A Bulgarian national and a United Kigdom national, in a same sex married couple, gave birth to their daughter in Spain. According to the Spanish birth certificate both were appointed as mother of the child. In order to obtain a Bulgarian identity document for the daughter useful for the circulation on the territory, the Bulgarian national mother was requested a transcript of the birth certificate and the public officer appointed that on the request form only one person can check the box “mother”.
By a following decision, the Sofia municipality therefore refused to the Bulgarian mother application for a birth certificate to be issued for her daughter: the reasons given for that refusal decision were the lack of information concerning the identity of the child’s biological parent and the fact that a reference to two female parents on a birth certificate was contrary to the public policy of the Republic of Bulgaria, which does not permit marriage between two persons of the same sex.
The Bulgarian citizen brought an action against that refusal decision and the court raised some doubts, which brought to the referring to the European Court of Justice according to article 267 TFEU, on the Article 4, comma 2, TEU, Articles 20 and Article 21 TFEU, which states: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”, but also on art. 7, 9, 24 and 45 of the Charter of Fundamental Rights of the European Union.
The Grand Chamber of the CJEU has ruled on the refusal of the Bulgarian public officer to issue the birth certificate of the child, daughter of a British biological mother and a Bulgarian social mother, which precluded the obtaining of an identity document and, consequently, frustrated the child’s right to move within the territory of the European Union[1].
The refusal of the civil registrar of the Municipality of Sofia, as in the Italian cases above described, is based on the public order clause in the Bulgarian State, in the meaning of the domestic public order. The Bulgarian State does not recognize same sex parenthood, nor same sex adoptions, nor same sex marriage, so – according to the public officer – the couple cannot form a legal recognized family abroad and be recognized in the Bulgarian State. Consequently, the Bulgarian officer cannot issue the identity documents for the child, as requested by her social mother, without checking on the request form the box “father” and with a lack of information concerning the identity of the child’s biological parent.
The European Court of Justice says, in contrast with the opinion of the officer, that the Bulgarian State has a duty to issue an identity document to Bulgarian citizens and to the child, born of a Bulgarian mother, regardless of the issue or the transcript of a new birth certificate with the biological parent mention. In this way, the minor can exercise her rights of movement, together with her parents, regardless of their gender and sexual orientation. Otherwise, a national measure that seeks to impede the free movement of persons and – in particular – of minors, on the grounds of the sexual orientation and gender of their parents, can only be justified to protect fundamental rights enshrined in the Treaties and the Charter of Rights.
This is not the case of protection of other fundamental rights of Treaties and the Charter. In the decided case, the obstacle interposed by the State is not functional to the protection of fundamental rights. On the contrary, the alleged application of the limits of internal public policy to the issuance of the document determines an unjustified sacrifice of the rights of the child, provided for in articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union; besides it contrasts with the principle of non-discrimination, with the best interests of the child. It would be contrary to the fundamental rights of the Charter to deprive the child of the relationship with one of her parents in the context of the exercise of her right to move and reside freely on the territory of the Member States or even to make it de factoimpossible or excessively more difficult for her to exercise that right merely because her parents are of the same sex.
The affirmation of the prevalence of the law of the Treaties of the Charter of Fundamental Rights has a peculiarity in the present case: the right to movement brings with it a new and modern meaning of the right to move and reside. The right to movement of persons also becomes the right of movement along with the statuses of which people are legitimate holders, whatever the place where the status is conferred. Therefore, guaranteeing the movement and residence within the Union also means guaranteeing the enjoyment of the rights and relations deriving from the statuses originally acquired by the social formation, independently of the limits of public order present in the states in which the social formation circulates and resides.
Therefore, the Court states that the child must be considered a direct “descendant” of the Bulgarian citizen, even in the absence of a genetic or biological link; similarly, the social mother must be considered a “family member”. On this point, however, the CJEU specifies: this statement is relevant “for the purposes of the exercise of the rights conferred by Article 21(1) TFEU and related secondary legislation”. The court regulates the boundaries within which the pronouncement is relevant: if the general clause of public order does not operate when it is necessary to ensure the freedom to move and reside in the Union with the status acquired abroad, the internal limits come back to operate in other cases and, therefore, for civil purposes.
It is useful to highlight that the European Court of Justice restricted again the public policy clause spectrum of application:
«the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, with the result that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions. It follows that public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society»[2].
The hermeneutic coordinates of the EUCJ have been promptly grasped by a very recent order of the First Civil Section, which has asked the First President of the Supreme Court to refer a series of questions to the United Sections, in order to change the orientation adopted in 2019 on the recognition of the effects of filiation from surrogacy of motherhood abroad, based on a public policy clause interpreted as internal public policy[3].
[1]C-490-20, V.М.А. v Stolichna obshtina, rayon Pancharevo (2021) https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-490/20&jur=C
[2] Coman and Others, 5 June 2018, C‑673/16, § 44, in https://curia.europa.eu/juris/liste.jsf?num=C-673/16
[3] Cass. Civ., SS.UU., 21 January 2022, n. 1842, in https://www.cortedicassazione.it/cassazione-resources/resources/cms/documents/1842_01_2022_oscuramento_no-index.pdf.