Bulgarian authorities refused to issue a birth certificate to the daughter of a Bulgarian mother and a British mother, who was born in Spain and issued a Spanish birth certificate with the names of both mothers, on the basis that it could only recognise parents of different genders. The Court found that where a birth certificate issued in another Member State designates parents of the same sex, the Member State of which the child is a national is required to issue an identity card or a passport to the child, without requiring a birth certificate to be drawn up beforehand by its national authorities. It also held that the Bulgarian authorities, and any other Member State, must recognise the parent-child relationship as established by the Spanish authorities for the purposes of permitting the exercise of the child’s right to move and reside freely within the EU, and any documents that would allow such travel.
- 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
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.
The referring court argued that notwithstanding the lack of birth certificate, the girl had Bulgarian nationality under Article 25(1) of the Bulgarian Constitution and Article 8 of the Law on Bulgarian nationality. The referring court raised its doubts as to whether the refusal of the Bulgarian authorities to issue the child with a birth certificate, and subsequent impossibility to obtain an identity document, may interfere with the child’s enjoyment of Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter.
The referring court also doubts whether K.D.K.’s British nationality and the withdrawal of the United Kingdom from the European Union may interfere with the outcome.
The referring court queries whether allowing two same-sex parents to be registered on a child’s birth certificate despite the importance and well-established nature of the traditional heterosexual family within the Bulgarian constitution and legal tradition would adversely affect public policy.
The referring court proposes, in order to strike a balance between the Bulgarian identity and the child’s right to private life and free movement, to only accept the inclusion of one of the mothers on the birth certificate. This would be either the biological mother or the mother who had become legal parent by way of adoption.
The referring court stayed proceeding and referred four questions to the CJEU:
- If it is permissible under Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the Charter for the Bulgarian authorities to refuse to issue a birth certificate given the women’s refusal to indicate which one is the biological mother.
- The extent to which Article 4(2) TEU and Article 9 of the Charter allow states to issue specific rules in relation to parentage.
- The effect of the UK’s withdrawal from the EU, given that a refusal from the Bulgarian authorities to issue the child with a birth certificate would impede her to enjoy EU citizenship
- If the first question is answered in the positive, the referring court asks whether EU law would oblige Member States to depart from its model birth certificate on a national level.
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.
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.
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