Il riconoscimento «funzionalmente orientato » dello status di un minore nato da due madri nello spazio giudiziario europeo: una lettura internazionalprivatistica della sentenza Pancharevo

On 14 December 2021, the Court of Justice of the European Union held that the EU Member States are under the duty to recognize, for the purposes of the free movement granted to EU citizens, a birth certificate released by Spain over a parent-child relationship between a minor born in Spain through heterologous artificial insemination and a female married same-sex couple (Pancharevo case). The paper scrutinizes the judgment from a perspective of Private International Law (PIL). The author highlights that the Court of Justice does not establish either the automatic recognition of foreign birth certificates among Member States or the application of the so-called méthode de la reconnaissance. On the contrary, when the EU citizenship is at stake and a cross-border situation falls within the scope of EU law, a Member State is only obliged to guarantee the application of EU law if the national law (including PIL rules) would preclude an EU citizen from exercising his/her rights to move and reside in a Member State. In that regard, such Member State must issue to the child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities. The State concerned has to recognize, as any other Member State, the document from the host Member State that permits that child to exercise, with each mother, his/her right to move and reside freely within the territory of the Member States (function-oriented recognition). The non-recognition of the parent-child relationship in situations involving the exercise of EU free movement rights would also amount to a breach of some fundamental rights protected under the Charter of Fundamental Rights and the Convention on the Rights of the Child. The paper also investigates to which situations the Pancharevo principle is aimed to apply. Finally, the paper explores the concrete legal repercussions of the judgment over the duties of the authorities concerned (civil status officers).