This post was written by Nadia Rusinova (Hague University of Applied Sciences).
The judgment of the Court of Justice of the EU in the Pancharevo case (C-490/20) drew the attention of the legal community across Europe (see post on this blog here), as it analyzed the compatibility with the EU law of the refusal to issue a Bulgarian birth certificate indicating two persons of the same sex as parents. Following this judgment, the legal proceedings in Bulgaria continued and final Supreme Court judgment was issued on 1 March 2023. This final court act is important for the further developments in regard to the free movement and cross-border recognition of parenthood.
To recall the facts, the Bulgarian V.M.A. and the British K.D.K. – both women – are married and have been living together in Spain since 2015. In December 2019, the couple had a daughter, S.D.K.A., who was born and lives in Spain. The Spanish authorities issued a birth certificate for S.D.K.A. which names V.M.A. and K.D.K. as her mothers. V.M.A. also applied to the Bulgarian authorities for a birth certificate for the child, which is needed to secure a Bulgarian identity document. Sofia municipality instructed V.М.А. to disclose the identity of the child’s biological mother. V.М.А. did not do so. Sofia municipality then refused to issue the birth certificate.
V.M.A. appealed before the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia), which in turn referred to the Court of Justice of the EU. In its judgment, delivered by the Grand Chamber, the CJEU held that a child, who is an EU citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates two persons of the same sex as the child’s parents, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the right to move and reside freely within the territory of the Member States.
Following the CJEU judgment in Pancharevo, the referring court obliged Sofia municipality to issue a birth certificate for the child noting V.M.A. and K.D.K as her parents. After an appeal the Bulgarian Supreme Administrative Court (Supreme Court) overruled this decision, upholding the refusal to issue a birth certificate for the child, stating that the child is not a Bulgarian citizen (author’s unofficial translation of the judgment into English here)
What are the Facts and was is the Law?
To answer this question, it is important to review the initial application: the request is to draw up a birth certificate for the child, a prerequisite for Bulgarian identity documents to be issued. As noted, CJEU explicitly points that the obligation of the Member State under Article 4, § 3 Directive 2004/38/EC is to issue an identity card or passport to its citizens. In this sense, the question of the nationality of the child becomes crucial: if the child does not have Bulgarian nationality, then the Republic of Bulgaria is under no obligation to draw up a birth certificate, and in this case the refusal would be fully in accordance with the law.
The CJEU confirms what is obvious, finding that it is for each Member State, having due regard to international law, to lay down the conditions for acquisition and loss of nationality. Then it stated that “according to the findings of the referring court, which alone has jurisdiction in that regard, S.D.K.A. has Bulgarian nationality by birth”. Therefore, the entire CJEU judgment is rendered under the initial assumption that the child has acquired Bulgarian nationality at birth, stating in § 44 that “since S.D.K.A. is a Bulgarian national, the Bulgarian authorities are required to issue to her an identity card”. Following the CJEU judgment, the referring court imposed an obligation on the Bulgarian authority to issue a birth certificate for the child, again assuming that the child is a Bulgarian citizen.
The Supreme Court as a last instance court has the power to reassess the facts. The Supreme Court then starts the assessment of the requirements de novo and notes that for a child to acquire Bulgarian nationality by birth, at least one of the parents must be a Bulgarian national, and points that “of importance in this case (…) is the presence of filiation with the Bulgarian citizen”. Indeed, Article 25 of the Bulgarian Constitution and Article 8 of the Law on Bulgarian Citizenship state that a Bulgarian citizen is anyone whose at least one parent is a Bulgarian citizen. How then can it be established who has the capacity of “parent” in this situation, and is it decisive that in the Spanish birth certificate the child has two (same-sex) parents?
In their plea to the first instance court, the applicants referred to the provisions of the Bulgarian Private International Law (PIL) Code. They essentially argued that the Spanish law is applicable to the establishment of parenthood and since both mothers have validly acquired the status of parent of the child in Spain, thus filiation with the Bulgarian mother is established and leads to acquisition of Bulgarian nationality. It is however questionable if these PIL provisions can be applied for the purpose of nationality determination, which is traditionally purely domestic issue. According to the Article 83 § 1 of the PIL Code, establishment of a parent-child relationship is governed by the law of the State whose nationality the child acquired at the time of birth. It is true that if the child has Spanish nationality by birth, then parenthood should be established according to the Spanish law. If it is stateless Article 83, para. 2 and 3 of the PIL Code would again point to the Spanish law as applicable law as more favorable to the child. However, for these provisions to be applicable, the child first needs to be found to be a Spanish citizen by birth or stateless, both logically following a determination of its nationality.
To initially determine whether the child has Bulgarian nationality under Article 25 of the Constitution, the parenthood would therefore inevitably be established under the Bulgarian law. Pursuant to Article 60, paras. 1 and 2 of the Family Code the origin from the mother is determined by birth. The child’s mother is the woman who gave birth, including in instances of assisted reproduction. It was therefore necessary in the present case to identify the woman who gave birth, information the couple concerned refused to disclose. This refusal led to the result that filiation with the Bulgarian mother cannot be established. The Supreme Court then held that “After it was established in the case that the child (…) is not a Bulgarian citizen, in the sense of the applicable law, there is no obligation for the Republic of Bulgaria (…) to draw up a birth certificate”.
The conclusion concerning the nationality of the child, and the judgment in this part, are technically correct. They are also very convenient in that they provide the ideal setting for the Bulgarian authorities to achieve the result they need to achieve, that is, to not recognise same-sex parenthood under the Bulgarian legal order. This approach allowed a formally accurate judgment and released the Supreme Court from an obligation to rule on several decidedly inconvenient issues, the first and most important one being the thorny question on the same-sex parenthood.
In addition, no danger of statelessness is present because the child is entitled to Spanish nationality. When Bulgarian nationality by birth is not possible, no other ground for acquisition can be applied to the present case. The Supreme Court notes also that the child did not acquire British nationality by birth because the British mother, who was born in Gibraltar to a parent who was a British national, cannot pass on her nationality to a child when that child is born outside the territory of the United Kingdom (footnote 14 of the AG Opinion). Since concerns regarding potential statelessness were raised, the Supreme Court needed to examine whether a danger existed for the child to be stateless – an undesired outcome for the Bulgarian authorities as it would bring supranational response and potential accountability.
To exclude potential statelessness, after establishing that the child is not Bulgarian national, the Supreme Court referred to the Spanish law that Spanish citizens by origin are persons born in Spain when the national law of neither of their parents confers nationality on the child.
Given the facts established in the case, that the national legislation of either of the parents named in the child’s birth certificate drawn up in Spain, where it was born, does not grant citizenship, it [the child] should, by virtue of the said provision, be a citizen of Spain, member of the European Union. […] its applicability, in the present case, was expressly confirmed by the Spanish Government […] as the Advocate General points out, there is no danger of the child being stateless.
Essentially, by stating that the child is not a Bulgarian national, the Supreme Court provides the mothers with the only condition needed to claim the child’s right to Spanish nationality and shifts the responsibility for the current statelessness to them.
As a consequence, the child is also an EU citizen and therefore has the right to free movement. The Supreme Court mentions that because the child is not a Bulgarian citizen, she cannot invoke either the rights arising from 4, § 3 of Directive 2004/38/EC, or those arising from Articles 20 and 21 TFEU. But this would be true only if the child was not an EU citizen. Because the child’s right to Spanish nationality “upon request” is established, it is for the mothers to exercise the right and receive the protection of the rights of the child through the acquisition of Spanish citizenship.
Is Bulgaria in Violation of its Obligations under EU law?
In § 67 and 68 of the Pancharevo ruling, CJEU also considered the possibility that S.D.K.A. does not have Bulgarian nationality. In this case, it pointed out that regardless of their nationality and whether they themselves are EU 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 of an EU citizen – V.M.A., within the meaning of Article 2(2)(a) and (c) of Directive 2004/38, and therefore must be regarded as being V.M.A.’s family members “for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto”. Can we then say that Bulgaria refuses to recognize the parent-child relationship legally established between a child and both her (same-sex) parents in another Member State for the purpose of exercising EU free movement rights with both parents?
Such conclusion appears to be rushed. With the Supreme Court judgment Bulgaria does not create obstacles to the child’s freedom of movement because “to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU” is not at all what was requested from the Bulgarian authorities. The two mothers requested a Bulgarian birth certificate intended to be used to apply for a Bulgarian identity document (this is also established and noted in §15 of the Request for preliminary ruling) and the legal nature of this request inevitably triggered the application of Bulgarian law on nationality.
The Pancharevo ruling does not require the Member States to mutually recognize the contents of birth certificates in regard to matters that do not relate to free movement rights. If the request had concerned indeed the right to free movement on the basis of the child’s being a direct descendant and V.M.A.’s family member, the authorities would not have had grounds to refuse. However, this should have been anticipated at an earlier stage of the proceedings. It is not in the Court’s power to rule on an issue not raised in any of these administrative proceedings.
What Would be the Right Way to Proceed?
It perhaps remains true that if the applicants had asked the right question, they would have received the right answer. Adequate proceeding is currently available under the Law on the entry, residence and departure of the citizens of the European Union and their family members (it is worth to note that indeed before 2019 this avenue was not available for Bulgarian citizens as this instrument used to encompass the citizens of the European Union who are not Bulgarian citizens and their family members.) As an example, this same Supreme Court rendered not so long ago a judgment recognising same-sex marriage for the purposes of free movement, in line with the Coman ruling, by issuing a permit for a long-term residence of a family member of a citizen of the EU in Bulgaria. Indeed, Bulgarian law does not permit same-sex marriage, and the Bulgarian Constitution stipulates that marriage is a voluntary union between a man and a woman. The Court then rightly noted that the disputed issue in the case is not related to the conclusion or recognition of a same-sex civil marriage in Bulgaria, but to the presence or lack of the prerequisites for a family member of an EU citizen to reside lawfully in Bulgaria. In addition, the Court’s decision holds that
It follows that a Member State cannot invoke its national law to refuse to recognize on its territory, solely for the purpose of granting a derived right of residence to a third-country national, a marriage concluded by him/her with a Union citizen of the same sex in another Member State in accordance with its law.