Debate: Legal protection for rainbow families exercising free movement, in particular the Baby Sara case
Date: WEDNESDAY, 23 NOVEMBER 2022
Speaker: Helena Dalli
Language: EN

I start by recalling that, in recent years, the Court of Justice of the EU has issued three landmark decisions on the rights of rainbow families exercising free movement, namely Coman, V.M.A. or the Baby Sara case, and K.S. In this context, the Court delivered major clarifications. It held that while Member States are allowed not to provide in their national legislation for marriages and parenthood of same sex couples, this situation cannot justify a refusal to accept for the purpose of the exercise of rights, derived from EU law, marriages and parenthood established in another Member State, regardless of sexual orientation. You have inquired about the Commission’s action to ensure that EU free movement law is enforced, and that this case law is respected. The implementation of EU law, as interpreted by the Court of Justice, is a Commission’s priority. As stated in the LGBTIQ Equality Strategy, the Commission will continue to ensure the correct application of free movement law, including to address specific difficulties preventing LGBTIQ people and their families from enjoying their rights. The Commission is monitoring the implementation of the Court’s judgment on rainbow families in free movement, and is in dialogue with Member States in this regard. If necessary, the Commission will take legal action. Nonetheless, legal action is neither the only nor the fastest way to achieve results. Furthermore, in the 2020 Citizenship Report, the Commission announced the review of its 2009 guideline guidance for better transposition and application of the Free Movement Directive. The updated Guidance, the drafting of which is at an advanced stage, will take into account the diversity of families and, therefore, help all families exercise their free—movement—related rights. More particularly, the Commission intends to integrate in the updated Guidance relevant elements of the case law on rainbow families in free movement. For instance, that the term ‘spouse’ is gender neutral and includes all spouses and marriages and registered partnerships without exception. As regards children of same—gender parents, exercising free movement rights, where one parent is an EU citizen, all Member States have to recognise the parent—child relationship as established on the birth certificate drawn up by a Member State for purposes related to EU law, regardless of the status of such a relationship in the other Member States. So a Member State must accept certificates attesting to a family relationship issued by the competent authorities of the other Member States. For the purpose of the Free Movement Directive and the exercise of the rights derived from EU law, this acceptance does not require, and cannot be made conditional to, formal recognition by the other Member. As regards the specific situation in Bulgaria, the Commission is monitoring the implementation of the V.M.A. judgment, and is in contact with the Bulgarian authorities, both regarding the individual national proceedings concerning the Baby Sara case, and more generally, the relevant Bulgarian legislation and practice. When it comes to the issues of registration and receipt of a personal identification number, the Commission is analysing the situation in Bulgaria and will ensure any appropriate follow—up. In relation to your question on the issue of mandatory transcription, the Court has made it clear that the Member State of nationality of the child must issue an identity card or a passport, regardless of whether the birth certificate issued by another Member State for the child has been transcribed into the National Register of civil status.  In general, national requirements cannot be relied upon to impede the exercise of the rights derived from EU law by same—gender couples and their children. Additionally, it should be stressed that the Commission has already made use of its available tools, from dialogue to infringement, where its attention has been drawn to national requirements creating difficulties for EU citizens in having their marriage certificates accepted in the context of the exercise of their free movement rights. Finally, it must be clarified that under the existing EU  On that aspect, as announced in the LGBTIQ Equality Strategy, as well as in the 2021 EU strategy on the Rights of the Child, the Commission will present in the coming weeks a proposal for a regulation harmonising the Member States’ rules for the establishment of parenthood in cross—border situations, and for the recognition in a Member State of the parenthood established in another Member State. This will further improve the rights of rainbow families, without taking away the rights that the child already enjoys under Union law, in particular on free movement, including the Directive and the case law which I have referred to earlier.