The Practice of the European Court

Obligations on Member States not Allowing Parenthood for Persons of the Same Sex Regarding the Right to Free Movement of an EU Citizen Child with Parents of the Same Sex

Abstract

Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States requires Member
States, acting in accordance with their laws, to issue to their own nationals an identity card or passport stating their nationality in order that these persons can exercise that right. In this context, in Case C-490/20 Stolichna obshtina, rayon “Pancharevo”, which had been referred to it by the Bulgarian Courts, the Court of Justice was given the opportunity to precise the obligations on Member States not allowing parenthood for persons of the same sex regarding the right to free movement of an EU citizen child with parents of the same sex. By its judgment of 14 December 2021, the Court, on the one hand, ruled that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that
child’s parents two persons of the same sex, the Member State of which that child is a national is obliged to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities. On the other hand, the Court set out that the Member State of which that child is a national is obliged to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.