CJEU - V.M.A., Case C-490/20

The case concerned the refusal of the Bulgarian authorities to issue a birth certificate for the daughter of VMA and her wife as it the Bulgarian birth certificate could only recognise two parents of different sexes. The Bulgarian Administrative Court of the city of Sofia referred four questions to the Court of Justice of the European Union, in relation to balancing the child’s rights under EU law and the Member States’ prerogative to pursue specific social policy in relation to parentage.

 

Date of decision
Court / UN Treaty Body
Court of Justice of the European Union
Language(s) the decision is available in
English
Applicant's country of residence
Spain
Relevant Legislative Provisions
  • Convention on the Rights of the Child
  • Treaty for the European Union art.4
  • Treaty for the Functioning of the European Union art. 20; art. 21
  • Charter of Fundamental Rights of the European Union, Arts. 7, 9, 24, 45
  • Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC arts. 2, 4, 5
  • Konstitutsia na Republika Bulgaria (Bulgarian Constitution) Art. 25
  • Zakon za balgarskoto grazhdanstvo (Law on Bulgarian nationality) Art. 8
  •  Semeen kodeks (Family Code) Art. 60
Facts

V.M.A. is a Bulgarian national and her partner, K.D.K. is a British national. The two women have been residing in Gibraltar since 2016 and have been married since 2018. In December 2019 their daughter was born. The daughter’s birth certificate was issued by the Spanish authorities and listed V.M.A. and K.D.K.  as the mother. In January 2020 V.M.A. applied to the Sofia municipality in Bulgaria for a Bulgarian birth certificate for her child which was required, inter alia, to obtain identity documents. The Sofia municipality requested information as to the child’s biological mother and father, information indispensable under Bulgarian law for the issuing of a birth certificate. At V.M. A.’s refusal to provide the information, the Bulgarian authorities rejected the request for the birth certificate and replied that same sex marriage was contrary to Bulgarian public policy.

V.M.A. appealed the decision at the Administrative Court of the City of Sofia (referring court). The Administrative Court of the City of Sofia then stayed the proceedings and referred several questions to the Court of Justice of the European Union.

Decision & Reasoning

The CJEU firstly noted the duty of Member States to have due regard for EU law when establishing their national rules relating to the acquisition of citizenship.

The referring court has accepted that the child has Bulgarian citizenship and under Art. 20(1) of the TFEU and is consequently a citizen of the European Union. The CJEU then, citing Coman and Others, C‑673/16, EU:C:2018:385, noted that as a result of the freedom of movement each citizen of a Member State, when residing in a Member State other than their state of origin, can exercise their rights pertaining to EU citizenship against their state of origin. The CJEU also observed that such principle would also apply to children who had never exercised their right to free movement (Bajratari, C‑93/18, EU:C:2019:809).

The CJEU then referred to Article 4(3) of the Directive 2004/38/EC, which requires Member States to issue its own citizens with passports and/or identity cards, in order to enable them to exercise their right to free movement under Art. 21(1) of the TFEU. Accordingly, the Bulgarian authorities were required to issue the child with a passport or identity card. This duty exists regardless of whether the Bulgarian authorities decided to issue the child with a national birth certificate. Consequently, the CJEU found that the authorities could not hide behind their own national legislation relating to birth certificates in order not to issue the child with an identity card.

Furthermore, the CJEU referred to the established right of every EU citizen to reside with their family in their Member State of origin or any other host Member State (Coman and Others, C‑673/16, EU:C:2018:385). Since both V.M.A. and K.D.K. were legally recognised by the Spanish authorities as parents of the child and they are her primary carers, then the relationship must be recognised by all Member States (Rendón Marín, C‑165/14, EU:C:2016:675). Consequently, the Bulgarian authorities were required by EU law to issue the child with an identity card in order to allow her to exercise her right to free movement with her parents.

The CJEU recognised that under Art.9 of the Charter defining marriage and parentage falls within the ambit of national law and the EU does not interfere with it. However, the exercise of such discretion must be in accordance with EU law.

The CJEU acknowledged that, under Art.4(2) of the TEU, EU institutions must respect the individual national identities of Member States, but the restriction of fundamental EU principles can only be justified if there is a genuinely and sufficiently serious threat to a fundamental interest of society (Coman and Others, C‑673/16, EU:C:2018:385). The obligation to recognise the Spanish birth certificate, which indicates the child’s parents to be two individuals of the same sex hardly constitutes, a significant enough threat to social policy. The obligation does not include the duty to recognise same-sex parents in the domestic legislation or to recognise the parent-child relationship in this specific case in any way which exceeds what is required to allow the child to exercise their EU rights. Such principle is in accordance with Art. 24 of the Charter which instructs authorities to make the best interests of the child a primary consideration.

The CJEU also considered that the right to private life under the European Convention of Human Rights and has noted that under Strasbourg jurisprudence the genuine family life the child leads with her parents is protected under Art. 8 of the Convention (K. and T. v. Finland, CE:ECHR:2001:0712JUD 002570294). Similarly, the child’s family with her two parents is protected by Art. 7 of the Charter. Such provision is to be read in conjunction with Art. 24 on the best interests of the child and Art.2 on the prohibition of discrimination. Therefore, under the Charter a child needs to obtain immediate registration and identity documents without any discrimination as to the sex of the parents.

K.D.K.’s British citizenship and the context of Brexit was found to be irrelevant to the present questions.

Lastly, even if the child did not have Bulgarian nationality, she would still enjoy EU rights as the direct descendant of an EU citizen. K.D.K. should enjoy the same rights as V.M.A.’s spouse. Additionally, as the child is a minor whose nationality is not well established and whose birth certificate designates an EU citizen as one of her parents, such relationship needs to be respected by all Member States, in accordance with Directive 2004/38.

Outcome

The CJEU held that under EU law, the Bulgarian authorities were under the obligation to provide the child with a birth certificate and identity documents.

 

Caselaw cited

Rottmann, C‑135/08, EU:C:2010:104

Tjebbes and Others, C‑221/17, EU:C:2019:189

Grzelczyk, C‑184/99, EU:C:2001:458

A (Public health care), C‑535/19, EU:C:2021:595

Coman and Others, C‑673/16, EU:C:2018:385

Bajratari, C‑93/18, EU:C:2019:809

K. and T. v. Finland, CE:ECHR:2001:0712JUD 002570294