The “Wojewoda Mazowiecki” ruling: the recognition of same-sex couples to have and to hold, to love and to cherish, until death unites them in a gold two-handled urn*

 

Chiara De Capitani (PhD), a linguist agent at the European Commission and member of Amnesty International Belgique francophone’s Sexual Orientation and Gender Identity (OSIG) coordination. The views, thoughts and opinions expressed in this paper are solely that of the author and do not necessarily reflect the views, policy or opinion of the European Commission or of Amnesty International.

Photo credit: O. Ortelpa, via Wikimedia Commons

 

Introduction

In the Wojewoda Mazowiecki case (hereafter “the present case”), the Court of Justice of the European Union (hereafter “the Court”) was called upon to rule on whether to extend its jurisprudence concerning the civil registration of a surname or gender identity change obtained in another Member State to marriage certificates. In the present case, the applicants' State of origin does not recognize same-sex marriages and refused to transcribe a marriage certificate concluded in another EU Member State (hereafter “host Member State”).

In the present case, the Grand Chamber of the Court examined several crucial aspects of the recognition of same-sex marriages and found, for the first time, the existence of a general principle prohibiting any form of discrimination based on sexual orientation.

Indeed, according to the Court, although the rules relating to marriage and civil status fall under the jurisdiction of the Member States, they are obliged to recognize - for the purpose of exercising the rights conferred by EU law - the marital status acquired legally in another Member State. Furthermore, although Member States may establish the procedures for such marriages' recognition, these procedures must not render impossible or excessively difficult the implementation of rights conferred by European law.

Additionally, the present case highlights the necessity to ensure the effective enjoyment of rights that a Union citizen derives from Article 21 TFEU, notably that the family life that this citizen has created or strengthened in a Member State can be continued upon their return to their Member State of nationality.

The dispute in the main proceedings

Mr Trojan and Mr Cupriak-Trojan are a Polish and German-Polish same-sex couple who got married in Germany in 2018. Wishing to reside in Poland as a married couple, they filed a request for the transcription of the German marriage certificate in the Polish civil status register with the head of the Warsaw civil registry office in 2019. However, this request was denied on the grounds that Polish legislation does not allow same-sex marriages. After a series of failed appeals, the case was finally brought by referring Court to the Court of Justice.

Scope of the case: right to freedom of movement or EU citizenship?

At first glance, the facts resemble those of Coman in 2018 - a case concerning the application of the right of free movement to same-sex marriages - but the context is different here because both applicants are European citizens. Therefore, their right to move and reside freely within the Union does not depend on the recognition of their marriage for the purposes of family reunification under the provisions of the freedom of movement directive, but instead relies on the rights conferred to them by European citizenship according to Articles 20 and 21 of the TFEU.

Firstly, the Court recalls that, pursuant to these articles and its established case law, citizenship of the Union confers on each Union citizen a right to move and reside freely within the territory of the Member States and to rely on the rights pertaining to said EU citizenship (paras 41 and 42). These rights include the ability to lead a “normal family life” both in the host Member State and in the Member State of which the citizen is a national, benefiting from the presence of family members upon their return.

Additionally, the present case allows the Court to address one of the several unresolved issues from Coman: the obligation to recognize the marriage between the applicants extends beyond the specific context of family reunification, “extending the obligation to all areas of life in which a married couple may need to invoke their status as a couple” (Tryfonidou).

Practical effects of the non-recognition of the applicants' marriage

In light of these considerations, the Court specifies that the refusal by Polish authorities to recognize the applicants' marriage would cause them significant prejudice, resulting in serious administrative, professional, and private inconveniences (para 51). Indeed, the lack of recognition of their “certain” legal status, which is also enforceable against third parties, would hinder the everyday organization of the applicants' family life in their country of nationality - both in public and private spheres (paras 52-54).

The applicants, in their observations submitted to the Court, clarified that they had already experienced a series of constraints due to the non-recognition of their marital status: for example one of the applicants did not benefit from public health insurance coverage when he was unemployed, and his request to update his surname in the land register was rejected for one of his properties (para 50).

Furthermore, the Court has previously clarified in the Coman ruling that the notion of “public policy” as justification for a derogation from a fundamental freedom must be interpreted strictly and may be relied on if only there is a genuine and sufficiently serious threat to a fundamental interest of society (see Coman, para 44). In the present case, the Court notes that the obligation for the State of origin to recognize a marriage between same-sex Union citizens, contracted in the host Member State, does not undermine the institution of marriage in the State of origin, which remains defined by national law and falls under the competence of the Member States.

Obligation to establish a legal framework providing the recognition of same-sex couples

Polish legislation does not currently recognize the possibility for same-sex individuals to marry or conclude a civil union, since marriage is defined by the Polish Constitution as a union between a man and a woman. This notion was recently criticized by the European Court of Human Rights (hereafter “ECtHR”). In the Przybyszewska and others v. Poland ruling, the ECtHR found a violation of Poland’s positive obligation to protect private and family life arising from Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter “ECHR”), due to the absence of a national legislative framework offering recognition and legal protection to same-sex couples.

The rights guaranteed by Article 7 of the EU Charter of Fundamental Rights (hereafter “The Charter”) have the same meaning and scope as those guaranteed by Article 8 of the ECHR, with the latter provision constituting a minimum protection threshold. Therefore, the Court confirms, failure to recognise the marriage concluded by two Union citizens of the same-sex having exercised their freedom to move and reside is contrary to Article 7 of the Charter (para 67).

It is interesting to note that the Court appears to foresee the possibility of such a Charter violation even in a situation where people have stayed in another Member State to marry “on the grounds that” the law of the Member State of which they are nationals does not allow same-sex marriage and, therefore, only for the purpose of circumventing such a lack of authorization. This possibility appears to be implied throughout the text of the present case due to the recognition by the Court of the right of same-sex individuals to continue a family life that would only have been “strengthened” in the host Member State – without, I believe, the need for them to “genuinely reside” there.

It follows from Article 7 of the Charter and Article 8 ECHR that a Member State that does not authorize same-sex marriages must establish adequate procedures for recognizing such marriages when legally concluded in a host Member State by two Union citizens exercising their freedom of movement and residence rights.

On this point, several authors (Luku, Tryfonidou, Acconciamessa) question the risk of “downgrading” due to the divergence of rights recognized by Member States who do recognise unions contracted by same-sex individuals. Indeed, the rights recognized to same-sex individuals vary depending on the type of union that the Member State allows them to contract - civil union or marriage - as well as the content of the rights (notably regarding the recognition of parenthood). Moreover, the applicability of the protection recognised by the Court in the present case to same-sex marriages contracted outside the European Union remains uncertain (Tryfonidou, Bribosia and Rorive).

Choice of procedures for recognising marriages concluded in a host Member State

As a preliminary point, the Court notes that Member States retain the power to choose the procedures for recognizing marriages concluded in a host Member State and that the procedure of transcribing marriage certificates in the civil status register constitutes only one modality among others (paras 69-70).

However, to avoid diverging results between Member States and their national procedures, the Court sets up a series of requirements Member States have to respect. Firstly, whichever types of procedures they pick, they must not render “impossible or excessively difficult” the implementation of rights conferred by Article 21 TFEU. Secondly, the Court assesses the specific situation of Member States - such as Poland - where the transcription of the marriage certificate in the civil status register is the only way possible to legally recognize a marriage concluded in a host Member State. In these circumstances, given the absence of a recognition procedure equivalent to that granted to opposite-sex couples, the Court recognises the existence of discrimination based on sexual orientation, prohibited by Article 21, paragraph 1, of the Charter.

It follows from the above that when a Member State provides a single procedure for recognizing marriages concluded in another Member State, it must apply this modality indistinctly to marriages concluded between same-sex couples and those concluded between opposite-sex couples.

This approach, both protective and pragmatic, aligns - I believe, with the Court's recent case-law regarding the recognition of a person's gender identity. Similarly to the commented case, in the Deldits ruling, the Court prohibited unnecessary or disproportionate administrative practices for rectifying personal data relating to a person's gender identity in a public register, further adding that “a medical certificate - including a psychiatric diagnosis” might suffice (Deldits ruling, paras 47-49).

Prohibition of discrimination based on sexual orientation: a general principle of EU law with direct effect

What truly distinguishes the commented decision is the Court's interpretation of Article 21 of the Charter—dealing with the prohibition of any discrimination based notably on sexual orientation—to which the Court recognizes an imperative character as a general principle of EU law (para 70). Indeed, the existence of such a general principle has only been expressly recognized until now for discriminations on grounds of age (Mangold, Association de médiation sociale, Dansk Industri rulings) and religion (Egenberger, Cresco Investigation rulings).

The Court further specifies that Articles 20 and 21 TFEU and Articles 7 and 21 of the Charter “are sufficient in themselves and do not need to be made more specific by provisions of EU or national law to confer on individuals rights which they may rely on as such”. Therefore “if the referring court were to find that it is not possible to interpret its national law in conformity with EU law, it would be required to [disapply] the national provisions concerned” (para 76).

While the recognition that the prohibition of any discrimination based on sexual orientation constitutes a general principle of EU law is revolutionary— its practical effects are currently difficult to appreciate.

Conclusion

The present case undoubtedly constitutes a turning point in the protection of LGBTIQ+ individuals. The Court, embracing its recent and consolidated jurisprudence (Mousse, Deldits, Mirin) concerning the rights of non-binary and transgender individuals in the EU, further enshrines the principle that “lives, names, and ties should not unravel when crossing internal borders” (Escach-Dubourg).

It is worth mentioning, in this regard, that the Court has recently received a request for a preliminary ruling by a Romanian court similar to the present one. This request would open the door for the Court to clarify a series of unsolved questions regarding the cross-border mobility of same-sex couples. The case concerns the non-recognition of an Italian civil union by Romania for the purpose of granting a residence permit to a spouse from a third country.

Firstly, the preliminary ruling request concerns the recognition of a civil union rather than a same-sex marriage, allowing the Court to clarify whether the protective considerations highlighted within the present case also apply to this type of union. Moreover, the case will enable the Court to confirm if a same-sex couple can “strengthen” their union in a Member State without actually residing in it.

Finally, the Court's reasoning is particularly striking: it is grounded in the search for practical solutions to real, current administrative obstacles encountered by same-sex couples in several Member States. The Court favours transparent, direct solutions to avoid the possibility that same-sex couples live in the shadows and face relentless administrative hurdles due to its ruling’s lack of clarity. Such an approach is reminiscent of the landmark Minister voor Immigratie en Asiel v X and Y and Z 2013 ruling dealing with the conditions for granting refugee status. Asked whether homosexual third country nationals could be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution, the Court famously replied that: “requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it” (Minister voor Immigratie en Asiel v X and Y and Z ruling, para 70).

* [Patroclus to Achilles]: “A last request—grant it, please. Never bury my bones apart from yours, Achilles, let them lie together . . . just as we grew up together in your house. […] So now let a single urn, the gold two-handled urn your noble mother gave you, hold our bones-together!”

The Iliad, Book 23, lines 99-110

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