"Recognition" of civil status records in the aftermath of Regulation (EU) 2016/1191 on public documents: a new functional identity for EU citizens

Regulation (EU) 2016/1191 sets the objective of ensuring the free movement of persons through the free circulation of public documents establishing “facts” standing for legally defined and relevant situations (name, marriage, parenthood, etc.). As the aim of this Regulation “is not to change the substantive law of the Member States”, the interpreter is confronted with notions whose meaning is liable to vary from State to State. The lack of harmonization of the notions of "marriage" and "parenthood", in particular, re-proposes the characterization problems already encountered with regard to the EU Citizens' Free Movement Directive 2004/38/EC, which includes spouses and direct descendants among the family members, although without providing a definition. Regulation (EU) 2016/1191 is expressly not intended to apply "to the recognition in a Member State of legal effects relating to the content of public documents issued by the authorities of another Member State" (Article 2(4) ). In other words, the document certifying the existence of a marriage or parenthood guarantees the spouse or parent/child of an EU citizen free movement to another Member State, regardless of whether the marriage or parenthood at issue may be recognised in that State. In line with the Regulation, in the 2018 Coman judgment the Court of Justice – applying the principle of mutual recognition - stated that, in the name of the right to free movement, a Member State cannot refuse the EU citizen’s same-sex spouse a right of residence on the ground that the law of that Member State does not provide for marriage between persons of the same sex. Given the limited effects of the recognition of this marriage, the Court has found no evidence of an attack on national identity (Article 4(2) TEU) and consequently of a threat to public order of the Member State concerned. The same conclusion has been reached by the Court of Justice in the 2021 Pancharevo case, regarding a child born through medically assisted procreation. Birth certificate drawn up in a Member State shall be recognized by the other Member States as part of the exercise of the rights under Article 21 TFEU. On the contrary, there is no obligation for other Member States to recognize that filiation relationship for other purposes, since respect for national identity (and public policy) may be invoked in this regard. In summary, the recognition of personal status appears now to be heading towards a double track: with no control for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law, and still subject to the traditional limit of public policy for the purpose of exercising the rights conferred under national law. As a consequence, the same person may be considered married or parent for the purposes of circulation within the EU, while unmarried or not parent for civil purposes. Beyond practical utility, the compatibility of such a split personal identity - one merely functional to circulation, while the other one to its full extent - with the EU Charter of Fundamental Rights principles may be called into question