Functional recognition of same-sex parenthood for the benefit of mobile Union citizens – Brief comments on the CJEU’s Pancharevo judgment (J. Meeusen – ECJ, 14 December 2021, C-490/20)

Johan Meeusen
University of Antwerp, Belgium; www.uantwerpen.be/johan-meeusen

Introduction

The judgment of the Court of Justice of the European Union (CJEU) in the Pancharevo case (CJEU 14 December 2021, V.M.A./Stolichna obshtina, rayon ‘Pancharevo’, C-490/20, ECLI:EU:C:2021:1008) was eagerly awaited. A few years ago, in Coman (judgment of 5 June 2018, C-673/16, ECLI:EU:C:2018:385), the Court had obliged Romania on the basis of Article 21(1) TFEU to recognise, solely for residence purposes, the same-sex marriage that its national Coman and his American partner Hamilton had contracted in Belgium. In Pancharevo, the Court was confronted with the – perhaps even more sensitive – issue of same-sex parenthood, again in the context of the mobility rights that Union citizens derive from Article 21(1) TFEU, interpreted in the light of fundamental rights on the one hand, and considerations of national identity and public policy of the Member State concerned on the other.

Facts

V.M.A. is a Bulgarian national and K.D.K. is a United Kingdom national. Both women have lived in Spain since 2015 and were married in Gibraltar in 2018. In December 2019, V.M.A. and K.D.K. had a daughter, S.D.K.A., who was born and resides with both parents in Spain. Her birth certificate, issued by the Spanish authorities, refers to V.M.A. as ‘Mother A’ and to K.D.K. as ‘Mother’ of the child. V.М.А. applied to the Sofia municipality for a birth certificate for S.D.K.A. to be issued to her, the certificate being necessary, inter alia, for the issue of a Bulgarian identity document. However, the Sofia municipality instructed V.M.A. to provide evidence of the parentage of S.D.K.A., with respect to the identity of her biological mother, as the Bulgarian model birth certificate has only one box for the ‘mother’ and another for the ‘father’, and only one name may appear in each box. After V.М.А. replied that she was not required to provide the information requested, the Sofia municipality refused the application for a birth certificate. The reasons given for that refusal decision were: the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to the public policy of the Republic of Bulgaria, which does not permit marriage between two persons of the same sex.

V.M.A. brought an action against that refusal decision before the Administrativen sad Sofia-grad (the Administrative Court of the City of Sofia, Bulgaria). That court states that, notwithstanding the fact that S.D.K.A. does not have a birth certificate issued by the Bulgarian authorities, she has the Bulgarian nationality under Bulgarian law. The court has doubts, however, as to whether the refusal by the Bulgarian authorities to register the birth of a Bulgarian national, which occurred in another Member State and has been attested by a birth certificate that mentions two mothers and was issued by the competent authorities of the latter Member State, infringes the rights conferred on such a national in the Treaty provisions on Union citizenship and the Charter of Fundamental Rights of the European Union (hereinafter: the Charter). The Bulgarian authorities’ refusal to issue a birth certificate is, after all, liable to make it more difficult for a Bulgarian identity document to be issued and, therefore, to hinder that child’s exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen. The Bulgarian court therefore refers four questions to the Court of Justice for a preliminary ruling. These questions seek to ascertain whether EU law obliges a Member State to issue a birth certificate – in order for an identity document to be obtained according to the legislation of that State – for a child, a national of that Member State, whose birth in another Member State is attested by a birth certificate that has been drawn up by the authorities of that other Member State in accordance with the national law of that other State, and which designates, as the mothers of that child, a national of the first of those Member States and her wife, without specifying which of the two women gave birth to that child. If the answer is in the affirmative, the referring court asks whether EU law requires such a certificate to state, in the same way as the certificate drawn up by the authorities of the Member State in which the child was born, the names of those two women in their capacity as mothers.

Judgment

The Court answers the questions referred for a preliminary ruling in a fairly short judgment which, in line with and with frequent reference to its earlier Coman judgment, is characterised by a functional approach designed to ensure that the Union citizens concerned can exercise their rights of free movement without requiring Bulgaria to recognise same-sex parenthood for wider purposes, let alone to incorporate it into its legislation, or to issue a birth certificate to that effect itself.

On basis of the findings of the referring court, which it says alone has jurisdiction in that regard, the Court considers that S.D.K.A. has Bulgarian nationality and hence is a Union citizen. It confirms that a Union citizen who has made use of his or her freedom to move and reside within a Member State other than his or her Member State of origin may rely on the rights pertaining to that status, including against his or her Member State of origin. This also applies to Union citizens who were born in the host Member State of their parents and who have never made use of their right to freedom of movement. Relevant in this regard is the right to move and reside provided for in Article 21(1) TFEU and Article 4(3) of Citizens’ Rights Directive 2004/38, which requires Member States to issue to their own nationals an identity card or passport stating their nationality in order to enable them to exercise this right. The Bulgarian authorities are therefore required to issue to S.D.K.A. an identity document, regardless of whether a Bulgarian birth certificate has been drawn up for her.

Next, the Court recalls its consideration in Coman that the rights which Union citizens enjoy under Article 21(1) TFEU include the right to lead a normal family life, together with their family members, both in their host Member State and in the Member State of which they are nationals when they return to the territory of that Member State. In more concrete terms, since the Spanish authorities lawfully established that there was a parent-child relationship, biological or legal, between S.D.K.A. and her two parents, V.M.A. and K.D.K., the latter must, therefore, be recognised by all Member States as having the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised. Accordingly, the Bulgarian authorities are required, as are the authorities of any other Member State, to recognise that parent-child relationship for the purposes of permitting S.D.K.A. to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU. To that end, V.M.A. and K.D.K. must have a document which mentions them as being persons entitled to travel with that child. In this case, the authorities of the host Member State, Spain, are best placed to draw up such a document, which may consist in a birth certificate. The other Member States are obliged to recognise that document.

According to the Court, that does not detract from the competence of the Member States with regard to a person’s status. After all, it is established case law that each Member State must comply with EU law when exercising its competence. In addition, the obligation to issue an identity card or a passport to S.D.K.A. and to recognise the parent-child relationship between her and her two mothers does not undermine the national identity or pose a threat to the public policy of Bulgaria, since it does not require Bulgaria to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which S.D.K.A. derives from EU law, the parent-child relationship between herself and the persons mentioned on the birth certificate drawn up by the Spanish authorities.

Referring to the interpretation by the European Court of Human Rights of Article 8 of the ECHR and to the relevant provisions of the Convention on the Rights of the Child, the Court considers lastly that it would be contrary to Articles 7 and 24 of the Charter to deprive S.D.K.A. of the relationship with one of her parents when exercising her right to move and reside freely within the territory of the Member States or for her exercise of that right to be made impossible or excessively difficult in practice on the ground that her parents are of the same sex.

In the final paragraphs of the judgment, the Court examines the hypothesis that S.D.K.A. is not of Bulgarian nationality and sees in this no reason to rule otherwise. K.D.K. and S.D.K.A., irrespective of their nationality, must be regarded by all the Member States as being, respectively, the spouse and the direct descendant within the meaning of Article 2(2)(a) and (c) of Directive 2004/38 and, therefore, as being V.M.A.’s family members. They are thus ‘beneficiaries’ within the meaning of the Citizens’ Rights Directive (cf. Art.3(1)) with the derived right of free movement and residence attached to that status.

In the light of the foregoing, the Court rules that the provisions of EU law under examination must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State (in this case, Spain), designates as that child’s parents two persons of the same sex, the Member State of which that child is a national (in this case, Bulgaria) is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

Comments

In Pancharevo, the Court guarantees the freedom of movement and the fundamental rights of Union citizens in a way that, on the one hand, accommodates their personal and family interests and, on the other hand, respects both the competence of the Member States regarding the status of the person and the societal sensitivities – in this case, Bulgarian – involved. The judgment is remarkable for several reasons.

Firstly, this case provides an excellent illustration of the conflict between the claims of mobile Union citizens, who do not want to be restricted in their cross-border activities, and the different values and legislation of the Member States. Pancharevo is the logical next step after Coman and shows once more that the status and family law of the Member States, at least as regards its choice-of-law aspects, can no longer be seen as separate from the impact of EU law.

Secondly, the Court ensures continuity with its ruling in Coman. In the latter ruling, the Court did not oblige Romania in any way to introduce same-sex marriage or to give general recognition to the same-sex marriage contracted by a Romanian or a Union citizen in another Member State. On the contrary, the Court stressed several times that it was only a question of recognition ‘solely for the purpose of granting a derived right of residence to a third-country national’ (in that case, the American spouse of the Romanian Coman). The Court continues this strictly functional approach in Pancharevo. As such, the Court explicitly states that, since EU law does not affect the competence of the Member States regarding the status of persons, ‘the Member States are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law’ (paragraph 52). Furthermore, the Court’s interpretation of the obligation of Member States to recognise the civil status of persons established in another Member State systematically relates to the right to freedom of movement and, precisely for that reason, does not pose a threat to the public policy or the national identity of Bulgaria: it is merely a question of recognising the filiation of the child ‘in the context of the child’s exercise of her rights under Article 21 TFEU and secondary legislation relating thereto’ (paragraph 56). Hence, as the Court adds, that does not mean that Bulgaria is required ‘to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents’ (paragraph 57).

Thirdly, it is also noteworthy that, in paragraph 57, the Court does not refer (solely) to the right of the Union citizen to move and reside freely, but more widely to ‘the exercise of the rights which that child derives from EU law’. The Court, which used similar wording in Coman, does not elaborate on this, and the question therefore remains to what extent the aforementioned ‘functional’ approach will remain tenable in the future. Will it really be possible for Romania, in the wake of Coman, to limit the effects of the recognition of the marriage to the residence status of Coman’s American husband Hamilton? Will this couple not want to (and be allowed to?) invoke their marriage status, which is recognised for the purposes of residence, for other legal purposes in Romania as well – tax, filiation, relational aspects of property, inheritance law, etc. – on the grounds that a refusal to do so also infringes the right to freedom of movement and residence and/or the right to private and family life guaranteed by the Charter? And can the same happen in the aftermath of Pancharevo, where, moreover, the rights of the child, protected by Article 24 of the Charter, are at stake? Will the impact of EU law on the recognition of parentage effectively be limited to the provision of an identity document and the recognition of the foreign birth certificate for the purpose of exercising the right to freedom of movement? In fact, even before Pancharevo, the Commission had already planned a legislative initiative in 2022, based on Article 81(3) TFEU, aimed at the mutual recognition of parenthood between Member States in accordance with the motto stated by Commission President von der Leyen in her ‘State of the Union’ of 16 September 2020: ‘If you are parent in one country, you are parent in every country’.

Fourthly, it is noteworthy that the Court briefly discusses the situation where, if checks so should reveal, it would appear that S.D.K.A. does not have Bulgarian nationality. In this case, it relies on V.M.A.’s Bulgarian nationality and categorizes her partner K.D.K. and daughter S.D.K.A. as, respectively, spouse and direct descendant within the meaning of Article 2(2)(a) and (c) of the Citizens’ Rights Directive 2004/38. The latter are then ‘beneficiaries’ within the meaning of the Directive and enjoy derived rights of movement and residence. The Court adds to this that ‘a child, being a minor, whose status as a Union citizen is not established and whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto’ (paragraph 68). In this respect, the Court follows the line taken in Coman, which combined recognition of the competence of the Member States in relation to personal status with a (partially) autonomous interpretation of the concept of ‘spouse’ used in Article 2(2)(a) of Directive 2004/38, in the sense that it refers to a person who is a person joined to another person by the bonds of marriage regardless of their sex. Pancharevo also recognises, on the one hand, the substantive competence of the Member States, but, on the other, gives a specific Union law interpretation to the concept of ‘direct descendant’ used in the same directive: the relationship referred to in Article 2(2)(c) of the directive is not necessarily based on a biological relationship. Thus, if parentage has been validly established in an official birth certificate of a Member State, more traditional conceptions of biological kinship between parent and child in the host Member State cannot preclude the status of the latter as ‘direct descendant’. On this last point, the Court follows the path it had already set in SM (judgment of 26 March 2019, C-129/18, ECLI:EU:C:2019:248).

Last but not least, Pancharevo will undoubtedly stimulate the debate among conflicts scholars on the precise significance of the so-called ‘recognition method’ as an alternative choice-of-law method. As was the case with Coman as well, the Court in Pancharevo interprets EU law but its judgment profoundly impacts the recognition of personal status from the perspective of conflict of laws as well. While the Court’s approach is characterized by a functional, hence cautious approach, an essential question is whether this restraint is really tenable, given the far-reaching impact of both EU free movement and fundamental rights law… The significance of Pancharevo for EU conflict of laws in particular will be further examined by GEDIP. The group currently discusses a European codification of the general part of private international law, working inter alia in that context on the recognition of situations validly established abroad. The sub-group which examines the latter issue obviously will take into account the CJEU’s judgment in Pancharevo when preparing its report for the next GEDIP meeting, scheduled to take place in Oslo in September.

Conclusion

With its purposive interpretation of Union citizenship, invariably described as ‘destined to be the fundamental status of nationals of the Member States’, the Court of Justice ensures the mobility of Union citizens. In a diverse European Union based on the protection of fundamental rights, in which the personal status of the individual still is a competence of the Member States, this implies openness to diversity. With its balanced and well-founded Pancharevo judgment, in which the functional recognition of the parentage relationship and the broad interpretation of the concept of ‘direct descendant’ stand out, the Court ensures both the effectiveness of the rights of Union citizens, including the protection of fundamental rights, and respect for the competence and national identity of the Member States. Nevertheless, it is clear that with its judgments in Coman, SM and now Pancharevo, the CJEU has embarked on a progressive path, with openness to diversity and new family forms, for the benefit of mobile Union citizens.