The European Court of Justice (ECJ) delivered a ruling1 that a member state must issue an identity card or a passport to a child who is a national of that member state and whose parents are two persons of the same sex. The member state must recognise the child’s right to move and reside freely within the territory of the European Union (EU) with each of those parents.

The ruling confirms that same-sex parents and their children must not be prevented from exercising their rights that derive from EU law, such as the right to travel freely and take residence in another member state.    

WHY THIS MATTERS

Freedom of movement is one of the fundamental principles in EU law. However, as this case demonstrates, parents of the same sex can experience obstacles that can prevent them from travelling and relocating because a member state does not recognise them as legal parents to their children and refuses to issue travel documentation to their children. These obstacles are now removed.

The ruling has established that when the rights of persons derive from EU law, a member state cannot rely on its own national legislation to derogate from EU law. Irrespective of their national policies, member states must recognise attested parenthood in another member state when the persons are exercising their rights under EU law. 

Background of the Case before the ECJ

parents are Spanish citizens. The U.K. denied citizenship to the child because the British Nationality Act of 1981 does not allow the Gibraltar-born parent to transfer British citizenship to the child. In principle, the child was stateless. 

The parents filed for a Bulgarian ID card where one of the conditions is that there be a birth certificate issued by the Bulgarian authorities.

The parents filed a legalised and certified translation in Bulgarian of the extract from the Spanish civil register relating to the Spanish birth certificate. The Bulgarian authority then requested the parents provide evidence with respect to the identity of the biological mother. The birth certificate in Bulgaria has only one box for the mother and another for the father and in each of the boxes it is possible to insert one name only.

The parents rejected the request and the Bulgarian authorities denied the child’s right to a Bulgarian birth certificate. The rejection from the Bulgarian authority was based on the lack of information about the identity of the biological mother and because two female parents was contrary to Bulgarian public policy that does not allow marriage between persons of the same sex. 

ECJ Findings

The ECJ reminded that according to EU law, all member states are required to issue ID cards or passports to their own nationals stating their nationality. Therefore, the child who is a Bulgarian national must receive an ID card or a passport stating her surname as it appears on the birth certificate drawn up by the Spanish authorities. Such document must enable the child to exercise her right to free movement with each of her parents whose status as parents is established in Spain.

The Spanish authorities have lawfully established that there is a parent-child relationship between the child and her two mothers, which is attested in a birth certificate. This attestation of the parent-child relationship must be recognised by all member states in such a way that the child can exercise her right to free movement and to be accompanied by each of her parents as her primary caregivers when she travels and resides within the EU.    

The Court noted that Bulgaria is not required to provide for the parenthood of persons of the same sex in their own legislation or to recognise the parent-child relationship of the persons in the birth certificate for any other purpose other than the rights which they derive from EU law.       

KPMG NOTE

The ruling of the ECJ in this case removes certain obstacles for the rights of dependent family members in LGBTQ families. If parental status is recognised in the host member state, regardless of whether it is legal or biological, it must be respected by all member states when a person exercises her rights that derive from EU law. Such rights include the right to travel, to take residence in a member state, and to receive social security benefits, among others.  

FOOTNOTE

1  Judgment of the Court of Justice of the European Union: Case C-490/20 Stolichna obshtina, rayon ‘Pancharevo’, (14 December 2021).  

* Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters. 

 

The information contained in this newsletter was submitted by the KPMG International member firm in The Netherlands.

CONTACTS

Connect with us

 

Want to do business with KPMG?

 

loading image Request for proposal

Stay up to date with what matters to you

Gain access to personalized content based on your interests by signing up today

Sign up today

VIEW ALL

GMS Flash Alert is a Global Mobility Services publication of the KPMG LLP Washington National Tax practice. The KPMG name and logo are trademarks used under license by the independent member firms of the KPMG global organization. KPMG International Limited is a private English company limited by guarantee and does not provide services to clients. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

© 2022 KPMG Meijburg & Co., a Netherlands partnership and a member of the KPMG network of independent firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

KPMG International Cooperative (“KPMG International”) is a Swiss entity.  Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm.