In a debate in front of the European Parliament in September 2010, Viviane Reding, then-European Commissioner for Justice, Fundamental Rights and Citizenship, stated: “If you live in a legally-recognised same-sex partnership, or marriage, in country A, you have the right – and this is a fundamental right – to take this status and that of your partner to country B. If not, it is a violation of EU law, so there is no discussion about this. This is absolutely clear, and we do not have to hesitate on this”.
Despite this, more than a decade later, challenges persist for rainbow families’ free movement rights, leading to crucial legal clarifications and advancements in the EU court system. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have tackled multiple cases regarding free movement rights for rainbow families, particularly focusing on issues surrounding same-sex marriage, registered partnerships, and associated rights. Recent CJEU rulings in C-490/20, Pancharevo and C‑2/21, Rzecznik Praw Obywatelskich affirm obligations for EU nations recognizing same-sex parenthood to issue identity documents reflecting both parents and ensure free movement rights for the child and their family. Indeed, the limitations remain that this obligation only applies to parenthood established in a Member State, and that it concerns a single-purpose recognition. Top of Form
In addition, on 6th December 2023, the Commission Notice on ‘Guidance on the right of free movement of EU citizens and their families’ has been released. It reflects the diversity of families and contribute to facilitating the exercise of free movement rights for all families, including rainbow families, supporting national authorities’ rigorous application of free movement rules – irrespective of sexual orientation, gender identity/expression and sex characteristics, in line with the Commission’s LGBTIQ Equality Strategy 2020-2025. Against this background, this post will focus on the legislative landscape in Bulgaria to provide insights on the national interpretation of the free movement rights of rainbow families in EU law.
Bulgarian law does not permit same-sex marriage, and the Bulgarian Constitution stipulates that marriage is a voluntary union between a man and a woman. The absence of specific regulations on same-sex marriages in Bulgaria creates complexities regarding the free movement and residence rights of such families. It is however true that in line with the EU legislation, Bulgarian law, while not recognizing same-sex marriage, regulates the lawful residence of family members of EU citizens.
Zooming into the Bulgarian case law, the trends regarding the free movement of families are similar to the ones in the other European countries. Courts have issued residence permits based on the exercise of free movement rights, adhering to EU directives, even in the absence of specific decisions concerning minors. The jurisprudence further clarifies that national law cannot impede the recognition of marriages validly conducted in other EU countries solely for granting residence rights, while the focus remains on upholding free movement rights without altering national stances on same-sex marriages.
However, distinctions arise between pursuing nationality establishment and invoking free movement rights, as observed in the Pancharevo case. The national decision following the preliminary ruling confirms the need to specifically assert claims on free movement rights, not nationality determinations, for successful outcomes as courts are bound by the issues raised in proceedings, underscoring the importance of framing claims accurately. Therefore, it makes big difference what the initial approach is – if the applicants seek establishment of nationality for the child and issuance of identity documents on that ground (as in Pancharevo), or if they invoke solely the right to freedom of movement of the child and its family, which are substantively distinctive claims. The Pancharevo ruling does not require the Member States to mutually recognize the contents of birth certificates in regard to matters that do not relate to free movement rights, and if the request had concerned indeed the right to free movement on the basis of the child’s being a direct descendant and V.M.A.’s family member, the authorities would not have had grounds to refuse.
If the purpose is indeed to exercise right to free movement, the correct proceeding is therefore not under legal grounds that triggers nationality determination, but under the Law on the entry, residence and departure of the citizens of the European Union and their family members. It is worth to note that before 2019 this avenue was not available for Bulgarian citizens as this instrument used to encompass the citizens of the European Union who are not Bulgarian citizens and their family members. Currently it is effective and clear legislative avenue for family members of Bulgarian nationals, which is applied without any resistance by courts of all instances.
As an example, an advancement for the rights of rainbows families in Bulgaria has been achieved in the Supreme Administrative Court case No. 11558/2018. The Court recognized the gender-neutral interpretation of “husband/wife” under EU law, established in the influential ruling in C-673/16 Coman, acknowledging a same-sex marriage solely for the purposes of free movement and issuing a long-term residence permit for a family member of an EU citizen in Bulgaria. It’s crucial to note that while Bulgarian law doesn’t sanction same-sex marriage due to the constitutional definition, the court rightly clarified that the issue at hand doesn’t pertain to the recognition of same-sex marriages or civil unions within Bulgaria. Instead, it centers on the conditions for a family member of an EU citizen to lawfully reside in Bulgaria:
“Undoubtedly, according to the mentioned provisions of the Bulgarian legislation, persons of the same sex do not have the legal right to enter into a civil marriage in the Republic of Bulgaria. However, the disputed issue in the case is not related to the conclusion of a civil marriage in the Republic of Bulgaria, but to the presence or not of the prerequisites for issuing a permit for a long-term residence of a family member of an EU citizen in the Republic of Bulgaria. […] In this case, it is not about the marital status of the persons, according to the Bulgarian legislation, in which direction the arguments of the defendant are, but about the issuing of a residence permit for a member of the family of an EU citizen.”
The court’s decision explicitly underscores that a Member State cannot cite its national law to deny recognition, solely for the purpose of granting a derived residence right to a third-country national, of a same-sex marriage conducted in another Member State in accordance with its laws:
“It should be emphasized that while for the purposes of assessing whether to qualify as a “family member” the partner with whom the Union citizen entered into a registered cohabitation based on the legislation of a Member State, Article 2, point 2, letter b) of Directive 2004/38 refers to the conditions laid down in the applicable law of the Member State where the Union citizen in question intends to go or reside. Article 2(2)(a) of that Directive does not contain such a reference in relation to the concept of “husband/wife” within the meaning of the Directive. It follows that a Member State cannot invoke its national law to refuse to recognize on its territory, solely for the purpose of granting a derived right of residence to a third-country national, a marriage concluded by him with a Union citizen from the same sex in another member state in accordance with its law”.
It yet holds true that in navigating the path toward ensuring the free movement of rainbow families in Bulgaria, a multifaceted approach is imperative to tackle the limitations explored above. Recognising the right to free movement stricto sensu is often not enough – addressing legal recognition, combating discrimination, and fostering societal acceptance stand as well as crucial steps. Initiatives should aim to reform existing laws to acknowledge diverse family structures, implement comprehensive anti-discrimination measures, and promote education and awareness about LGBTQ+ issues. Additionally, the provision of tailored support services and the cultivation of inclusive environments can significantly contribute to creating a more equitable landscape for rainbow families. While challenges persist, concerted efforts toward legal reforms and societal evolution still hold a promise for more inclusive and accommodating future for rainbow families in Bulgaria, where their rights to free movement and societal integration are respected and upheld, preserving both legal clarity and individual freedoms.
Nadia Rusinova is an Attorney-at-Law and Lecturer in European and International Private Law at the Hague University of Applied Science. This comment reflects the personal views of the author and not the ones of the Project.
Photo credits: Ted Eytan, via Wikimedia Commons (2017)
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