THE latest Pancharevo judgment of the Court of Justice of the European Union (Judgment of 14 December 2021, V.M.A. v Stolichna obshtina, rayon “Pancharevo”, C-490/20, ECLI:EU:C:2021:1008) was delivered against the backdrop of increasing tensions between the EU and certain Member States with regard to legal recognition of same-sex families. Currently, 23 out of 27 EU Member States afford some form of legal recognition to same-sex unions, and 13 out of those have opened up marriage to same-sex couples. However, going in the opposite direction, Hungary, Croatia and Slovakia amended their respective constitutions in the early 2010s to define marriage as the union “between a man and a woman”, while in 2021 the EU Commission took legal action against regions in Poland that declared themselves “LGBT-free zones” and against Hungary for banning the “promotion” of homosexuality or gender re-assignment to minors. The EU Commission threatened to withhold funds and stated that “equality and the respect for dignity and human rights are core values of the EU, enshrined in Article 2 of the Treaty of the European Union”.

This context was reflected in the court's reasoning in the Pancharevo case, which concerned cross-border recognition of same-sex parenthood. The court had to strike a balance between the rights enshrined in the EU founding treaties and the EU Charter of Fundamental Rights on the one hand, and respect for the national identities of Member States under Article 4(2) TEU on the other. The case involved a married same-sex couple residing in Spain, V.M.A., a Bulgarian national, and K.D.K., a UK national. In December 2019, their daughter S.D.K.A. was born in Spain, with the two women both named as mothers on her birth certificate. V.M.A. sought to have an identity document issued for her child in her native Bulgaria, for which a Bulgarian birth certificate was necessary. Bulgarian authorities refused to issue a birth certificate based on the Spanish birth certificate submitted by V.M.A., citing public policy grounds (as same-sex marriage is not legal in Bulgaria), unless she disclosed which one of the two women was the child's biological mother, which V.M.A. refused to do. V.M.A. then took her case to the Bulgarian administrative courts, which referred the matter to the CJEU for a preliminary ruling. While Bulgaria did not contest the fact that the child had Bulgarian nationality and thus EU citizenship, the main question was whether by declining to issue her a birth certificate and subsequently an identity document Bulgarian authorities infringed the child's right to free movement and thus full enjoyment of her rights as a Union citizen.

The court found that under Article 4(3) of Directive 2004/38 Bulgaria was obliged to issue an identity document and was not able to rely on the requirements of its own national law as justification for refusing to do so. Since the identity document was pivotal for the child to exercise her right to free movement, Bulgaria's refusal infringed on her fundamental rights under Articles 20(1) and 21(1) TFEU. Notably, the court explained that the EU citizens’ right to free movement includes “the right to lead a normal family life, together with their family members” (Pancharevo, at 47) either in a host Member State or upon return to their Member State of origin. Accordingly, even though the court clarified that Member States are free to decide whether or not to allow same-sex marriage and parenthood under their national law, they should do so in accordance with EU law, by recognising the civil status of persons that has been established in another Member State for the purposes of free movement (at [52]). It also noted the importance of the right to respect for private and family life under Article 7 of the Charter and the rights of the child under Article 24, especially the child's best interests as a primary consideration (at [57]).

This conclusion is in line with the court's Coman judgment in 2018 (Judgment of 5 June 2018, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, C-673/16, ECLI:EU:C:2018:385). That landmark case, where the court ruled that Romania could not rely on its domestic legislation to refuse the right of residence to the same-sex spouse of a Union citizen under EU law, was widely understood as having the potential to propel forward legal recognition of same-sex relationships across the EU Member States. This has been confirmed now that the court has consolidated that approach in the Pancharevo case, where it reiterated its findings that “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 went on to explain that Bulgaria's obligation to issue an identity document to the child, much like Romania's obligation to recognise Mr. Coman's same-sex spouse's right of long-term residence, did not require Member States to recognise same-sex parenthood (or, respectively, same-sex marriage) generally, but solely for the purposes of the exercise of rights derived from EU law.

Even though the question was carefully framed and answered by the court within the limited scope of compliance with EU law, its ruling that there is an obligation to recognise same-sex parenthood inevitably runs deeper. As the Advocate General put it in her Opinion, “in any event, the Court will have to answer the question whether EU law requires a Member State to recognise, for the purpose of issuing a birth certificate, that a married couple who are women are the parents of a child, as determined in a public document issued by another Member State, or whether, on the contrary, that first Member State is free to determine parentage in accordance with its national law where that entails recognising only one woman as the mother” (Opinion of Advocate General Kokott delivered on 16 July 2015, ECLI:EU:C:2015:498, at [40]). It is hard to imagine how recognition of the parent-child relation for the purpose of issuing a birth certificate to facilitate free movement will not spill over into other areas of domestic law. The opposite would create a two-tier parenthood system and produce inconsistencies within Bulgarian domestic law if, as the case may be, that parent-child relationship is later invoked in other areas of law such as healthcare, exercise of parental responsibility, inheritance, tax law etc. – and especially if invoked in conjunction with the exercise of free movement. This is particularly significant in light of the court's understanding that the right to free movement includes the right to lead “a normal family life”, as explained above, which can be construed as encompassing more than simply the right to enter and remain within a Member State (see A. Tryfonidou, “The Cross-Border Recognition of the Parent-Child Relationship in Rainbow Families under EU Law: A Critical View of the ECJ's V.M.A. ruling”, 21 December 2021, available at https://europeanlawblog.eu/2021/12/21/the-cross-border-recognition-of-the-parent-child-relationship-in-rainbow-families-under-eu-law-a-critical-view-of-the-ecjs-v-m-a-ruling/).

The Pancharevo case should instead be viewed not as addressing a purely technical issue of the scope of Directive 2004/38, but within the strained relationship between the EU's official stance on full respect for LGBT+ rights, and the pushback from specific EU Member States that view this as an unwelcome external influence which runs contrary to their traditional values. This touches upon the sensitive issue of the boundaries between responsibilities arising from the mutual trust and common values framework established between Member States and invoking public policy as a means of evading those responsibilities. An obiter dictum by the Advocate General might point us to the overarching theme at hand: in her Opinion, she remarked that “the concept of national identity cannot be interpreted in the abstract at European Union level” (at [72]). The question underlying the Pancharevo judgment should thus be reframed in more clear terms: has respect for LGBT+ rights gained enough ground to be considered as part of the fundamental values that make up the European project, especially as the Union has gradually moved from a purely economic union to an increasingly political and human rights union?

In its judgment, the court seems hesitant to answer this question in the affirmative, instead confining itself to a compartmentalised understanding of EU law as clearly demarcated from domestic law. However, the Pancharevo judgment has built further on the momentum of Coman, one that leads towards recognition of LGBT+ rights as part of EU core values that all Member States must respect. In her 2020 State of the Union Address, President von der Leyen famously remarked “if you are parent in one country, you are parent in every country”. A few months later, the EU Commission was already pushing forward with its initiative on a Regulation on cross-border recognition of parenthood between Member States. With its milestone judgment in Pancharevo, the CJEU has played its own part in facilitating EU-wide recognition of same-sex parenthood and further paved the way for the Commission proposals.