Rainbow households and the suitable to freedom of motion – the V.М.А.v Stolichna obshtina, rayon ‘Pancharevo’ case

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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
, C490/20 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 C673/16 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 

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