1- Case of 2 October 2003 , C-148/02 Carlos Garcia Avello v.

Belgium

Mr. Garcia Avello, Spanish, and Mrs. Weber, Belgian were married in Belgium and had 2 children of
Belgian and Spanish nationality (dual nationality). According to Belgian law, children bear the surname
of their father, thus in their birth registration their surname was Garcia Avello. The children had been
registered under the family name Garcia Weber with the consular section of the Spanish Embassy in
Belgium. The parents of the children, as their legal representatives requested the competent authorities
in Belgium to change the surname of their children to Garcia Weber. Their application was rejected, thus
the applicant brought an application for annulment of that decision before Conseil d’Etat, which
referred this question for a preliminary ruling before the Court:

Are the principles of Community law relating to European citizenship and to the freedom of
movement of persons, in Article 20 and 21 TFEU to be interpreted as precluding Belgian authorities
from refusing to change the surname of the minors which reside in Belgium but have dual Belgian and
Spanish nationality, on the ground that the law applicable in Belgium provides that the children bear
the surname of their father?

Legal Basis: Article 20 TFEU on European citizenship and Article 21 TFEU on the right to move and
reside, Belgian civil code

Reasoning of the Court:

The status of the Union is a fundamental status of nationals of MS. That status enables nationals of the
Member States who find themselves in the same situation to enjoy within the scope ratione materiae of
the EC Treaty the same treatment in law irrespective of their nationality.

This case also raises the concern of the infringement of the principle of non-discrimination because two
different situations such as that of children with purely Belgian nationality and those with dual
nationality are treated the same way without any objective justification.

Principle of non-discrimination provides that:

-comparable situations must not be treated differently; Unless it is justified on objective grounds !!!

-different situations must not be treated the same way.

ECJ: Belgian refusal to grant an application for a changed surname of the minors resident in that State
and having dual nationality of that State and another MS, where the purpose is to enable those
children to bear the surname of which they are entitled according to them of the second MS, violated
Article 18 TFEU (non-discrimination on grounds of nationality) and Article 20 TFEU (EU citizenship and
rights of EU citizens.

ECJ Judgment of Carlos Garcia Avello V. Etat Belge/ Columbia Journal of European Law, Vol.11,
2005/Johan Verlinden.
The approach adopted by the ECJ is a functional approach of the conflicts of nationalities and favored
the nationality of the MS which allows the person in question to benefit from the fundamental rights
guaranteed by the Treaty.

This judgment clears that in case of double nationality, both nationalities are equal and the MS should
not favor its own nationality above the nationality of another MS.

Reciting:

Para. 40: the Belgian State submits that the principle of immutability of surnames is a founding principle
of social order, of which it continues to be an essential element.

Para 42: Due to migration within the Union, different national systems for the attribution of surnames
coexist in the same MS, with the result that parentage cannot necessarily be assessed within the social
life of a MS solely on the basis of the criterion of the system applicable to nationals of that latter state.

Para. 44: The disproportionate nature of the refusal by the Belgian authorities.

AG Opinion (para.72): moving and residing freely in the territory of the MS means that that movement
should be free, repeated, continuous within a single ‘area of freedom, security, and justice’ in which
both cultural and diversity and freedom from discrimination are ensured.

Toward European Conflict Rules in Matters of Personal Status/ EDITORIAL 11 MJ 2 (2004)/ Gerard-Rene
De Groot

Garcia Avello’s judgment is revolutionary for developments within the European Union regarding private
international law in respect of family issues.

European citizenship is not intended to extend the scope ratione materiae of the Treaty to internal
situations but a link with Community law exists: nationals of one MS lawfully reside in the territory of
another MS.

Parents should have the possibility to make a choice of law in respect of the determination of the
surname of a child possessing more than one nationality of a MS and this should be possible also in
other cases related to parental recognition, establishment of paternity or adoption for the surname of
children.

What would be a solution?  Harmonization of European conflict and recognition rules in the field of
civil status.

Case C 148/Ä02 Carlos Garcia Avello v. Etat Belge, Judgment of the Full Court of 2 October 2003/
Common Market Law Review 44, 2007/ Thomas Ackermann

Garcia Avello Case in based on the principle that irrespective of its private international law, a MS has to
recognize the personal status conferred upon a Union citizen by another MS.

Propose: Uniform conflict of law rules on personal status

 2- Case of 14 October 2008, C-353/06, Grunkin-Paul

Mr Grunkin and Mrs. Paul are two Germans who got married in Denmark and their child Leonhard
Matthias Grunkin-Paul is born also in Denmark, but he has only German nationality. His parents got
divorced and one of his parents moved to Germany. German law does not recognize his surname
because the surname of a person should be determined by the law of his state nationality and it does
not allow a child to bear a double-barrelled surname composed of the surnames of both the father and
mother. The child’s parents, who have divorced in the meantime, did not use a common married name
and refused to determine the surname of their child, according to German law. The case was brought
before the ECJ by the German national court and the referred question was:

In the light of the prohibition on discrimination provided in Article 18 TFEU and Article 20 on the right
to the freedom of movement for every citizen of the Union, is the German provision on the conflict of
laws valid, in so far as it provides that the law relating to names is governed by nationality alone?

Legal Basis: Articles 18 and 21 TFEU and German private international law.

Reasoning of the Court:

Para. 16: Although rules governing a person’s surname are matters coming within the competence of
the MS, the latter must comply with Community law when exercising that competence.

Para.23: The Court has already held, as regards children with the nationality of two Member States, that
a discrepancy in surnames is liable to cause serious inconvenience for those concerned at both
professional and private levels resulting from, inter alia, difficulties in benefiting, in the Member State of
which they are nationals, from the legal effects of diplomas or documents drawn up in the surname
recognised in another Member State of which they are also nationals. (Garcia Avello, point 36).

Para. 38: there was not any specific reason raised before the Court that might possibly preclude the
recognition of the surname of the child, for example that name was contrary to public policy in
Germany.

ECJ: Article 21 TFEU precludes the authorities of a MS, in applying national law, from refusing to
recognize a child’s surname, as determined and registered in a second MS in which the child was born
and been resident since born, when he and his parents have the nationality of the first MS.

Free Circulation of Names for EU citizen?/ Il Diritto dell’ Unione Europea- 2/2009/ Constanza Honorati

After Konstantinidis and Garcia Avello, the Grunkin-Paul case is a step forward the recognition of names
in EU.

There are some differences between Garcia Avello and Grunkin Paul:

Garcia Avello:
 - Not concrete of actual exercised of the freedom of circulation( the children were not exercising
their right to move but the Court ruled on a potential future infrigment)
- The right to free circulation is linked to the father since children had not yet exercised their
rights.
- The Court was requested to change the surname that the children had used until such time.
- Private International Law remained in the background, since it was irrelevant; solved on the
basis of EU principles of free circulation.
- AG Sharpstone assessed the criterion of nationality firstly, in the light of the EU principle of non-
discrimination and later, after determining that there was no direct discrimination, in the light of
equal treatment.
- Concerned the issue of double nationality

Grunkin- Paul:

- The child had already made use of the freedoms guaranteed to him under EU legal system.
- The holder of the right to the name is the same person holding the rights guaranteed under EU
law.
- The Court is requested to grant recognition of the name that the holder had lawfully received in
a different MS.
- Raises the question whether a national conflict of law rule is compatible with EU law;
national law ><principles of EU law
- There was no issue related to double nationality.

The ECJ considered both these cases analogous and meant to deal in the same way, even though they
involved quite different legal issues.

Recognition of personal status within the EU would rest upon an implicit principle of coordination
among the national legal system by virtue of which, each Ms is obliged to deem as existing certain
subjective legal situations created in different MS; may also involve derogation from the State rules on
conflict of laws.

The Court did not scrutinize the compatibility of conflict of laws rules with EU principles. The ECJ takes
for granted the positive existence of the right to one’s own name and its maintenance and its continuity
throughout EU.

What is in a name? Grunkin-Paul and beyond/Yearbook of Private International Law, Volume 10 (2008),
pp.135-164/ Matthias Lehmann

The ECJ does not provide for any preference for nationality or residence. It did not hold that residence is
to be preferred over nationality as a connecting factor in PIL. Further, the Court seems to be neutral
with regard to conflict of laws.

Through this judgment the Court is vanishing the power of MS over their nationals.
Multiculturalism >< national uniformity

The refusal to register names is justified by ‘no real connection’.

Grunkin and Paul case is one step towards the further common EU citizenship.

Recognition vs. Application of foreign law ?

There is uncertainty regarding the application of foreign law, thus the recognition is the only promising
way to avoid limping relationship.

Regulation by EU legislator  a Directive or Regulation, under the legal basis: Art. 61(c), 65(a)third
index, 65(b) of the EC Treaty.

3- Case of 22 December 2010, C-208/09 Ilonka Sayn Wittgenstein

The applicant (Wittgenstein) is an Austrian citizen. She resides in Germany, where she is estate agent in
the luxury real estate sector and sells in particular stately homes and castles. She was born as Ilonka
Kerekes. At the age of 47, she was adopted by Lothar Fürst von Sayn Wittgenstein in Germany, under
German law. From that moment, she considers herself Ilonka Fürstin von Sayn Wittgenstein, a name
under which she becomes registered in Germany and Austria. After the Austrian constitutional court had
determined that passing on a foreign title of nobility as part of one’s name to an Austrian national by
one’s adoption in Germany (where carrying the title is allowed) is unconstitutional, and Austrian
authorities changed the applicant’s name in civil registry ex office, removing the words: ‘Fürstin von’.
The removal of the noble titles is justified on the ground of the principle of equality. Ivonka disputed the
decision of the Austrian authorities and invoked the right of each European citizen, princess or not, to
freedom of movement as protected by Article 21 TFEU.

Question raised: Does Art. 21 TFEU preclude legislation pursuant to which the competent authorities
of a MS refuse to recognize the surname of an adult adoptee, determined in another MS, in so far as it
contains a title of nobility which is not permissible under the constitutional law of the forms MS?

Reasoning of the Court:

Para. 38: The rules governing a person’s surname and the use of titles of nobility are matters coming
within the competence of the Member States, the latter must comply with EU law, when exercising this
competence.

Para.52: A person’s name is a constituent element of his identity and private life. It is also protected
under Art. 7 of the Charter of Fundamental Rights, and Art. 8 of the European Convention on Human
Rights.

There is a two step test: whether there is restriction and whether that restriction is justified.

Para. 42: Examination in the light of Art.21 TFEU of the refusal by the authorities of a MS to recognize all
the elements of a surname of a national of that State obtained by means of adoption in another MS.
Para 53: National legislation that places certain of the nationals of the MS concerned at a disadvantage
simply because they have exercised their freedom to move and reside in another MS is a restriction on
the freedoms conferred by Art. 21 TFEU.

The case differs from Grunkin and Paul because in the present case only the title of nobility in the
surname won’t be recognized and that would not cause any problems regarding proof of her identity.
(para 64)

Para.71: The Court decides that there is a restriction on the freedoms conferred by Art. 21 TFEU on
every citizen of the Union

Then the Court analyzes whether the restriction would be justified.

Para.74: The Austrian government and the provisions at issue intend to protect the constitutional
identity of the Republic of Austria. The abolition of the titles of nobility is based on the principle of equal
treatment of the citizens before the law. Thus the restriction is justified in the light of the history and
fundamental values of the Rep. of Austria.

Para. 76: recognition of the title in the surname of the applicant would potentially infringe public policy
and would be incompatible with the fundamental values of Austrian Constitution.

Para. 83: The abolition of nobility titles is part of national identity, and it is important to find a balance
between legitimate interests and the right of free movement of persons recognized under EU law. So,
justification is relies on public policy, which should be interpreted strictly, under the control of EU
institutions.

Para. 87: Specific circumstances which may justify recourse to the concept of public policy may vary
from one MS to another and from one era to another. The competent national authorities must be
allowed a margin of discretion within the limits imposed by the Treaty.

Para. 92: According to Art. 4(2) TEU, the EU is to respect the national identities of its MS.

In the case at hand, it does not appear disproportionate for a MS to seek to attain the objective of
protecting the principle of equal treatment by prohibiting the titles of nobility.

ECJ: Article 21 TFEU must be interpreted as not precluding the authorities of a Member State, in
circumstances such as those in the main proceedings, from refusing to recognize all the elements of
the surname of a national of that State, as determined in another Member State, provided that the
measures adopted by those authorities in that context are justified on public policy grounds, that is to
say, they are necessary for the protection of the interests which they are intended to secure and are
proportionate to the legitimate aim pursued.

Respecting Constitutional Identity in the EU/ Common Market Law Review 2012/ Leonard F.M. Besselink

Art.4 (2) TEU: Duty of EU to respect national identities of MS.

National identity: expressions of various religious, linguistic, cultural, aspects of public life, and they in
turn express themselves in political and constitutional structures. These structures then translate into
EU law.

European integration: idea of a unified law, which overcomes disunity and conflict, the principle of effet
utile seemed premised on the notion of the uniform application.

Free movement rights of a citizen under EU law may be restricted on the basis of national identity
measure.

European Community law constitutional norms of MS

ECJ and National constitutional courts sometimes the problem of overlapping

Translation of national constitutional norms into European legal frame is a sort of Vetting

1- ECJ checks on possible abuse.

2- ECJ’s vetting of national constitutional law raises the issue of who is competent to deal with an
issue of constitutional identity in the sense of Art.4(2) TEU.

Cases such as Omega and Wittgenstein: equilibrium between the constitutional orders of EU and MS.

4- Case of 12 May 2011, C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v
Vilniaus

First applicant is a Lithuanian national, born in Vilniaus and she belongs to the Polish minority in the
Republic of Lithuania but does not have Polish nationality. Her parents have her the Polish forename
‘Małgorzata’ and her father’s surname ‘Runiewicz’. According to the birth certificate her
forename and surname were issued in their Lithuanian form ‘Malgožata Runevič’. While, the
Polish certificate her forename and surname are entered in accordance with the rules governing the
spelling of the Polish language, namely as ‘Małgorzata Runiewicz’. The applicants in the main
proceedings state that the competent Polish authorities also issued a marriage certificate on which their
surnames and forenames are entered in accordance with the Polish spelling rules. With regard to the
second applicant, it states that, in its view, the refusal of the Lithuanian authorities to transcribe his
forenames on the marriage certificate in a form which complies with the rules governing Polish spelling
constitutes discrimination against a citizen of the European Union who has entered into a marriage in a
State other than his State of origin. Had the marriage taken place in Poland, his forenames would have
been recorded on the marriage certificate using the same spelling as that used on his birth certificate.
Since, officially, the letter ‘W’ does not exist in the Lithuanian alphabet, the second applicant in the main
proceedings questions why the original spelling of his surname was retained by the Lithuanian
authorities whilst that of his forenames was changed.

The case is brought against Vilniaus Civil Registry Division concerning the refusal to amend the surnames
and forenames of the applicants as they appear in the certificate of civil status which is issued to them.
Questions referred: Do Articles 18 and 21(1) of the TFEU, preclude prohibiting Member States from
providing in national legal rules that forenames and surnames may be written on certificates of civil
status using only the characters of the national language?

Reasoning of the Court:

Para. 63: The ECJ emphasized the competence of the MS over these issues but still to comply with EU
law.

Para. 65: Article 21 TFEU does not provide only for the right to move and reside freely in the territory of
the MS. But, also prohibits any discrimination on grounds of nationality.

Para. 68: Placing a national of a MS at a disadvantage simply because they have exercised their freedom
to move and reside in another MS is a restriction on the freedom conferred by Art.21(1) TFEU.

Para.76: According to the Court case law: in order to constitute a restriction of the freedoms by Art. 21
TFEU the refusal must be liable to cause ‘serious inconvenience’ to those concerned at administrative,
professional and private levels. Thus, national courts decide whether there is a real risk and whether the
refusal by the authorities causes administrative, professional or private problems.

Para. 84: MS ensure that the official national language is protected in order to safeguard national unity
and preserve social cohesion (national identity, national sovereignty, indivisibility of the State).

Para. 86: EU must respect its rich cultural and linguistic diversity (Art.3(3) TEU, Art.22 CFR, and Art.4(2)
TEU: respect for national identity)

ECJ: -Refusal does not constitute a less favorable treatment

- The ECJ left it to the national court to decide whether this rule is liable to cause ‘serious
inconvenience’, to be qualified as a restriction of Art.21 TFEU.
- The Court accepted that the protection of national identity rest upon the national court to
balance the different interests between private and family life of the couple and the protection
of national identity.

Comment on this case/ Common Market Law Review 2012/ Hanneke van Eijken

The case of Sayn Wittgenstein is the first time that the Court referred to Art. 4(2) TEU.

There are at stake the duty to respect national identity of the MS and the interest of free movement of
EU citizens.

What belongs to national identity may vary from one MS to another.

The ECJ has created a de minimis test for the free movement of the Union citizens in this case law. It
took a ‘hands-off approach’ and left it to national courts to decide whether there is a restriction or not.
 5- Case of 8 June 2017, C-541/15 Mircea Florian Freitag

Mr. Pavel is a Romanian national, born in Rumania and the son of two Romanian parents. After the
divorce of his parents, his mother married a German national, Mr. Freitag, who adopted Mr. Pavel. Thus
the latter also got the German nationality and his surname was changed to FREITAG. In 2013 the
applicant changed his surname back to PAVEL, in Romania, while being habitually resident in Germany.
He requested that the changed name to be recognized also under German law.

Question referred: Do Art. 18 and 21 TFEU contain an obligation to recognize a change of name which
has taken place in another MS, although the person concerned was not habitually resident in that MS
(when he has another connection with that MS by virtues of his dual nationality)?

Reasoning of the Court:

Para.36: A refusal by a MS to recognize the name of a national of that State who exercised his right of
free movement in the territory of another MS, as determined in that second MS, is likely to hinder the
exercise of the right, enshrined in Art. 21 of TFEU.

For a national of two MS, having two different surnames in two different MS is a real risk.

Principle of equivalence: MS do not treat matters under EU law less favorably than purely domestic
matters.

Principle of effectiveness: MS do not render impossible or excessively difficult in practice the exercise of
rights conferred by EU legal order.

Para.41: It is for the referring court to assess whether it may itself implement the rights conferred by
Art.21 TFEU and recognize the right to recognition of the name acquired in the circumstances such as
those in the main proceedings.

Para. 44-45: discretion must be exercised by competent authorities in such a way to give full effect to
Art.21 TFEU.

ECJ: Article 21 TFEU must be interpreted as precluding the registry office of a Member State from
refusing to recognize and enter in the civil register the name legally acquired by a national of that
Member State in another Member State, of which he is also a national, and which is the same as his
birth name, on the basis of a provision of national law which makes the possibility of having such an
entry made, by declaration to the registry office, subject to the condition that that name must have
been acquired during a period of habitual residence in that other Member State, unless there are
other provisions of national law which effectively allow the recognition of that name.

The decision of the ECJ differs from the opinion of AG, which took another approach and concluded that
the Art.21 do not preclude national authorities from recognizing the change of name in such
circumstances.

Recognition of personal names after the FREITAG case /

Having different names made it more difficult to potentially travel and reside in different MS.

Infringement in such effects de facto the loss of one of the rights attached to the status of a citizen of
the Union.

The free movement of EU citizens applies even in absence of the cross-border element.

No practical clarity when an administrative procedure complies with principles of equality and efficency.

6- Case of 5 June 2018, C-673/16, Adrian Coman 

Mr. Coman, an American and Romanian national and Mr. Hamilton, an American national, married in
Brussels on 5 November 2010.

In December 2012, Mr.Coman requested information from the Inspectorato on the procedure and
conditions under which Mr. Hamilton, a non-EU national could obtain the right to reside lawfully in
Romania, for more than 3 months.

In January 2013, the request was rejected because 1. Same-sex marriage was not recognized and
2.Extention of Mr. Hamilton right of temporary residence in Romania could not be granted on grounds
of family reunion. The Constitutional Court of Romania brought a preliminary question before ECJ with
regard to interpretation of terms employed in the relevant provisions of DIR 2004/38, read in the light of
the Charter of Fundamental Rights.

Questions referred:

1. Does spouse include same-sex spouses?

2. If yes, do articles of the directive and of the Charter, require the host MS to grant the right of
residence in its territory for more than 3 months?

Reasoning of the Court:

Para. 20: Directive 2004/38 that the directive governs only the conditions determining whether a Union
citizen can enter and reside in Member States other than that of which he is a national and does not
confer a derived right of residence on third-country nationals who are family members of a Union citizen
in the Member State of which that citizen is a national.

Para. 22: The CJEU can provide a full interpretation of EU law, even if the referring court has not
specifically referred to them in the wording of its question.

Para. 23: Third-country nationals, family members of a Union citizen, who were not eligible, on the basis
of Directive 2004/38, for a derived right of residence in the Member State of which that citizen is a
national, could, nevertheless, be accorded such a right on the basis of Article 21(1) TFEU.

Para.30: Union citizenship is a fundamental status of nationals of MS.

Para. 35: Spouse is a gender-neutral term and covers also same-sex spouses.
Para. 41: A restriction to freedom of movement should:

- Based on objective public interest considerations

- Proportionate to a legitimate objective pursued by national law
- Does not go beyond what is necessary to attain that objective.

Justification of restriction: on grounds of public policy (fundamental/constitutional nature of the

institution of marriage) and national identity (Art 4(2) TEU respect the national identity and
fundamental political and constitutional structures)

Public policy is determined unilaterally by each MS but under the control of EU.

The obligation to recognize such marriages for the sole purpose of granting a derived right of residence
to 3rd country national does not undermine the national identity.

Response to first question: Art.21(1) TFEU should be interpreted as precluding the authorities of a MS
of which a Union citizen is a national from refusing to grant that 3 rd country national a right of
residence in the territory of that MS.

Response to second question: In the light of article 21(1) TFEU, a third country national of the same-
sex as a Union citizen, having concluded their marriage in a MS which allows same-sex marriages, has
the right to reside in the territory of the MS of which EU citizen is national. That right cannot be made
subject to stricter conditions than Art.7 of the Directive 2004/38.

Free movement of same-sex spouses within the EU, Coman judgment/ European Law Blog/ Alina
Tryfonidou

Zero balance for MS’s attempts to impose their own views on same-sex marriage in situations falling
within the scope of EU law.

Questions raised concern whether same-sex marriages must be recognized by MS of destination only:

1- When there is an exercise of free movement rights

2- For the purposes of the grant of family reunification rights under EU law.

Recognition of the same-sex marriage only for one purpose would not create anomalous situation
(confusion) to refuse to treat the couple as married for other legal purposes?

The ECJ goes further than ECHR in the Orlando case.

Implications of the judgment: MS will be forced, in practice, to recognize same-sex marriages for all legal
purposes and even in situations not required by EU law.

Wording of “… concluded in a MS in accordance with the law of that State”, will marriages concluded in
the US and Canada not be recognized???!!

Union citizen can claim family reunification on his return to his MS of nationality.
In O. and B., the Court clarifies that such genuine residence can only exist when he/she is settled in
another MS for more than 3 months. This means that a Union citizen who resides in a MS that does not
permit same-sex marriage cannot side-step the law of that state, by moving to another MS to marry and
then return to that State, claiming the right to be recognized as a married couple (on the basis of Coman
case).

The ‘Coman’ case: some reflections from the point of view of Private International Law/written by Dr.iur.
Baiba Rudevska (Latvia)

This article discusses the method used by the ECJ in the judgment of Coman.

The Court uses the word: ‘Recognition of marriage’, which is a terminology used in the Private
International Law. The ‘recognition’ can also be applied in the interpretation of primary legislation but
not secondary legislation.

While, AG uses the term: ‘Autonomous interpretation’, which is used in the terminology of EU law and
International Human Rights Law.

Recognition v. Autonomous interpretation?

The author argues that the ‘Autonomous interpretation’ is the correct terminology to be used in this
case.

Same-Sex Spouses: More freedom of movement, what about marriage?/ Common Market Law Review
2020/ Dimitry Kochenov and Uladzislau Belavusau.

Same-sex couples can be treated differently in MS:

- registered partnership Protected under DIR 2004/38

- unregistered partnership

- non- recognition of same-sex partnership de facto violation of free movement rights

Based on the AG Opinion: national identity cannot be construed independently of the obligation of
sincere cooperation.

The Council is reluctant regarding ‘spouse’ definition.

Public policy + National identity; the Court refused to extend public policy derogations available in EU
primary law to moralistic concerns of the MS.

What Court did was to put in the federal level the fact that it held that single purpose recognition of the
status is for matters of free movements and residence rights.
European Courts and the obligation to partially recognize foreign same-sex marriages, on Orlandi and
Coman/ Yearbook of PIL, volume 20 (2018/2019), pp.47-59/Patrick Kinsch

In Orlandi case: the ECHR ruled that there was legal vacuum in Italy because there was no law that
covers marriage or civil union. After this judgment, Italy enacted the law of civil union.

In Coman case: Freedom of movement of persons is subject to restrictions independently of the

nationality. The restriction must be based on objective public interest considerations proportionate to a
legitimate objective pursued by national law.

Further the Court has emphasized that the recognition for the sole purpose of granting a derived right of
residence to a national of a non- EU state, DOES NOT undermine the institution of marriage or the
national identity of the MS.

PIL perspective:

The Courts have dealt with the cases in terms of substantive terms rather than in terms of the correct
categorization in private international law.

Under the PIL perspective, we can ask to which extent EU law creates an obligation to recognize foreign
marriages independently of the operation of the operation of the national private international law of
the MS.

The Court claims the recognition of the marriage for the sole purpose to reside in EU, but how about
some types of social types of social rights are necessarily linked to the right of residence.

There is a need to find a compromise between: individual rights of EU citizens exercising their right to
freedom of movement and the national identity.

Political Aspect

Europe is far from US Supreme Court approach in Obergefell v. Hodges.

Case note on Coman, You gotta let love move/ Eu Const 15 (2019)/ Jorrit J.Rijpma

The effectiveness of the freedom of movement is undermined when allowing MS to deny recognition to
same-sex marriage.

Non –recognition= restriction, which must be justified by 1. Public Policy or 2. National Identity , it
should also comply with Fundamental Rights provided in the ECHR(right to private life and family life).

This case is situated in the framework of the internal market freedom rather than fundamental rights
issue.

K. Lenaerts: Excluding same-sex spouse from the scope of word ‘spouse’ would be a restriction of
freedom of movement but the Court should scrutinize whether it is justified on a case-by-case basis. This
may result in legal uncertainty and free movement right being interpreted differently across the EU.
The reluctance of the Court to fully engage with the concept of constitutional identity.

CFR offers more protection than the ECHR, e.g. Art. 52(3) of the Charter.Marriage equality is not
universally supported but, still approaches toward it in the EU are much more favorable than within the
much broader Council of Europe. Thus, there is more progressive interpretation of the Charter than the
Convention.

Groundbreaking decision or a tiny tremor? The Court of Justice decision in Coman/EDITORIAL NIPR 2018/
Ian Sumner

Does the ECJ require all MS to recognize civil marriages between same-sex couples concluded in other
MS?

The author discusses also the method used by the Court in this judgment, being recognition of
autonomous interpretation (para. 34 and 35).

Despite using the term ‘recognition’, the Court is actually applying ‘Autonomous Interpretation’.

PIL principle in the field of maintenance rights, e.g. recognition of a maintenance decision from a foreign
jurisdiction does not necessarily entail recognition of the family bond which created the maintenance
right in the first place.

Concerns raised by the author:

- The decision refers to marriages concluded in a MS. Does this exclude marriages concluded in
Norway or South Africa?
- Interpretation: when a Union citizen has exercised his/her free movement rights and acquired a
‘genuine’ residence (more than 3 months) Couples living in a MS do not allow for same sex
marriage cannot profit from this judgment.

7- Case of 26 March 2019, C-129/18, SM v Entry Clearance Officer, UK Visa Section

Mr and Ms M are two French nationals who married in the United Kingdom in 2001. They travelled to
Algeria in 2009 in order to be assessed as to their suitability to become guardians of a child under the
Algerian kafala system. Following that assessment, they were deemed ‘suitable’ to take in a child under
that system.

SM, who was born in Algeria on 27 June 2010, was abandoned by her biological parents at birth. Mr and
Ms M applied for guardianship of SM under the Algerian kafala system. SM was placed in the
guardianship of Mr and Ms M, who were assigned parental responsibility under Algerian law.

In October 2011, Mr M returned to the United Kingdom, where he has a permanent right of residence,
for professional reasons. For her part, Ms M remained in Algeria with SM. In May 2012, SM applied for
entry clearance for the United Kingdom as the adopted child of an EEA national. Her application was
refused by the Entry Clearance Officer on the ground that guardianship under the Algerian kafala system
was not recognised as an adoption under United Kingdom law and that no application had been made
for intercountry adoption. SM did not satisfy the conditions to be regarded as an adopted child under
the United Kingdom rules on immigration or as a family member, an extended family member or the
adopted child of an EEA national within the meaning of the 2006 Regulations.

Question raised before ECJ by the Supreme Court of the UK:

- Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under
kafala or some equivalent arrangement provided for in the law of his or her country of origin,
a ‘direct descendant’ within the meaning of Article 2(2)(c) of Directive 2004/38?
- Can other provisions in the Directive, in particular Articles 27 and 35, be interpreted so as to
deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at
risk of such?
- Is a Member State entitled to enquire, before recognising a child who is not the
consanguineous descendant of [a citizen of the Union] as a direct descendant under Article
2(2)(c), into whether the procedure for placing the child in the guardianship or custody of that
[citizen of the Union] was such as to give sufficient consideration to the best interests of that
child?’

Reasoning of the Court:

Para. 45: under Algerian law kafala is where an adult undertakes to assume responsibility for the care,
education and protection of a child, in the same way a parent would for their child, and to assume legal
guardianship of that child. Unlike adoption, which is prohibited by Algerian law, the placing of a child
under kafala does not mean that the child becomes the guardian’s heir. In addition, kafala comes to an
end when the child attains the age of majority and may be revoked at the request of the biological
parents or the guardian.

Para. 46: ‘direct descendant’ referred to in Article 2(2)(c) of Directive 2004/38 requires there to be a
parent-child relationship, either biological or adoptive, between the child and the citizen of the Union.

Para. 51: Directive 2004/38 does not contain any definition of the concept of a ‘direct descendant’ for
the purposes of Article 2(2)(c) thereof. In those circumstances, according to the settled case-law of the
Court, in interpreting that provision of EU law, it is necessary to consider not only its wording, but also
the context in which it occurs and the objectives pursued by the rules of which it is part.

Para. 52: A ‘direct descendant’ commonly refers to the existence of a direct parent-child relationship
connecting the person concerned with another person. Where there is no parent-child relationship
between the citizen of the Union and the child concerned, that child cannot be described as a ‘direct
descendant’ of that citizen for the purposes of Directive 2004/38.

Para. 54: ‘Direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38
must be understood as including both the biological and the adopted child of such a citizen, since it is
established that adoption creates a legal parent-child relationship between the child and the citizen of
the Union concerned. Placing of a child under the Algerian kafala system does not create a parent-
child relationship between the child and its guardian, a child, such as SM, who is placed in the legal
guardianship of citizens of the Union under that system cannot be regarded as a ‘direct descendant’ of
a citizen of the Union for the purposes of Article 2(2)(c) of Directive 2004/38.

Para. 64: Each Member State has a wide discretion as regards the selection of the factors to be taken
into account, provided that their legislation contains criteria which are consistent with the normal
meaning of the term ‘facilitate’ used in Article 3(2) of Directive 2004/38 and which do not deprive that
provision of its effectiveness. However, that discretion must, having regard to recital 31 of Directive
2004/38, be exercised in the light of and in line with the provisions of the Charter of Fundamental Rights
of the European Union.

ECJ: The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of
Directive 2004/38 must be interpreted as not including a child who has been placed in the permanent
legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement
does not create any parent-child relationship between them; – however, it is for the competent
national authorities to facilitate the entry and residence of such a child as one of the other family
members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of
Article 7 and Article 24(2) of the Charter, by carrying out a balanced and reasonable assessment of all
the current and relevant circumstances of the case which takes account of the various interests in play
and, in particular, of the best interests of the child concerned. In the event that it is established,
following that assessment, that the child and its guardian, who is a citizen of the Union, are called to
lead a genuine family life and that that child is dependent on its guardian, the requirements relating
to the fundamental right to respect for family life, combined with the obligation to take account of
the best interests of the child, demand, in principle, that that child be granted a right of entry and
residence in order to enable it to live with its guardian in his or her host Member State.

Guardianship, free movement and the rights of the child: the SM judgment/ EU Law Analysis, 2019/
Steve Peers

The SM case: intersection between EU free movement law and family law of the non-EU countries.

EU citizen’s family members: have a right to enter and reside

EU citizen’s extended family member: entry and residence has only to be facilitated by MS

Art. 3(2) of the DIR is not directly effective.

‘Direct descendant’: interpretation not only considering its wording but also the context in which it
occurs and objectives pursued by the rule which it is part of. It covers biological and adoptive child-
parent relationship, but does not include grand-children, nor guardianship relationship.

The aim of the DIR is to facilitate free movement rights, and it should be construed broadly.

Free movement law – family law

The judgment raises the question of whether there might be reduced discretion to refuse entry in other
extended family cases too, notably cases involving children or partners and where the impact of refusal
might be to prevent free movement rights from being exercised.

8- Case of 14 December 2021, C-490/20, Pancharevo case

V.M.A is a Bulgarian national married with K.D.K a UK national. In December 2019, they had a daughter,
S.DK.A, born in Spain. A birthday certificate according to Spanish law was issued by Spanish authorities.
Both women were mentioned in the certificate as ‘mother’ of the child. In January 2020, they made an
application to the competent Bulgarian authorities to issue a birth certificate for her daughter. Bulgarian
authorities asked them: which of two spouses is the biological mother to put it in the certificate. The
women refused to response as they consider themselves both mother of the child, so they refused to
supply the requested information. Thus, Bulgarian authorities rejected to provide such document
because it is contrary to the public policy of Bulgaria to recognize and provide for same-sex parentage.

The question referred: How to strike a balance of interests between on the one hand, the national
identity and constitutional identity of a MS and on the other hand, the best interests of the child?

Para. 43: Under Article 21(1) TFEU, every citizen of the Union is to have the right to move and reside
freely within the territory of the Member States, subject to the limitations and conditions laid down in
the Treaties and by the measures adopted to give them effect. In order to enable their nationals to
exercise that right, Article 4(3) of Directive 2004/38 requires Member States, acting in accordance with
their laws, to issue to their own nationals an identity card or passport stating their nationality.

Para. 45: Article 4(3) of Directive 2004/38 requires the Bulgarian authorities to issue an identity card or a
passport to S.D.K.A. regardless of whether a new birth certificate is drawn up for that child. Thus, in so
far as Bulgarian law requires a Bulgarian birth certificate to be drawn up before a Bulgarian identity card
or passport is issued, that Member State cannot rely on its national law as justification for refusing to
draw up such an identity card or passport for S.D.K.A.

Para. 46: That document must enable the child to exercise the right to move and reside freely within the
territory of the Member States, guaranteed in Article 21(1) TFEU, with each of the child’s two mothers,
whose status as parent of that child has been established by their host Member State during a stay in
accordance with Directive 2004/38.

Para. 47: Nationals of Member States enjoy under Article 21(1) TFEU include the right to lead a normal
family life, together with their family members, both in their host Member State and in the Member
State of which they are nationals when they return to the territory of that Member State

Para. 48: Pursuant to Article 21 TFEU and Directive 2004/38, as parents of a Union citizen who is a
minor and of whom they are the primary carers, be recognised by all Member States as having the right
to accompany that child when her right to move and reside freely within the territory of the Member
States is being exercised.
Para. 49: the Bulgarian authorities are required, as are the authorities of any other Member State, to
recognize that parent-child relationship for the purposes of permitting S.D.K.A. – since she has,
according to the referring court, acquired Bulgarian nationality – to exercise without impediment, with
each of her two parents, her right to move and reside freely within the territory of the Member States
as guaranteed in Article 21(1) TFEU.

Para. 52: In that regard, as EU law currently stands, a person’s status, which is relevant to the rules on
marriage and parentage, is a matter that falls within the competence of the Member States and EU law
does not detract from that competence. The Member States are thus free to decide whether or not to
allow marriage and parenthood for persons of the same sex under their national law. Nevertheless, in
exercising that competence, each Member State must comply with EU law, in particular the provisions
of the FEU Treaty on the freedom conferred on all Union citizens to move and reside within the territory
of the Member States, by recognizing, for that purpose, the civil status of persons that has been
established in another Member State in accordance with the law of that other Member State

Para. 56: , the obligation for a Member State to issue an identity card or a passport to a child who is a
national of that Member State, who was born in another Member State and whose birth certificate
issued by the authorities of that other Member State designates as the child’s parents two persons of
the same sex, and, moreover, to recognize the parent-child relationship between that child and each of
those two persons in the context of the child’s exercise of her rights under Article 21 TFEU and
secondary legislation relating thereto, does not undermine the national identity or pose a threat to the
public policy of that Member State.

Para. 57: Such an obligation does not require the Member State of which the child concerned is a
national to provide, in its national law, for the parenthood of persons of the same sex, or to recognise,
for purposes other than the exercise of the rights which that child derives from EU law.

Para 68: A child, being a minor, whose status as a Union citizen is not established and whose birth
certificate, issued by the competent authorities of a Member State, designates as her parents two
persons of the same sex, one of whom is a Union citizen, must be considered, by all Member States, a
direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the
exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto.

This case is different from:

- Coman: because it is linked to the method establishing the parentage of a Bulgarian national,
relates to two persons of the same-sex being recognized as mothers of a child of Bulgarian
nationality.
- Grunkin-Paul: because the present case is different in nature and has for greater consequences
at the level of family and inheritance law. It also does not raise the question of compliance with
Art. 4(2) TEU.

EAPIL Blog/ Nadia Rusinova

Issues raised by her:

- Recognition of a foreign civil status, which falls under the scope of PIL
- Registration these two fall under the administrative services
- Issuance of civil status certificates

EU law and the mutual recognition of parenthood/ David A.J.G De Groot

ECtHR: Contracting States have wide margin of discretion where it concerns rules on ‘establishing
status’. Recognizing a status (case concerned), the margins are narrower.

Art.4(2) TEU: Any justification on its basis should be fist assessed in its compatibility with human rights;
cannot rely on national provisions that violate humans rights.

Birth certificate to protect the best interests of the child (prevent child trafficking) not a matter of
national identity but of international requirement.

AG raises two hypothesizes for the child:

- The child has the Bulgarian nationality  violation of Art.21 TFEU and Art.45 of the CFR
- The child has not acquired Bulgarian nationality violation of Art.20 TFEU

For the Bulgarian mother violation of Art.21 TFEU and Art.45 CFR.

1- Clashing claims:
- The referring Court states that the parentage cannot be recognized, while,
- It states that the child is a Bulgarian national.

If the State has not previously recognized the parentage (the only way to acquire it was iure
sanguinis a mater) how is it possible that the child is considered a Bulgarian national????

2- Preliminary reference does not mention Art.21(1) CFR

3- This case concerns ‘parentage recognition’ not ‘establishment’ as it is provided in the wording of
the reference.