The case concerns the refusal by the Head of the Civil Registry Office of Kraków (Poland) to transcribe into the Polish register of civil status the birth certificate of the daughter of K.S. and her wife S.V.D., issued by Spanish authorities. This lack of registration hindered the issuance of a passport, which impacted the child’s freedom of movement.
The Court interpreted Articles 20 and 21 of the TFEU, to mean that the Member State of which a child of a same-sex couple is a national (i) is obliged to issue to that child an identity card or a passport without requiring the prior transcription of a birth certificate of that child into the national register of civil status, and (ii) is obliged to recognise the document from another Member State that permits the child to exercise, without impediment, the right to move and reside freely within the territory of the Member States.
- Treaty on the Functioning of the European Union ('TFEU'), Article 20(2)(a) and Article 21(1)
- Charter of Fundamental Rights of the European Union ('Charter'), Article 7, Article 21(1) and Article 24(2)
- United Nations Convention on the Rights of the Child, Article 2, Article 7
- Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004
- Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland), Article 18
- ustawa – Prawo prywatne międzynarodowe (Law on Private International Law) of 4 February 201, Article 7
- ustawa – Prawo o aktach stanu cywilnego (Law on Civil Status Records) of 28 November 2014, Article 104(5), Article 107
In 2018, a child named S.R.S.-D. was born in Spain. Her birth was registered by the Spanish civil registry office on the basis of a joint statement made by the birth mother of the child, K.S. (a Polish national), and her wife S.V.D. (an Irish national). The birth certificate designates K.S. and S.V.D. as ‘Mother A’ and ‘Mother B’, respectively.
They applied for the birth certificate issued by the Spanish authorities for the child, who is of Polish nationality, to be transcribed into the Polish register of civil status. That application was refused on the basis that it was contrary to the fundamental principles of the legal order in Poland.
K.S. sent a request for assistance to the Commissioner for Human Rights in Poland, stating that her daughter had no identity document, as the application for a Polish passport had been refused on the ground that the birth certificate had not been transcribed into the Polish register of civil status. The Irish authorities were unable to issue an identity card or passport, as the child was not of Irish nationality.
The Commissioner for Human Rights brought an action on behalf of K.S. and S.V.D. before the referring court, against the decision refusing to transcribe the birth certificate issued by the Spanish authorities into the Polish register of civil status. During the proceedings, the administrative authority of first instance refused an application for an identity card for S.R.S.-D., on the ground that under Polish law, a child may only have a woman and a man as parents.
The referring court found, inter alia, that the provisions currently applicable do not guarantee the right to freedom of movement of a child such as S.R.S.-D. born to same-sex parents, on account of inability to issue a passport. It stated that, were it to be found that the refusal to transcribe the birth certificate of such a child infringes the provisions of the TFEU and the Charter, it would be in a position to order the Polish authorities to transcribe that birth certificate word for word, which would then make it possible to issue an identity document.
The Regional Administrative Court of Krakow decided to stay the proceedings and refer the matter to the CJEU. The question referred to the CJEU asked whether Articles 20(2)(a) and 21(1) TFEU, read in conjunction with Article 7, 21(1) and 24(2) of the Charter, must be interpreted to mean that, in the case of a minor child who is a citizen of the Union and whose birth certificate issued by a Member State identifies a same sex couple as the child’s parents, the Member State of which that child is a national is obliged to transcribe such a birth certificate, in order to enable the child to obtain an identity document.
It is argued, inter alia, that under Article 21(1) TFEU, every citizen of the Union has the right to move and reside freely within the territory of the Member States, subject to certain limitations. In order to enable nationals to exercise that right, Article 4(3) of the Citizen’s Rights Directive requires Member States to issue to their own nationals an identity card or a passport stating their nationality. As S.R.S.-D. was a Polish national, it was argued that the Polish authorities were required to issue to her an identity card or a passport reflecting her nationality and surname as registered in her birth certificate (Para 37-38).
The respondent argued, inter alia, that transcription of the birth certificate would be contrary to the fundamental principles of the legal order of the Republic of Poland. It was also argued that under Polish law, a child may only have a man and a woman recognised as parents (Para 18, 21).
The CJEU first noted, in light of its previous case law, that Article 21(1) TFEU guarantees every citizen of the Union the right to move and reside freely within the territory of the Member States (Para 35-37).
Accordingly, since S.R.S.-D. is a Polish national, the CJEU noted that the Polish authorities are required to issue an identity card or passport stating her nationality and surname as they appear on the birth certificate drawn up by the Spanish authorities. Article 4(3) of the Citizen’s Rights Directive also requires the Polish authorities to issue an identity card or a passport regardless of whether the Spanish birth certificate was transcribed into the Polish register of civil status. Therefore, a Member State cannot rely on its national law as justification for refusing to draw up those documents for S.R.S.-D (Para 38-39).
Such a document must enable a child in S.R.S.-D’s situation to exercise the right to move and reside freely within the territory of the Member States, guaranteed in Article 21(1) TFEU, with each of her mothers. The CJEU also observed that while Member States should issue identity documents that ensure the freedom of movement of the child with her parents, there was no need for Polish national law to provide for parenthood of persons of the same sex, or recogni.e for purposes other than the exercise of the rights the child derives from EU law, the parent-child relationship between the child and the persons mentioned in the birth certificate (Para 40, 45).
In this situation however, the CJEU noted that the child’s right to respect for private and family life (Article 7, Charter), and the right to have her best interests taken into account (Article 24, Charter), were relevant considerations. Accordingly, the child’s relationship with the parents recognised in the birth certificate was protected. The CJEU further clarified that a national measure that is liable to obstruct the right to freedom of movement may only be justified where that measure is consistent with the fundamental rights guaranteed by the Charter (Para 46-48).
The CJEU also referred to Article 2 and Article 7 of the United Nations Convention on the Rights of the Child as including the right to be registered immediately after birth, the right to nationality, and non-discrimination on the basis of parents’ sexual orientation. Consequently, the CJEU observed that it would be contrary to the rights guaranteed under the Charter for the child to be deprived of her relationship with one of her parents, when exercising her right to move and reside freely within Member States.
Pursuant to the relevant provisions of the TFEU, the Charter and various European Parliament Directives, the CJEU found that in the case of a minor child of same sex parents designated on a birth certificate issued by a Member State, the Member State of which that child is a national is (i) obliged to issue an identity card or passport without requiring transcription of the birth certificate into a national register of civil status, and (ii) is obliged to recognise such documents from other Member States, which allow the child to exercise their right to move and reside freely within the Member States.