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.
‘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).
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’.
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).