V.М.А. v Stolichna obshtina, rayon “Pancharevo”

Parties (including notable third parties)

V.М.А. (Applicant); Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria) (‘the Sofia municipality’) (Respondent)

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Summary of Facts

V.M.A. was a Bulgarian national and her partner, K.D.K. was a British national. The two women had been residing in Gibraltar since 2016 and were 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, complaining against refusal by the Sofia municipality to issue a birth certificate in respect of the daughter of V.M.A. and of her wife. The Administrative Court of the City of Sofia (the ‘Referring Court’) stayed the proceedings and referred several questions for a preliminary ruling to the Court of Justice of the European Union, concerning the interpretation of Article 4(2) of the Treaty on European Union (‘TEU’), Articles 20 and 21 of the Treaty on the Functioning of the European Union ('TFEU') and Articles 7, 9, 24 and 45 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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Legal Arguments

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 of obtaining 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 queried 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 proposed, in order to strike a balance between the constitutional and national identity of Bulgaria 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 the proceeding and referred four questions to the CJEU:

1. 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.
2. The extent to which Article 4(2) TEU and Article 9 of the Charter allow states to issue specific rules in relation to parentage.
3. 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 affirmative, the referring court asks whether EU law would oblige Member States to depart from their model birth certificate on a national level.

Outcome

The CJEU first 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 had accepted that the child had Bulgarian citizenship and under Article 20(1) of the TFEU and is consequently a citizen of the European Union. The CJEU then 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 (citing Coman and Others, C‑673/16, EU:C:2018:385). 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 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 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 Article 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. 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 Article 9 of the Charter, the definition of 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 Article 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 are two individuals of the same sex, does not constitute a significant enough threat to public policy. The obligation does not include the duty to recognise same-sex parents in 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 Article 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 Article 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 Article 7 of the Charter. Such provision is to be read in conjunction with Article 24 on the best interests of the child and Article 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 concluded that a Member State is obliged to: (i) issue identity documents to its minor citizen without first requiring a national birth certificate, and (ii) recognise the child's foreign birth certificate designating two same-sex parents, thereby enabling the child's right to free movement with each parent.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Rights of the Child	2, 7
Regional	Treaty on European Union	4
Regional	Treaty on the Functioning of the European Union ('TFEU')	20, 21
Regional	Charter of Fundamental Rights of the European Union	7, 9, 24, 45
Regional	Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States	2, 4, 5
Domestic	Konstitutsia na Republika Bulgaria (Bulgarian Constitution)	25
Domestic	Zakon za balgarskoto grazhdanstvo (Law on Bulgarian nationality)	8
Domestic	Semeen kodeks (Family Code)	60

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.