Case law Developments in PIL

AG Kokott on C-490/20, V.M.A. v Stolichna Obshtina, Rayon ‘Pancharevo’

Advocate General Kokott’s Opinion in Case C-490/20 V.M.A. v Stolichna Obshtina, Rayon ‘Pancharevo’ was published on 15 April 2021 (the issues raised by this case have been discussed earlier on this blog by Nadia Rusinova: see here). So far, the text of the Opinion is available only in Bulgarian and French.

This post provides a summary in English of the facts and the main reasoning supporting the proposal to the CJEU (NoA: the narrative relating to Article 2 TUE, present in paras. 116 to 132, has not direct reflection in the final proposal; I skip it too).

Facts and Questions

The dispute concerns a married couple consisting of two women, one of whom, V.M.A., is a Bulgarian national, while the other is a national of the United Kingdom. They got married in 2018 in Gibraltar, where same-sex marriage is possible since December 2016, and had a child in Spain. They reside in the same country. The birth was registered according to Spanish Law (Ley del Registro Civil: inscribable facts and acts that affect Spaniards, and those referring to foreigners which occurred in Spanish territory, are recorded in the Civil Registry)., and a birth certificate was issued by the Spanish authorities designating both women as ‘mother’ of the child.

On the basis of the Spanish document V.M.A. applied to the competent Bulgarian authority to issue a birth certificate for her daughter. Such a certificate is, in turn, necessary for obtaining a Bulgarian identity document.

Bulgarian law does not allow marriage or any other form of union with legal effects between persons of the same sex. Parentage is determined by birth; the mother of the child is the woman who gave birth to it (also in the case of assisted reproduction). When the filiation of a child with regard to one of his parents is unknown, any parent can recognize the child. In the event of registration of a birth occurring abroad the information relating to the name of the child, the date and place of birth, the sex and the established filiation are entered in the birth certificate as they appear in the copy or in the Bulgarian translation of the foreign document produced. Should filiation concerning a parent (mother or father) not be established in the foreign document, the field intended for data relating to this parent in the birth certificate in the Republic of Bulgaria will not completed and shall be crossed out.

The municipality of Sofia (Bulgaria) requested V.M.A. to indicate which of the two spouses is the biological mother, stating that the model Bulgarian birth certificate provides only one box for the ‘mother’ and another for the ‘father’, and that each of those boxes may include only one name. Following V.M.A.’s refusal to supply the requested information, the authority rejected her application, arguing the absence of information concerning the biological mother and the fact that the registration of two female parents in a birth certificate is contrary to the public policy of Bulgaria.

V.M.A. brought an action against that decision before the Administrative Court of the City of Sofia, which referred to the CJEU the following questions:

Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the EU was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?

Must Article 4(2) TEU and Article 9 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:

–    Must Art. 4(2) TEU be interpreted as allowing Member State to request information on the biological parentage of the child?

–    Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?

Is the answer to Question 1 affected by the legal consequences of Brexit in that one of the mothers listed on the birth certificate issued in another Member State is a UK national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as an EU citizen?

If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate which forms part of the applicable national law?

Relevant EU law

In addition to the provisions mentioned in the request, Articles 2 and 4 of 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 must be taken into account:

Article 2, Definitions – For the purposes of this Directive: (1) “Union citizen” means any person having the nationality of a Member State; (2) “Family member” means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); […]

Article 4, Right of exit – 1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State. […] 3. Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality. […]

Analysis

Although the Opinion is presented in a very pedagogical way, to ease its understanding it should be explained that the reasoning is based: (a) on the different nature and effects of a certificate of birth of a child and a document stating his personal identity; (b) and on the premise that a person may be a parent (and a child born to a parent) or not, depending on whether such condition is considered for the purposes of family and successions law, or for the purposes of Union law.

AG Kokott carries out her analysis distinguishing two hypothesis: under the first one, the child is not a European citizen; her arguments revolve around the rights conferred to the Bulgarian mother by the legal order of the Union. Under the second hypothesis, the child is a EU citizen; the focus is on her rights. The reason for the separates approaches is that, according to the referring court, the child is a Bulgarian national; however, the assertion was contested by the Bulgarian Government during the hearing, given that Bulgarian nationality is acquired automatically by any person who has at least one Bulgarian parent, and in the present case the identity of the biological mother is not known.

i) The child is not a EU citizen

In the event that the child does not have Bulgarian nationality, she does not enjoy the rights deriving from Article 4 (3) of Directive 2004/38, and from Articles 20 and 21 TFEU, reserved for citizens of the Union. Consequently, the refusal by the Bulgarian authorities to issue a Bulgarian birth certificate designating, like the Spanish one, the applicant in the main proceedings and her wife as the mothers of the child, as well as the refusal to issue a Bulgarian identity document to this child, cannot infringe these rights.

On the contrary, the refusal to issue the requested birth certificate could constitute an obstacle to the right to free movement of the Bulgarian mother, who, according to AG Kokott (based on the information given by the Spanish government at the hearing), has legally acquired the status of mother of the child under Spanish law. If she is not included in this document, she will not be considered the mother of the child within the meaning of Bulgarian family law. In this regard, it should be recalled that according to the CJEU any national measure which is likely to hamper or make less attractive the exercise of the free movement by nationals of the Union may constitute an obstacle to this freedom.

The referring court asks the CJEU whether such obstacle could be justified on the protection of the national identity in the sense of Article 4 (2) TEU. To this AG Kokott answers in the affirmative: first, the Court has already implicitly recognized that the rules governing marriage are part of national identity within the meaning of Article 4 (2) TEU. Secondly, the national identity enshrined in Article 4 (2) TEU is not only one legitimate objective among others which may be taken into account when examining a possible justification for a restriction of the right to free circulation; on the contrary, it possesses a ‘vertical dimension’, that is to say, the Treaties give it a role in the delimitation of competences between the Union and the Member States. Hence, the Court can only exercise a limited control over measures adopted by a Member State for the purpose of safeguarding its national identity; conversely, it cannot apply a proportionality check like it does with ‘simple legitimate objectives’. Such as test will be applied, though, to measures adopted by the Bulgarian authorities in the field of family law provided ‘the fundamental expression of the concept that the Member State concerned intends to protect as part of its national identity’ is not in cause.

In the case at hand the precedent translates as follows:

.- Given that the determination of parentage within the meaning of family law is the sole competence of the Member States, AG Kokott considers that the Republic of Bulgaria is not required to recognize parentage as established in the Spanish birth certificate for the purposes of the application of Bulgarian family and inheritance law. In other words, the obligation to recognize parentage for the purpose of drawing up a birth certificate affects the fundamental expression of the national identity of the Republic of Bulgaria. (NoA: as the inclusion of the applicant in the main proceedings as a mother on the birth certificate necessarily implies recognition of the legal effects of the same-sex marriage for the purposes of determining parentage, one would have expected a clear assertion in the sense that Bulgaria is not obliged to issue such a certificate at all. This is not said in so many words, though, but hinted at a later stage in the Opinion, when the obligation of the Bulgarian to produce a document of identity allowing the child to travel with her mothers, and each of them to travel with the child pursuant to Article 4 of Directive 2004/38, is addressed).

.- By contrast, the Bulgarian authorities must accept the filiation bonds between the Bulgarian applicant and the child, as established in Spain, for the limited purposes of allowing the former to exercise the rights conferred by secondary Union law relating to the free movement of citizens. That is to say, to travel with the kid and to reside in the Member State of origin (Bulgaria), with the members of the family under normal conditions.

ii) The child is a citizen of the Union

Should the applicant acknowledge she is the biological mother of the child, or recognize the child as her own, the girl would automatically be a Bulgarian national, hence a citizen of the European Union. The refusal to deliver a birth certificate will indeed entail negative consequences for her. Would it be a solution to deliver the certificate only indicating the motherhood of the Bulgarian spouse?

In principle, in the light of the potential consequences on the right to free movement, the possibility just mentioned does not convince AG Kokott: equivalent documents concerning the child, but issued in different States, would contain divergent information on her; she would not be able to travel with each of her parents. To the question whether such obstacles could nevertheless be justified, Ag Kokott answers, first, that the refusal to recognize parentage with regard to the British mother, for the purposes of establishing a Bulgarian birth certificate, could indeed be based on the Bulgarian ‘national identity’ within the meaning of Article 4 (2) TEU.  On the contrary, considering that an identity document has no probative function with regard to the filiation of a person (so the AG), the refusal to recognize parentage for the purpose of issuing an identity document in accordance with Article 4 (3) of Directive 2004/38 is not acceptable.

Some Hints to the Bulgarian Authorities

By its fourth question, the referring court asks whether it should reject the model birth certificate under the national legislation in force, and replace it with a model allowing two mothers to be mentioned under the heading ‘parents’. Indeed, the referring court must – in the event that the child has the Bulgarian nationality – solve the practical problem that the establishment of a Bulgarian birth certificate is the prerequisite for issuing an identity document.

Given that, according to the explanations of the Bulgarian government at the hearing, a Bulgarian identity document does not mention the names of the parents, AG Kokott suggests that said document is issued based on a Bulgarian birth certificated designating as ‘mother’ only one of the spouses, provided it is accompanied by a travel document delivered for the purpose of identifying the parents of the child, where both women are mentioned.

And Further

Case C-490/20 raises questions is very similar to those addressed to the CJEU by a Polish court in Case C-2/21, Rzecznik Praw Obywatelskich. The latter case concerns the child of a Polish national, married to an Irish woman, who reside together in Spain. Again, the Spanish authorities issued a birth certificate designating the two women as the mother of the child. The referring court asks the Court whether the Polish administrative authorities can refuse to transcribe this birth certificate – the transcription being necessary to enable the child to obtain a Polish identity document- on the grounds that Polish law does not accept the parenthood of same-sex couples, and that the said birth certificate designates persons of the same sex as parents.

Senior research fellow MPI Luxembourg (on leave) Legal secretary at the CJEU Full Professor PIL, University of La Laguna (Spain)

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