CJEU to rule on seminal case for LGBTQ+ rights

On 9 February 2021, the Grand Chamber of the Court of Justice of the European Union (CJEU) will hear a request for a preliminary ruling in a case with far-reaching implications for LGBTQ+ rights in the EU (Case C‑490/20).

The CJEU has been asked to decide whether Bulgaria’s refusal to issue a birth certificate to a Bulgarian national with two mothers, on the basis that Bulgaria does not recognise same-sex marriages, violates EU law.

The preliminary ruling is another long-awaited opportunity for the CJEU to strengthen the LGBTQ+ rights within the EU. The CJEU must clarify whether parentage established in one Member State must be recognised across the EU. In particular, the CJEU must reach a decision on whether a Member State’s non-recognition of same-sex marriages may be claimed as constituting its “national identity” that justifies infringement of one of the four fundamental freedoms of the EU – the right to freedom of movement under Article 21 of the Treaty on the Functioning of the European Union (TFEU). The answers to these questions should be clear under EU law – Member States cannot nullify the parentage established in one Member State, especially not to foster inequality on the basis of sexual orientation.

Freshfields Bruckhaus Deringer has teamed up with ILGA Europe, an international non-governmental organisation focussed on LGBTQ+ rights, to provide legal and strategic support in this case. For more information about Freshfields' involvement, see here.

Background

In February 2018, a Bulgarian national and a UK national, resident in Spain and both female, registered a civil marriage in Gibraltar, UK. In December 2019, in Barcelona, Spain, their child was born. The Spanish authorities issued a birth certificate for the child, listing both mothers as the child’s parents.

The child is a Bulgarian national. In January 2020, the Bulgarian mother requested the Bulgarian authorities to issue a birth certificate for the child based on the Spanish birth certificate. A Bulgarian birth certificate is a prerequisite for the child to obtain Bulgarian identity documents.

The Bulgarian municipality rejected the request based on the failure to specify which of the two mothers was the biological mother. It mainly justified its decision by arguing that same sex marriages are against Bulgarian public policy.

As a result, the child’s rights as an EU citizen are severely restricted. Without identification documents, such as a passport, she will not be able to travel. Nor will she be able to enrol in schools or universities.

The Bulgarian mother therefore lodged a claim with the Administrative Court of the City of Sofia against the Bulgarian authorities’ refusal to issue the birth certificate for the child. The issue is now before the CJEU. 

Issues for determination

The Administrative Court referred four questions to the CJEU, which include two main issues:

• Can the child and the Bulgarian mother rely on the right to free movement as well as the right to family and private life?
• Can Bulgaria justify any restriction of these rights because its stance against same sex marriages is a matter of “national identity” within the meaning of Article 4(2) Treaty of the European Union?

EU law requires parentage established in one Member State to be recognised across the EU

The existing case law militates in favour of a finding that Bulgaria’s failure to issue the birth certificate constitutes a violation of the right to free movement (Article 21 TFEU), the right to family and private life (Article 7 Charter of Fundamental Rights of the European Union, EUCFR) as well as the best interests of the child (Article 24(2) EUCFR).

The CJEU has already held that a Member State must not prevent a same sex couple, legally married in another Member State, from exercising their rights to freedom of movement within the EU (C‑673/16, Coman). This ruling applies equally to the present case notwithstanding the even broader issue at stake, i.e. the legal recognition of a relationship between a child and her same sex parents.

Moreover, the European Court of Human Rights has decided that parentage established abroad must be recognised by another country failing which the right to private life (including the right to an identity) and the best interests of the child would be violated (Mennesson v. France).

Bulgaria’s justifications based on a “national identity” against same sex marriages must fail. The present case does not concern national identity: Bulgaria is only required to recognise the legality of a same sex marriage and the parentage established in a different EU Member State, without having to recognise same-sex marriages in its domestic legislation.

In any event, Bulgaria’s stance against same sex marriages and its refusal to recognise an established parentage are diametrically opposed to the foundations of EU law. They completely disregard the child’s family ties and negate her ability to exercise her right to free movement in the EU. In fact, the CJEU has recognised a Member State’s national identity only when it was generally compatible with fundamental principles of EU law, such as equality of EU citizens (C‑438/14, Bogendorff). Thus, Member States cannot nullify an EU citizen’s right to free movement by discriminating on the basis of sexual orientation.