(Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Right to move and reside freely within the territory of the Member States – Child born in the host Member State of her parents – Birth certificate issued by that Member State mentioning two mothers in respect of that child – Refusal by the Member State of origin of one of those two mothers to issue a birth certificate for the child in the absence of information as to the identity of the child’s biological mother – Possession of such a certificate being a prerequisite for the issue of an identity card or a passport – Persons of the same sex not recognised as parents under the national legislation of that Member State of origin)
SOURCE: Court of Justice of the European Union, Press Release No 221/21, 14 December '21
V.M.A., a Bulgarian national, and K.D.K. have resided in Spain since 2015 and were married in 2018. Their child, S.D.K.A., was born in Spain in 2019. The child’s birth certificate, drawn up by the Spanish authorities, refers to both mothers as being the parents of the child. Since a birth certificate issued by the Bulgarian authorities is necessary to obtain a Bulgarian identity document, V.М.А. applied to the Sofia municipality (Bulgaria) for a birth certificate for S.D.K.A. to be issued to her. In support of her application, V.М.А. submitted a legalised and certified translation into Bulgarian of the extract from the Spanish civil register relating to S.D.K.A.’s birth certificate.
Sofia municipality instructed V.М.А. to provide evidence of the parentage of S.D.K.A., with respect to the identity of her biological mother. The model birth certificate applicable in Bulgaria has only one box for the ‘mother’ and another for the ‘father’, and only one name may appear in each box.
V.М.А. took the view that she was not required to provide the information requested, whereupon the Sofia municipality refused to issue the requested birth certificate because of the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to Bulgarian public policy, which does not permit marriage between two persons of the same sex. V.M.A. brought an action against that refusal decision before the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia), the referring court.
That court is uncertain as to whether the refusal by the Bulgarian authorities to register the birth of a Bulgarian national, which occurred in another Member State and has been attested by a birth certificate referring to two mothers, issued in the latter Member State, infringes the rights conferred on that Bulgarian national by Articles 20 and 21 TFEU and by Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union. That refusal could make it more difficult for a Bulgarian identity document to be issued and, therefore, hinder the child’s exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen.
In those circumstances, the referring court decided to ask the Court of Justice about the interpretation of Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter. It asks, in essence, whether those provisions oblige a Member State to issue a birth certificate, in order for a Bulgarian identity document to be obtained, for a child, a national of that Member State, whose birth in another Member State is attested by a birth certificate that has been drawn up by the authorities of that other Member State in accordance with the national law of that other State, and which designates, as the mothers of that child, a national of the first of those Member States and her wife, without specifying which of the two women gave birth to that child.
In its judgment, delivered by the Grand Chamber, the Court interprets the provisions referred to above as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, 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 child’s right to move and reside freely within the territory of the Member States.
Findings of the Court
In reaching that conclusion, the Court recalls first of all that, in order to enable nationals of the Member States to exercise their right to move and reside freely within the territory of the Member States, a right which every citizen of the Union enjoys under Article 21(1) TFEU, Directive 2004/38 requires Member States, acting in accordance with their laws, to issue to their own nationals an identity card or passport stating their nationality.
Accordingly, since S.D.K.A. has Bulgarian nationality, the Bulgarian authorities are required to issue to her a Bulgarian identity card or passport stating her surname as it appears on the birth certificate drawn up by the Spanish authorities, regardless of whether a new birth certificate is drawn up.
Such a document, whether alone or accompanied by a document issued by the host Member State, must enable a child such as S.D.K.A. to exercise the right of free movement, with each of the child’s two mothers, whose status as parents of that child has been established by the host Member State during a stay in accordance with Directive 2004/38.
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. Since the Spanish authorities have lawfully established that there is a parent-child relationship, biological or legal, between S.D.K.A. and her two parents, attested in the birth certificate issued in respect of the child, V.M.A. and K.D.K. must, pursuant to Article 21 TFEU and Directive 2004/38, be recognised by all Member States as having the right, as parents of a Union citizen who is a minor and of whom they are the primary carers, to accompany that child when she is exercising her rights.
It follows, first, that the Member States must recognise that parent-child relationship in order to enable S.D.K.A. to exercise, with each of her parents, her right of free movement. Second, both parents must have a document which enables them to travel with that child. The authorities of the host Member State are best placed to draw up such a document, which may consist in a birth certificate and which the other Member States are obliged to recognise.
Admittedly, a person’s status is a matter which falls within the competence of the Member States, which are free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law. In exercising that competence, each Member state must comply with EU law, in particular the Treaty provisions on Union citizens’ freedom of movement and of residence, by recognising, for that purpose, the civil status of persons that has been established in another Member State in accordance with the law of that other Member State.
In the present case, the obligation for a Member State to issue an identity document to a child who is a national of that State, who was born in another Member State in which the birth certificate was drawn up and designates as parents two persons of the same sex, and, moreover, to recognise the parent-child relationship between that child and each of those two persons in the context of the child’s exercise of her rights under Article 21 TFEU and secondary legislation relating thereto, does not undermine the national identity or pose a threat to the public policy of that Member State. It does not require the Member State concerned 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 rights which the child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents.
Lastly, a national measure that is liable to obstruct the exercise of freedom of movement for persons may be justified only where it is consistent with the fundamental rights guaranteed by the Charter. It is contrary to the fundamental rights guaranteed by Articles 7 and 24 of the Charter for the child to be deprived of the relationship with one of her parents when exercising her right of free movement or for her exercise of that right to be made impossible or excessively difficult on the ground that her parents are of the same sex.
(Reference for a preliminary ruling — Border control, asylum, immigration — Article 20 TFEU — Charter of Fundamental Rights of the European Union — Articles 7 and 24 — Directive 2008/115/EC — Articles 5 and 11 — Third-country national subject to an entry ban — Application for residence for the purposes of family reunification with a Union citizen who has not exercised freedom of movement — Refusal to examine the application)
SOURCE: Court of Justice of the European Union, Annual report 2018
On 8 May 2018, by its judgment in K.A. and Others (Family reunification in Belgium), the Court, sitting as the Grand Chamber, provided clarification on the derived right of residence on which third country national family members of a Union citizen who has never exercised his right to freedom of movement may rely on the basis of Article 20 TFEU. The main proceedings involved several third country nationals who had submitted applications for residence for the purposes of family reunification in their capacity as either a dependent relative in the descending line of a Belgian citizen, the parent of a Belgian minor or a lawfully cohabiting partner in a stable relationship with a Belgian citizen. Those applications had not been examined on the ground that the persons concerned had been the subject of an entry ban that remained in force, some of those decisions being justified by grounds relating to the existence of a threat to public policy.
The Court held, in the first place, that Article 20 TFEU precludes a practice of a Member State that consists in not examining such applications solely on the ground that the third country national concerned is the subject of an entry ban, without any examination of whether there exists a relationship of dependency between the Union citizen and that third country national of such a nature that, in the event of a refusal to grant a derived right of residence to the third country national, the Union citizen would, in practice, be compelled to leave the territory of the European Union to accompany the family member to his country of origin and thereby be deprived of the genuine enjoyment of the substance of the rights conferred by that status.
In the second place, the Court explained the circumstances in which such a relationship of dependency may come into being. The Court made clear that, unlike minors (and in particular young children), an adult is, as a general rule, capable of living an independent existence apart from the members of his family. Where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant to the third country national concerned of a derived right of residence, is thus conceivable only in exceptional cases, where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible. On the other hand, where the Union citizen is a minor, the assessment of the existence of a relationship of dependency must be based on consideration, in the best interests of the child, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the third country national might entail for that child’s equilibrium.
In the third place, the Court stated that in the context of the main action, some factors had no bearing on the grant of a derived right of residence to the third country national concerned. Thus, it is immaterial that the relationship of dependency relied on by the third country national comes into being after the imposition on him of an entry ban. It is also immaterial that the decision may have become final at the time when the third country national submits his application for residence for the purposes of family reunification, or that that decision may be justified by non-compliance with an obligation to return. Moreover, where such a decision is justified on public policy grounds, such grounds cannot automatically lead to a refusal to grant a derived right of residence. That refusal must be the result of a specific assessment of all the circumstances of the individual case, in the light of the principle of proportionality, the best interests of the child and fundamental rights, indicating that the person concerned represents a genuine, present and sufficiently serious threat to public policy.
In the fourth place, the Court stated that under Directive 2008/115, a return decision may not be adopted with respect to a third country national, who has previously been the subject of a return decision, accompanied by an entry ban that remains in force, without any account being taken of the details of his family life, and in particular the interests of a minor child of that third country national, referred to in an application for residence for the purposes of family reunification submitted after the adoption of such an entry ban, unless such details could have been provided earlier by the person concerned.