse – whatever his/her nationality – cannot accompany or join the migrant Union citizen. Practically speaking, family reunification rights have been mainly used by Union citizens who are married to third-country nationals, as the latter do not enjoy an individual right to free movement under EU law.

The important question for our purposes – and the one raised in Coman – is whether the term ‘spouse’ in this context includes the same-sex spouse of the Union citizen who has exercised free movement rights. A quick perusal of Directive 2004/38 demonstrates that the matter is not clear: the gender- and sexual orientation-neutral term ‘spouse’ is used in Article 2(2)(a) of the Directive, when defining one of the categories of family members that enjoy an automatic right to join or accompany the migrant Union citizen in the Member State of destination, without the meaning of this term being further clarified in any other part of the Directive. This is so, despite the fact that when the proposal for the Directive was discussed by the EU legislature, the question of whether the term should be read to include a same-sex spouse had been expressly laid on the table.

Due to the sensitivity of the issue and the divergence of views among the Member States, the EU legislature consciously chose vagueness over clarity, thus making this an issue that would have to be resolved by judicial interpretation. Coman is the first opportunity that has been given to the ECJ for providing an interpretation of the term ‘spouse’ in this context and for clarifying whether this term must be read as including the same-sex spouse of a Union citizen. Three years ago – in the Cocaj case (C-459/14) – the ECJ was asked to clarify the meaning of the term ‘registered partner’ in the same Directive and to specify, in particular, whether it includes same-sex registered partners, but the reference was subsequently withdrawn by the referring court, meaning that that question remains unresolved.

What Must the Court rule?

Two years ago, the issue of the legal recognition of same-sex relationships in the US was resolved once and for all by the US Supreme Court’s judgment in the Obergefell v. Hodges case. The Supreme Court based its decision to require all US states to extend marriage to same-sex couples and to recognise same-sex marriages contracted in another US state, on a dual basis: a) the need to respect the fundamental right to marry as one of the fundamental liberties protected by the US Constitution’s Fourteenth Amendment’s Due Process Clause, since the freedom to choose who to marry is central to individual dignity and autonomy; and b) the US Constitution’s Fourteenth Amendment’s Equal Protection Clause, since the refusal to open marriage to same-sex couples leads to inequality between same-sex and opposite-sex couples: the former are denied benefits and a status afforded to opposite-sex couples and – unlike the latter – are barred from exercising a fundamental right (i.e. the right to marry).

As argued in another post in this blog, Obergefell v. Hodges is the case that put the US ahead of the EU with regards to the issue of the legal recognition of same-sex relationships, and has stripped the latter of its position as a pioneer in the field of LGBT rights protection. However, is Coman now the EU’s opportunity not merely to catch-up with the US but, also, to re-acquire its position as pioneer in the protection of LGB rights, since EU law already provides protection to LGB persons from discrimination on the ground of sexual orientation in the employment field, something which is currently lacking at federal level in the US?

Coman is only about the cross-border legal recognition of same-sex relationships and, in particular, about the cross-border recognition of same-sex marriages. Accordingly, the Court is not asked to rule on whether the EU – as the US – can require Member States to open marriage to same-sex couples in their own territory. After all, it is clear that even if it was asked to rule on this, its hands would be tied since – as it confirmed not long ago in cases involving sexual orientation discrimination (see, for instance, Römer and Hay) – ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. This means that whether same-sex couples should be allowed to marry in a Member State, is a matter entirely left to be decided by the said Member State. Refusing to allow same-sex couples to marry does, of course, violate a number of human rights, however because the issue of determining the marital status of persons falls within the exclusive competence of the Member States and because the way that each Member State decides to regulate this matter has not – so far – interfered with the exercise of rights stemming from EU law and/or with the execution of any of the EU’s policies, the issue falls outside the remit of the Court.

The question, therefore, is whether the Court in Coman should rule that the term ‘spouse’ in Directive 2004/38 must be read to include the same-sex spouse of a Union citizen and, thus, to effectively require all Member States (even those that have not opened marriage to same-sex couples in their territory) to admit within their territory the same-sex spouse of Union citizens who move between Member States.

In my view the answer to this question is ‘yes’, and this is for the following reasons.

First, if the ECJ rules that the term ‘spouse’ does not include same-sex spouses, this will amount – in effect – to granting a license to the Member States to restrict the free movement rights of LGB Union citizens who are in a same-sex marriage. It is hard to believe that a Union citizen who is happily married in a Member State would willingly move to another Member State where his/her same-sex spouse would not be allowed to accompany or join him/her; or, assuming that the spouse could join him/her in the host State on another basis (i.e. not as his/her spouse), it would be highly unlikely that (s)he would be willing to move to a Member State where the marriage would not be recognised and, thus, where his/her spouse and him/her would not be treated as a couple for the purposes of taxation, social security, property law, inheritance and so on, with the obvious disadvantages that would ensue from this.

In fact, the current lack of clarity that persists with regards to the mutual recognition of same-sex marriages in EU Member States and the consequent inconvenience that emerges as a result of this uncertainty is, in itself, an obstacle to free movement: being unsure as to whether your same-sex spouse may be able to join you in another Member State and/or be considered as your spouse there is highly likely to deter your exercise of free movement. The ECJ cannot interpret a provision of EU law (namely, Article 2(2)(a) of Directive 2004/38) in a way which permits Member States to breach other provisions of EU law (namely, the EU free movement provisions). A measure which impedes the exercise of free movement rights cannot be justified if it violates fundamental human rights protected under EU law (see, for instance, Carpenter, para. 40). Hence, a restriction on free movement which emerges as a result of the failure of a Member State to recognise a same-sex marriage, cannot be justified since, as will be seen below, it breaches a number of fundamental human rights protected under EU law.

Second, the ECJ – as one of the EU institutions – is bound by the EUCFR (see Art. 51(1) EUCFR), in interpreting EU law provisions (including Article 2(2)(a) of Directive 2004/38) it must ensure that it does not breach the prohibition of discrimination on the ground of sexual orientation, laid down in Article 21 EUCFR. An interpretation of the term ‘spouse’ which excludes from it same-sex spouses is, clearly, directly discriminatory on the ground of sexual orientation and is, thus, contrary to Article 21 of the Charter. Furthermore, the 2004 Directive itself provides in its Recital 31 that in accordance with the prohibition of discrimination contained in the Charter (in Article 21), Member States must implement it without discrimination between its beneficiaries on, inter alia, the ground of sexual orientation. Accordingly, the Directive itself appears to be requiring an interpretation of its provisions – including of the term ‘spouse’ – which does not give rise to discrimination against same-sex couples.

A third and related reason is that following (as required by Article 52(3) EUCFR) the ECtHR’s recent judgment in Pajić v Croatia (see the comments by Hodson here) which was a case about the family reunification rights of an unmarried same-sex couple, the refusal to recognise same-sex marriages validly recognised in another Member State and the consequent refusal to grant family reunification rights to same-sex married couples when they move between Member States – can amount to a breach of Article 7 EUCFR (the right to private and family life) when read together with Article 20 EUCFR which states that ‘Everyone is equal before the law’, given that same-sex married couples are treated differently, under the law, from opposite-sex married couples who, under EU law, enjoy automatic family reunification rights when they move to another Member State. Although – as confirmed in Pajić (para. 80) – the right to family life (as protected under Article 8 ECHR) does not give the right to a family member to enter or to settle in a particular country for family reunification purposes, States must exercise their ‘immigration policies in a manner which is compatible with a foreign national’s human rights, in particular the right to respect for his or her private or family life and the right not to be subject to discrimination’. Hence, although Article 7 EUCFR cannot, if interpreted in the same manner as Article 8 ECHR, be relied on to require a Member State to admit within its territory the (opposite-sex or same-sex) spouse of a Union citizen, when that provision is read together with Article 20 EUCFR, it requires same-sex spouses to be admitted to the territory of the host State under the same conditions that are imposed on opposite-sex spouses (i.e. automatically).

Fourth – and drawing inspiration from the US Supreme Court’s judgment in the Obergefell v. Hodges case – the refusal of the ECJ to consider same-sex marriages as valid marriages for the purposes of Directive 2004/38, is liable to amount to a breach of another human right protected under the EU Charter of Fundamental Rights, namely, the right to human dignity (Article 1 EUCFR). The argument goes as follows: forming intimate relationships with other individuals, choosing to formalise these relationships and consequently attaching to them a legal status is an exercise of personal autonomy, which is an aspect of the dignity of every human being. All human beings are equal in dignity. By prohibiting discrimination on the ground of sexual orientation, the EU has accepted the equal worth of all individuals irrespective of their sexual orientation, and, with it, the equal moral worth of opposite-sex and same-sex relationships. When the EU institutions and/or the Member States refuse to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, they treat such relationships differently from opposite-sex relationships and they seem to be considering the relationship choices of LGB individuals who are in a same-sex relationship as inferior to opposite-sex relationships and, hence, as not having the same moral worth as the latter. Treating LGB Union citizens as second-class citizens by failing to recognise and respect their choices in forming intimate relationships and formalising them can, therefore, amount to a violation of their right to human dignity.

Finally – following ECtHR case-law (see, for instance, Wagner) – by interpreting Directive 2004/38 in a way which refuses to recognise a family status (i.e. that of a ‘spouse’) the ECJ may be acting in a way which violates the right to family life, as this is protected under Article 7 EUCFR. In addition, by allowing Member States to relegate same-sex spouses to one of the other categories of family members laid down on the list provided in Directive 2004/38 and to strip them of their legal status – as asked in some of the questions referred to the ECJ in Coman – will, also, be contrary to EU law as this will not, only, amount to a breach of Article 7 EUCFR but will, also amount to a breach of the EU free movement provisions, given that migrant Union citizens will lose the automatic right to be accompanied or joined by their spouse in the Member State where they move, with the obvious deterrent effect that this may have.

It is true that as late as 2001, the ECJ attached a heteronormative meaning to the term ‘marriage’ noting, in its judgment in the case D and Sweden v. Council, that it ‘means a union between two persons of the opposite sex’. In subsequent years, however, it was made clear that the EU does recognise same-sex marriages as valid marriages for the purposes of EU law (for instance, when it comes to the application of the EU Staff Regulations – see the W case). Nonetheless, for the reasons stated above, the ECJ should now take the additional step of clearly holding that all Member States (and even those that do not provide legal recognition to same-sex relationships in their territory) must recognise same-sex marriages validly contracted in another Member State in situations that fall within the scope of EU law. A marriage validly contracted in one Member State – whether between two persons of the same- or two persons of the opposite-sex – should be considered a ‘marriage’ in every other Member State and, thus, the parties to a same-sex marriage should, also, be considered ‘spouses’ for the purposes of Directive 2004/38. This will mean that all EU Member States will be required by EU law to recognise same-sex marriages validly entered into in another Member State, and this will be so irrespective of whether they have opened marriage to same-sex couples in their own territory.

Barnard & Peers: chapter 13

Further Reading:

U. Belavusau and D. Kochenov, ‘On the “Entry Options” for the “Right to Love”: Federalizing Legal Opportunities for LGBT Movements in the EU’ EUI Working Paper Law 2016/09 available here

C. Bell and N. B. Selanec, ‘Who is a “spouse” under the Citizens’ Rights Directive? The prospect of mutual recognition of same-sex marriages in the EU’ (2016) 41 European Law Review 655

C. Cojocariu, ‘Same-Sex marriage before the courts and before the people: the story of a tumultuous year for LGBT rights in Romania’, VerfBlog, 25/1/2017

M. Fichera, ‘Same-Sex Marriage and the Role of Transnational Law: Changes in the European Landscape’ (2016) 17 German Law Journal 383 (available here)

N. Markard, ‘Dropping the Other Shoe: Obergefell and the Inevitability of the Constitutional Right to Equal Marriage’ (2016) 17 German Law Journal 509 (for an analysis of Obergefell) (available here)

S. Titshaw, ‘Same-Sex Spouses Last in Translation? How to Interpret “Spouse” in the EU Family Migration Directives’ (2016) 34 Boston University International Law Journal 45 (available here)

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) 21 Columbia Journal of European Law 195