The Court of Justice of the EU’s Advocate General Juliane Kokott delivered her opinion on Thursday, 15 April, in the case (C-490/20) between the municipality of Sofia, Bulgaria, and a married couple consisting of two women who were unable to obtain a birth certificate for their daughter from the municipality (see EUROPE 12654/21).
The child was born in Spain. Wanting her to have EU citizenship, the two women had no choice but to turn to Bulgaria, of which one of them is a national.
In the child’s birth certificate which was issued in Spain, both are designated as “mothers”. In order to be able to issue a Bulgarian birth certificate, the municipality of Sofia asked them to indicate only one biological mother. Bulgaria does not allow same-sex marriage and considers registering two female parents on a birth certificate to be contrary to public policy.
The mother who submitted the application refused to provide the requested information. This caused the application to be rejected.
It is now up to the European court to determine whether an EU citizen who has made use of her right to free movement and has become a mother under the law of another State can demand that her country of origin recognise this situation and issue a birth certificate designating both women as parents.
The advocate general specifies that EU law, admittedly, does not govern the rules pertaining to the establishment of civil status, but States must exercise their powers in this regard in compliance with EU law.
The latter guarantees the right to free movement, which in turn guarantees the right to lead a normal family life in one’s country of origin as well as in a host Member State. Yet, the lack of recognition of family relationships in this case would “create serious obstacles to a family life in Bulgaria”, emphasises Mrs Kokott.
She believes that the Bulgarian authorities’ refusal to draw up the birth certificate consequently constitutes an impediment to the rights conferred by EU law.
“Traditional” concept
For their part, the Bulgarian authorities invoked an attack on the Bulgarian national identity. The requested birth certificate would deviate from the concept of a “traditional” family enshrined in their constitution.
Considering that the definition of parental relationships is indeed likely to fall within “the fundamental expression of national identity”, the advocate general considers the argument admissible.
But she qualifies that, in this case, the obligation to recognise the family relationships established in Spain has the sole purpose of being able to apply the EU law on free movement. This obligation will not alter the concept of parentage or marriage under Bulgarian family law and will not lead to the introduction of new concepts.
She therefore recommends striking a balance between the national identity of Member States and the right to free movement of the child and his or her parents. (Original version in French by Agathe Cherki)