CJEU Case C-490/20 / Judgment

1)  This request for a preliminary ruling concerns the interpretation of Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 9, 24 and 45 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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26) The referring court has doubts, however, 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 that mentions two mothers and was issued by the competent authorities of the latter Member State infringes the rights conferred on such a national in Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter. The Bulgarian authorities’ refusal to issue a birth certificate – albeit that it would have no legal effect on the Bulgarian nationality of the child concerned and consequently on that child’s Union citizenship – is liable to make it more difficult for a Bulgarian identity document to be issued and, therefore, to hinder that child’s exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen.

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30) The referring court is uncertain whether, in the present case, such a balance could be achieved by applying the principle of proportionality and, in particular, whether mentioning under the heading ‘Mother’ the name of one of the two mothers included on the birth certificate drawn up by the Spanish authorities – who may be either the biological mother of the child or the person who became the child’s mother by way of another procedure, such as adoption, for example – without completing the ‘Father’ section would constitute an appropriate balance between those different legitimate interests. It points out that while such a solution could also create certain difficulties due to possible differences between the birth certificate drawn up by the Bulgarian authorities and that drawn up by the Spanish authorities, it would allow a birth certificate to be issued by the Bulgarian authorities, thus avoiding, or at least reducing, any obstacles to the free movement of the child concerned. The referring court queries, however, whether that solution would be compatible with the child’s right to a private and family life affirmed in Article 7 of the Charter.

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32) In those circumstances, the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the [Charter] 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 [European Union] 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?

2. Must Article 4(2) TEU and Article 9 of the [Charter] 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 Article 4(2) TEU be interpreted as allowing Member States 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?

3. Is the answer to Question 1 affected by the legal consequences of [the Withdrawal Agreement] in that one of the mothers listed on the birth certificate issued in another Member State is a United Kingdom 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 [a Union] citizen?

4. 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 is one of the model civil status certificates] applicable [at a national level]?’

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51) It is true, as the referring court has noted, that Article 9 of the Charter provides that the right to marry and the right to found a family are to be guaranteed in accordance with the national laws governing the exercise of these rights.

52) In that regard, as EU law currently stands, a person’s status, which is relevant to the rules on marriage and parentage, is a matter that falls within the competence of the Member States and EU law does not detract from that competence. The Member States are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law. Nevertheless, in exercising that competence, each Member State must comply with EU law, in particular the provisions of the FEU Treaty on the freedom conferred on all Union citizens to move and reside within the territory of the Member States, 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 (see, to that effect, judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraphs 36 to 38 and the case-law cited).

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58) It should be added that a national measure that is liable to obstruct the exercise of freedom of movement for persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter, it being the task of the Court to ensure that those rights are respected (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 47).

59) In the situation with which the main proceedings are concerned, the right to respect for private and family life guaranteed in Article 7 of the Charter and the rights of the child guaranteed in Article 24 of the Charter, in particular the right to have the child’s best interests taken into account as a primary consideration in all actions relating to children, and the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, are fundamental.

60) In that regard, as is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 7 thereof have the same meaning and the same scope as those guaranteed in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.

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62) Accordingly, as the Advocate General noted in point 153 of her Opinion, the relationship between the child concerned and each of the two persons with whom she leads a genuine family life in the host Member State and who are mentioned as being her parents on the birth certificate drawn up by that Member State’s authorities is protected under Article 7 of the Charter.

63) In addition, as has been recalled in paragraph 59 of the present judgment, the right to respect for family life, as stated in Article 7 of the Charter, must be read in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of the Charter. Since Article 24 of the Charter, as the Explanations relating to the Charter of Fundamental Rights note, represents the integration into EU law of the principal rights of the child referred to in the Convention on the rights of the child, which has been ratified by all the Member States, it is necessary, when interpreting that article, to take due account of the provisions of that convention (see, to that effect, judgments of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraph 39, and of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraph 37).

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65) In those circumstances, it would be contrary to the fundamental rights which are guaranteed to the child under Articles 7 and 24 of the Charter for her to be 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.

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69) Having regard to all of the above considerations, the answer to the questions referred is that Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter, read in conjunction with Article 4(3) of Directive 2004/38, must be interpreted 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.