Introduction

On Tuesday, the 14th of December 2021, the Court of Justice of the European Union (the Court) delivered a landmark decision clarifying to all European countries that if one country acknowledges a parental relationship with a child, then every member state must do the same in order to guarantee the child’s right to free movement, regardless of the sexuality of the child’s parents (Pitchers 2021). The decision comes as many European countries, such as Poland and Hungary, have slowly regressed on the rights of LGBTQ+ people in 2021.

Facts of the Case

Case C-490/20, V.M.A. v. Stolichna Obsthina, Rayon Pancharevo (Sofia municipality, Pancharevo district) the Court after Bulgarian authorities refused to give a birth certificate to the new-born daughter of a same-sex couple. Sara was born in Spain in 2019 to Bulgarian national Kalina Ivanova and Gibraltar-born Jane Jones. Spanish authorities had issued a birth certificate to Sara, however under Spanish citizenship laws, Sara was not entitled to Spanish citizenship because neither of her mothers were Spanish (The Spanish Constitution, 1978, Article 11). The United Kingdom also refused to give the child citizenship because, under the British Nationality Act of 1981, citizenship cannot be transferred to the children of Gibraltar-born parents (The British Nationality Act, 1981). As a result, Sara’s fundamental rights, such as access to healthcare and education were severely compromised and the child was at risk of statelessness (DeGroot, 2021). 

In order to obtain citizenship in the EU, Ivanova then requested Bulgarian citizenship for her daughter. The Bulgarian authorities requested evidence of who the biological mother of the child was. Following her decision not to provide the information requested, the Bulgarian authorities refused the application on two grounds: (1) the lack of information concerning the identity of the child’s biological mother and (2) the fact that a reference to two female parents on a birth certificate was contrary to the public policy of Bulgaria (Garrison, 2021). Same-sex marriages registered outside Bulgaria are not recognised within the country, and same-sex marriage has been banned under Bulgarian law since 1991 (Constitution of the Republic of Bulgaria, Article 47). 

Judgment

The case was brought to the Court and on 14 December 2021, the Court confirmed that since one of Sara’s Mothers is Bulgarian, the child has Bulgarian nationality by birth and is thus a citizen of the European Union (Case C-490/20 V.M.A. v. Stolichna obshtina, rayon ‘Pancharevo’, para 39). Due to this, the Court decided that as per Article 4(3) of Directive 2004/38, the Bulgarian authorities are required to issue an identity card or passport to the child (ibid, para 44). 

Regarding the recognition of same-sex parents, the Court explicitly stated for the first time that “the rights which nationals of Member States 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” (ibid, para 47). It explained that the Spanish authorities lawfully established that there was a parent-child relationship between the child and her two parents through the issuance of the birth certificate (ibid para 48). As a result of this, “V.M.A. and K.D.K. must, therefore, pursuant to Article 21 TFEU and Directive 2004/38, as parents of a Union citizen who is a minor and of whom they are the primary carers, 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.” A refusal of this right can amount to an obstacle to exercising the right to free movement under Article 21 TFEU (ibid, para 48).

Following this, the Court then considered whether the Bulgarian authorities could justify their refusal to issue a birth certificate and an identity document on the grounds that it was protecting Bulgarian ‘national identity’. The Court noted that Bulgaria’s obligation to issue an identity document to a child with same-sex parents “does not undermine the national identity or pose a threat to the public policy of that Member State” (ibid, para 56). This is because “such an obligation does not require the Member State 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 child’s rights” (ibid, para 57). Upon the decision being delivered, Kalina Ivanova and Jane Jones stated: “We are thrilled about the decision and cannot wait to get Sara her documentation and finally be able to see our families after more than two years. It is important for us to be a family, not only in Spain but in any country in Europe and finally it might happen. This is a long-awaited step ahead for us but also a huge step for all LGBT families in Bulgaria and Europe” (ILGAEurope, 2021).

Impact

The decision of the Court is an extremely positive step in the recognition of same-sex partners and their children as a family in Europe. The ruling established that the principle of mutual recognition applies to birth certificates issued by EU Member States, creating a more unified approach to the rights of LGBTQ+ families under European jurisprudence. Not only does this impact LGBTQ+ families in Europe, but also solidifies to all EU Member States that families in general can, under no circumstances, be separated when they cross an EU border. The judgment also speaks to the resolution on the rights of LGBTQ+ persons in the EU adopted in September 2021 by the European Parliament, which stated that LGBTQ+ citizens should be able to fully exercise their rights, including the right to free movement, everywhere in the Union (Ojamo, 2021). In addition to this, the recent judgement also reiterates the Court’s decision delivered on 5 June 2018, against Romania, recognising the term spouse as including same-sex spouses under EU freedom of movement laws (Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, C-673/16, 2018). The V.M.A ruling reiterated the legitimacy of same-sex partners under the the right to free movement, especially when a child is involved. In a statement, Arpi Avetisyan, Head of Litigation with LGBTQIA rights organisation ILGA Europe, said “We are very pleased with CJEU’s judgment this morning. It gave legal endorsement to the EC President Ursula von der Leyen DL’s words, delivered during last year’s State of the Union address: ‘If you are a  parent in one country, you are parent in every country’. The judgment has brought long-awaited clarification that parenthood established in one EU  Member State cannot be discarded by another, under the pretense of  protecting the ‘national identity.’ This is a true testament to the EU being a union of equality and we look forward to seeing rainbow families enjoying their right to freedom of  movement and other fundamental rights on equal footing to anyone else.” (Garrison, 2021).

Sources and Further Reading: 

Legislation

The British Nationality Act 1981. (1981, October 30).

The Constitution of the Republic of Bulgaria. (1991, July 13).

The Spanish Constitution: Fundamental Laws of the State. (1972). Ministerio de Informacion y Turismo.

Reports

DeGroot, D. (January 2021) SPECIAL REPORT: EU law and the mutual recognition of parenthood between Member States: the case of V.M.A. v Stolichna Obsthina. European University Institute. Available at: https://cadmus.eui.eu/bitstream/handle/1814/69731/RSCAS_GLOBALCIT_SR_2021_1.pdf?sequence=1&isAllowed=y Accessed 24/01/2022

Ojamo, J. (September 2021) Same-sex marriages and partnerships should be recognised across the EU. European Parliament. Available at: https://www.europarl.europa.eu/news/en/press-room/20210910IPR11913/same-sex-marriages-and-partnerships-should-be-recognised-across-the-eu Accessed 24/01/2022

Cases

CJEU Case C-490/20, V.M.A. v. Stolichna Obsthina, Rayon Pancharevo (Sofia municipality, Pancharevo district) Available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=202542&doclang=EN Accessed 24/01/2022

CJEU Case C-673/16, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, Available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130da03d186e3b70849dfb5b99fbc0f5bdce1.e34KaxiLc3eQc40LaxqMbN4Pb3iPe0?text=&docid=202542&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=317853  Accessed 24/01/2022

Articles

Garrison, M. (2021, December 23). EU Court rules member nations must recognise same sex parents and their children. Starobserver. Available at: https://www.starobserver.com.au/news/eu-court-rules-member-nations-must-recognise-same-sex-parents-and-their-children/208107 Accessed 25/01/2022

ILGAEurope (2021, December 14) Top EU Court Recognises Relationship of Same-sex Parents and their Children Under EU Law. ILGAEurope. Available at: https://www.ilga-europe.org/resources/news/latest-news/top-eu-court-recognises-relationship-same-sex-parents-and-their-children Accessed 25/01/2022

ILGAEurope (2021, June 11) Freedom of movement for same-sex spouses: The Coman Case, 3 years on. ILGAEurope. Available at: https://www.ilga-europe.org/blog/freedom-movement-same-sex-spouses-coman-case-3-years Accessed 25/01/2022

Pitchers, C. (2021, December 14) Same-sex parents and their children must be recognised as a family across whole EU, rules court. Euronews. Available at: https://www.euronews.com/2021/12/14/same-sex-parents-and-their-children-must-be-recognised-as-a-family-across-whole-eu-rules-c Accessed 25/01/2022