Rainbow families and their children will have the same rights across the EU
This time is not only about the effectiveness of the right of free movement. The EU top Court goes further, stating that same-sex parents and their children must be recognised as a family while exercising their right of free movement in all the 27 Member States of the European Union.
The Court of Justice of the European Union (CJEU) was asked by a Bulgarian court to assess whether a refusal to issue a birth certification, concerning a legally recognized child of a same-sex couple in another Member State, constitutes a breach of EU law. The case (“Pancharevo”, C-490/20) concerns a same-sex couple, the Bulgarian V.M.A. and her wife, who is a UK national. They live in Spain, where they got married and gave birth to their daughter (S.D.K.A.). Since Spain recognizes marriage and access to filiation for same-sex couples, the Spanish authorities issued a birth certificate which identifies both partners as the mothers of S.D.K.A.
V.M.A submitted a request for a birth certificate to the Bulgarian authorities. However, as Bulgaria only recognises man-woman parenthood, the request was rejected by the authorities, who invoked the protection of national identity. V.M.A. challenged the refusal before the Administrative Court of Sofia, which stayed the proceedings and issued a request for a preliminary ruling to the CJEU.
The preliminary questions referred to the CJEU concern whether such a refusal, which makes very difficult for this child to obtain a Bulgarian identity document, constitutes a breach of EU law. Notably, Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) on the EU citizens’ right to move and reside freely within the territory of the Member States, as well as Articles 7, 24 and 45 of the Charter of fundamental rights of the European Union (the Charter), on the respect for family life, the child’s best interests and the freedom of movement and residence.
It follows from a well-established CJEU case-law on the free movement of persons (see, in particular, Coman– C-673/16) that the refusal to provide a birth certificate, and thus an ID or passport, may alter the effectiveness of ‘moving and residing freely’ within the Union. Accordingly, the Court held that “the Bulgarian authorities are required to issue to her [S.D.K.A.] an identity card or a passport stating her nationality and her surname”.
As to the Charter’s provision, Article 7 enshrines the right to respect for private and family life. Article 24 (2) provides for the obligation to take into account the child’s best interests. In this respect, the CJEU rules that these provisions would be breached if S.D.K.A. was “deprived 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”.
Furthermore — and this is the revolutionary point — the CJEU held that “irrespective of their nationality and whether or not they themselves are Union citizens, K.D.K. and S.D.K.A. must be regarded by all Member States as being, respectively, the spouse and the direct descendant and, therefore, as being V.M.A.’s family members”. In other words, they must be considered a family everywhere within the territory of EU Member States, whether or not marriage and parenthood for persons of the same sex is permitted under their national law.
It should be noted that the CJEU’s conclusion does not constitute a legal obligation for the Member States to regulate the institution of same-sex marriage or access to filiation, which remain an exclusive national competence. However, Member States’ law in this field must not constitute an obstacle to the right of free movement.
It may be worth considering whether the CJEU’s ruling in this case could be interpreted as a ‘strong suggestion’ to the national legislative authorities in order to recognize the rights of same-sex parents. As mentioned, the Court focused on the notions of ‘family’ and ‘family members’, as well as ensuring the effectiveness of the right of free movement.
Almost a year ago, the Commission launched the ‘LGBTIQ+ Equality Strategy’, an action plan which aims to strengthen the protection of LGBTIQ+ rights across the EU. It is curious to observe that one of the key objectives of this strategy is exactly the mutual recognition of rainbow families across the whole EU. This judgment clearly constitutes a step forward in this context. It highlights, once again, how the interpretative role of the CJEU is able to booster the process of European integration. Has the time for a concrete ‘Union of equality’ finally arrived?
