Court of Justice: Member States obliged to issue ID card for EU citizens whose parents are a same-sex marriage

The Court of Justice delivered its judgment today in Grand Chamber case „Pancharevo” (C-490/20), ruling that Member States that do not recognise same-sex marriage in their national law are nonetheless obliged to issue an ID card or a passport for a national who is an EU citizen and child to a same-sex couple that was legally married in a Member State.

The referring court, the Sofia Administrative Court, had referred a question for a preliminary ruling to the Court on whether, upon an application by two female spouses, national authorities of a Member State (Bulgaria) can deny a birth certification concerning a child born in another Member State and appropriately certified in such Member State (Spain), on the basis that the applicants refuse to state which of the partners is the child’s biological mother. 

The application was made in order to issue a Bulgarian identity document for the child concerned, and the partners’ refusal was due to the fact that the model birth certificate in Bulgaria provides only one box for the ‘mother’ and another for the ‘father’, while each of those boxes may include only one name. The referring court specifically inquired whether such refusal infringed the rights conferred on that Bulgarian national by Articles 20 and 21 TFEU and by Articles 7, 24 and 45 of the Charter.

In its judgment, the Court of Justice held that the Member State of which the child is a national (Bulgaria) is required to issue to that child an ID card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and to recognise the document from the host Member State (Spain) that allows that child to exercise its right to move and reside freely within the territory of the Member State.

The Court reasoned that given that Spanish authorities have lawfully established that there is a parent-child relationship between the child and her two parents, duly attested in the birth certificate issued by the host Member State, must 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 pursuant to Article 21 TFEU and Citizens’ Directive 2004/38.

According to the Court, this does not undermine the national identity or pose a threat to the public policy of that Member State, as it does not require the Member State concerned to provide under its national law, a recognition of same-sex parenthood or the recognition of that parent-child relationship for purposes other than the exercise of the rights which the child or its parents derive from EU law. A situation in which the child would 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 would be, in view of the Court, contrary to Articles 7 and 24 of the Charter.

The judgment is available here (not available in English at the time of publication).

Two Analyses on this case by Alezini Loxa and David Krappitz will be published soon on EU Law Live.