Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 7 May 2024 (1)
Case C‑4/23 [Mirin] (i)
M.-A.A.
v
Direcţia de Evidenţă a Persoanelor Cluj, Serviciul stare civilă
Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date din Ministerul Afacerilor Interne,
Municipiul Cluj-Napoca,
Interveners:
Asociaţia Accept,
Consiliul Naţional pentru Combaterea Discriminării
(Request for a preliminary ruling from the Judecătoria Sectorului 6 Bucureşti (Court of First Instance, Sector 6, Bucharest, Romania))
(Reference for a preliminary ruling – Citizenship of the Union – Article 21(1) TFEU – Right to move and reside freely in the Member States – National residing in the United Kingdom holding the nationality of that State and of a Member State – Refusal by the authorities of the latter State to record in his birth certificate changes of first name and gender lawfully obtained in the former State – National legislation permitting the amendment of a civil status document only on the basis of a final judicial decision – Impact of the withdrawal of the United Kingdom from the European Union)
I. Introduction
1. This request for a preliminary ruling concerns the interpretation of Article 2 TEU, Articles 18, 20 and 21 TFEU and Articles 1, 7, 20, 21 and 45 of the Charter of Fundamental Rights of the European Union. (2)
2. The request has been made in a dispute between a Romanian national and the national authorities of that Member State responsible for civil registers and management of the personal numeric code (3) on account of their refusal to recognise and enter in his birth certificate his new first name and his gender identity (4) acquired (5) in the United Kingdom, of which he is also a national.
3. This case gives the Court an opportunity to clarify the purport of its decisions concerning recognition of the personal status of citizens of the Union, based on Article 21 TFEU, within the limits of the competence of the Member States in relation to the civil status of persons.
II. Legal framework
A. Withdrawal Agreement
4. The fourth and eighth paragraphs of the preamble to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, (6) which was adopted on 17 October 2019, entered into force on 1 February 2020 and was approved by Council Decision (EU) 2020/135 of 30 January 2020, (7) state:
‘Recalling that, pursuant to Article 50 TEU, in conjunction with Article 106a of the Euratom Treaty, and subject to the arrangements laid down in this Agreement, the law of the Union and of Euratom in its entirety ceases to apply to the United Kingdom from the date of entry into force of this Agreement,
…
Considering that it is in the interest of both the Union and the United Kingdom to determine a transition or implementation period during which … Union law, including international agreements, should be applicable to and in the United Kingdom, and, as a general rule, with the same effect as regards the Member States, in order to avoid disruption in the period during which the agreement(s) on the future relationship will be negotiated’.
5. Under Article 126 of the Withdrawal Agreement, entitled ‘Transition period’, which appears in Part Four of that Agreement (‘Transition’):
‘There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.’
6. Article 127 of that Agreement, entitled ‘Scope of the transition’, provides, in the first subparagraph of paragraph 1 and paragraph 6:
‘1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.
…
6. Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.’
B. Romanian law
7. Article 9 of Legea nr. 119/1996 cu privire la actele de stare civilă (Law No 119/1996 on civil status documents) (8) of 16 October 1996 (‘Law No 119/1996’), in its version applicable to the dispute in the main proceedings, is worded as follows:
‘In the event that the civil registrar or the official performing civil status functions refuses to draw up a document or to record an entry falling within his or her competence, the injured party may bring proceedings before the court having jurisdiction, in accordance with the law.’
8. Article 43 of that law provides:
‘In birth certificates, and, where applicable, in marriage or death certificates, entries regarding changes in a person’s civil status shall be recorded in the following cases:
…
(f) change of name;
…
(i) change of sex, after a final judicial decision.’
9. Under Article 57(1) of that law:
‘Civil status documents and entries recorded therein may be annulled, supplemented or amended only pursuant to a final judicial decision.’
10. Under Articles 1, 2 and 10 et seq. of Law No 119/1996, the authorities responsible for civil registers are to issue birth, marriage or death certificates on the basis of the civil status documents held by them without reproducing them in full.
11. Article 4(2)(l) of Ordonanța Guvernului nr. 41/2003 privind dobândirea și schimbarea pe cale administrativă a numelor persoanelor fizice (Government Order No 41/2003 relating to the acquisition and change of names of natural persons by administrative means) (9) of 30 January 2003 stated:
‘Requests to change name shall be considered to be justified in the following cases:
…
(l) where the person has obtained approval for a change of sex by a final and irrevocable judicial decision and requests to bear a name corresponding to that sex, presenting a medical/legal document indicating his or her sex.’
12. Article 131(2) of the methodology approved by Hotărârea Guvernului nr. 64/2011 pentru aprobarea Metodologiei cu privire la aplicarea unitară a dispozițiilor în materie de stare civilă (Government Decision No 64/2011 approving the methodology concerning the uniform application of provisions on civil status) of 26 January 2011 is worded as follows:
‘The personal numeric code shall be assigned on the basis of the data entered in the birth certificate relating to sex and date of birth.’
13. That personal numeric code is entered in civil status documents. (10)
14. Under the Romanian rules on the issue of identity cards and passports, (11) the surname, first name, sex and personal numeric code of the holders are to be entered in those documents. Changes to those data made abroad cannot have effects in Romania without prior registration by the civil status services upon the issue of either a passport, in the case of a change of surname or first name, or an identity card, in the case of amendment of data relating to civil status. Under Article 19(i) of Emergency Government Order No 97/2005, the public service responsible for records of persons is to issue a new identity document in the case of a change of sex.
C. United Kingdom law
15. Under section 2(1) and section 3 of the Gender Recognition Act 2004, in its version applicable to the dispute in the main proceedings, (12) a person who is aged at least 18 and who is seeking legal recognition of the gender which he or she has declared must apply to a gender recognition panel, which examines the evidence provided by him or her in order to obtain a Gender Recognition Certificate. (13) The evidence is, first, a diagnosis of gender dysphoria by a medical practitioner or a psychologist specialising in that field and, second, a statutory declaration that the person has lived in the acquired gender for at least two years and that he or she intends to continue to live in the acquired gender for the rest of his or her life.
16. Section 9(1) of the act provides that the issue of a full GRC implies full recognition for all purposes of the gender acquired by the applicant. However, it may not be used as a means of identification. (14)
17. Under the Enrolment of Deeds (Change of Name) Regulations 1994, (15) a Commonwealth citizen may change his or her surname or first name by making a simple declaration, known as a deed poll, which can be enrolled, for persons aged at least 18, at the registry of the High Court of Justice (England & Wales), King’s Bench Division (United Kingdom). In that case it is advertised in The London Gazette. That enrolment is not mandatory and proof of change of name can be given by any means offered by the law.
III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling
18. The applicant, (16) a Romanian national, was registered as female at birth on 24 August 1992 in Cluj-Napoca (Romania).
19. After having moved to the United Kingdom with his parents in 2008, the applicant obtained British nationality by naturalisation on 21 April 2016. Since then, he has held dual Romanian and British nationality.
20. On 21 February 2017, the applicant changed his first name and title from female to male using the deed poll procedure.
21. After the completion of that procedure, he had certain official documents issued by the United Kingdom authorities changed, namely his driving licence and his passport.
22. On 29 June 2020, the applicant obtained a ‘Gender Recognition Certificate’ (GRC), a document confirming his male gender identity, in the United Kingdom.
23. In May 2021, on the basis of the two documents obtained in the United Kingdom, the deed poll and the GRC, the applicant requested the Cluj Civil Status Service to record in his birth certificate entries relating to his change of first name, sex and personal numeric code so as to reflect the male sex and to issue him a new birth certificate including those new particulars.
24. Because of the refusal by that service, the applicant made the same requests, on 14 September 2021, to the Judecătoria Sectorului 6 Bucureşti (Court of First Instance, Sector 6, Bucharest, Romania), the referring court, in an action brought against the Cluj Civil Status Service, the Directorate for Records of Persons and Management of Databases of the Ministry of the Interior and the Municipality of Cluj-Napoca.
25. The applicant asserts that he is asking the referring court to order that his birth certificate be brought into line with his gender identity, which has been definitively recognised in the United Kingdom. He is seeking the direct application of EU law, in particular the right of every citizen of the Union to move and reside freely within the territory of the European Union, so that he is able to exercise that right unhindered by holding a travel document that reflects his male gender identity. In his view, the obligation to bring new judicial proceedings in Romania directly seeking authorisation of the change of sex exposes him to the risk that the outcome of those proceedings will be contrary to the outcome before the United Kingdom authorities, as the European Court of Human Rights (17) has ruled that the procedure in Romania lacks clarity and foreseeability. (18)
26. The defendant Romanian authorities contend that the action seeks to obtain recognition of his new personal societal status resulting from changes made abroad. However, under Article 43(i) of Law No 119/1996, entries regarding changes in civil status are to be recorded in birth certificates, in the case of change of sex, on the basis of a final judicial decision.
27. The Consiliul Naţional pentru Combaterea Discriminării (National Council for Combating Discrimination, Romania) has been called upon to intervene in the case and the ancillary application made by Asociația Accept (Accept Association) for leave to intervene in support of the applicant has been granted.
28. The referring court, first, makes reference to the relevant case-law of the Court of Justice, in particular the judgments of 2 October 2003, Garcia Avello; (19) of 14 October 2008, Grunkin and Paul; (20) of 8 June 2017, Freitag; (21) and of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, (22) and, second, expresses doubts regarding the conformity of the national rules with the rights attached to citizenship of the Union in so far as they require the person concerned to bring new judicial proceedings in one of the Member States of which he is a national, even though he has already successfully completed proceedings in another Member State of which he is also a national, regardless of whether the proceedings in the latter State are of an administrative or a judicial nature.
29. Lastly, that court states that the outcome of the dispute in the main proceedings also depends on determining the consequences of the withdrawal of the United Kingdom from the European Union. In particular, if its first question is answered in the affirmative, it would be necessary to clarify whether a Member State is obliged to recognise the legal effects of a procedure for changing gender carried out in a State which was a Member State at the time the procedure was commenced but which had already left the European Union at the time that procedure was completed.
30. In these circumstances, the Judecătoria Sectorului 6 București (Court of First Instance, Sector 6, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the fact that Article 43(i) and Article 57 of [Law No 119/1996] do not recognise changes in civil status made in another Member State by means of the procedure for legal recognition of gender to entries concerning gender and first name by a transgender man who has dual nationality (Romanian and of another Member State) and require a Romanian citizen to bring, from the outset, separate judicial proceedings in Romania against the local Public Service for Personal Records and Civil Status – proceedings which have been held to lack clarity and foreseeability by the [ECtHR] ([judgment in X and Y v. Romania]) and which may lead to a decision contrary to that taken by the other Member State – constitute an obstacle to the exercise of the right to European citizenship (Article 20 [TFEU]) and/or the right of citizens of the Union to move and reside freely (Article 21 [TFEU] and Article 45 of [the Charter]) in conditions of dignity, equality before the law and non-discrimination (Article 2 [TEU]; Article 18 [TFEU], and Articles 1, 20 and 21 of [the Charter]), respecting the right to private and family life (Article 7 of [the Charter])?
(2) Does the departure of the [United Kingdom] from the European Union affect the answer to the above question, in particular where (i) the procedure for changing civil status was commenced before Brexit and was completed during the transition period, and (ii) the impact of Brexit means that the person cannot benefit from rights attached to European citizenship, including the right to free movement and residence, except on the basis of Romanian identity or travel documents in which that person appears with a female gender and first name, contrary to the gender identity that has already been legally recognised?’
31. The applicant and Accept Association, the Municipality of Cluj-Napoca, the Romanian, German, Greek, Hungarian, Netherlands and Polish Governments and the Commission submitted written observations. The applicant and Accept Association, the German, Hungarian, Netherlands and Polish Governments and the Commission responded to questions for oral answer put by the Court at the hearing held on 23 January 2024.
IV. Analysis
32. The request for a preliminary ruling concerns a request seeking to have a change of first name and gender entered in a birth certificate on the basis of documents registered in the United Kingdom, one before that State left the European Union and other before the end of the transition period provided for in the Withdrawal Agreement. The applicant, a national of the United Kingdom, where he resides, and of Romania, where he was born, asserts that the drawing up of a travel document reflecting his gender identity will allow him to exercise his right to move and reside freely within the European Union as a citizen of the Union.
33. The referring court thus asks, first, about the validity under EU law of the refusal to recognise in respect of a citizen of the Union, for the purposes of updating his birth certificate, changes of his identity obtained in a State in which EU law was applicable at the time. Second, it wishes the Court to clarify the consequences of the withdrawal of the United Kingdom from the European Union.
A. The link with EU law of the situation in which a citizen of the Union requests that his gender identity be entered in his birth certificate
34. As EU law stands at present, there is no legislation or case-law governing matters relating to the updating, in the Member State of birth of a citizen of the Union, of particulars in civil status documents relating to sex or gender identity on the basis of documents drawn up or decisions taken in another Member State.
35. It should be noted, first, that none of the regulations relating to civil cooperation is applicable. The status of persons is expressly excluded from the scope of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (23) which has been the case since the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. (24) Nor does not the subject matter of the dispute fall within the scope of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. (25)
36. In addition, although the EU legislature has taken steps to facilitate the circulation of civil status documents, it has not addressed their effects, as is clear from the title of Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012. (26) That regulation, one of the legal bases for which is Article 21(2) TFEU, provides for multilingual forms and a general exemption from legalisation within the European Union. The updating of national civil status records is not addressed, even though it had been in Section 4 of the Commission Green Paper ‘Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records’. (27)
37. Second, the Court’s settled case-law relating to civil status concerns only the surname and the first name entered on civil status documents. The Court ruled that although the rules relating to the way in which a person’s identity details are entered are matters coming within the competence of the Member States, the latter must nonetheless, when exercising that competence, comply with EU law and, in particular, with the FEU Treaty provisions on the freedom of every citizen of the Union to move and reside in the territory of the Member States. (28)
38. Third, the Court has held that ‘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 recognising, 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’. (29)
39. Thus, according to that settled case-law, a link with EU law exists in regard to nationals of a Member State lawfully resident in the territory of another Member State. (30) Consequently, any citizen of the Union in that situation may rely on the rights pertaining to Union citizenship, in particular the rights provided for in Article 21(1) TFEU, including, where appropriate, against his or her Member State of origin. (31)
40. In the present case, it is common ground that the applicant, in his capacity as a Union citizen, has exercised his freedom to move and reside within a Member State other than his Member State of origin in accordance with Article 21 TFEU and that he has acquired the nationality of the former State.
41. Furthermore, the applicant is asserting in his Member State of origin rights acquired after exercising his freedom of movement in the United Kingdom, which was at the time a Member State of the European Union. Lastly, since that State no longer has that status, he wishes to be able, as a citizen of the Union solely by reason of his Romanian nationality, to move freely within the territory of the European Union with Romanian identity and travel documents. (32)
42. The applicant’s situation therefore falls within the purview of EU law. However, could that analysis be called into question by the fact that he has asserted his rights in Romania after the withdrawal of the United Kingdom from the European Union?
B. The impact of the Withdrawal Agreement
43. In the first place, it should be noted that:
– on 31 January 2020, the United Kingdom withdrew from the European Union and the European Atomic Energy Community, and
– under Article 2(e) of the Withdrawal Agreement, read in conjunction with Article 126 thereof, that agreement provides for a transition period running from 1 February 2020, the date of entry into force of the agreement, to 31 December 2020. During that period, EU law was applicable to and in the United Kingdom in accordance with the first subparagraph of Article 127(1) of the agreement, unless otherwise provided therein.
44. In the second place, I observe that:
– none of the provisions of the Withdrawal Agreement lay downs a derogation from the principle set out in Article 127 concerning the provisions of EU law which would be applicable in the case in the main proceedings, and
– in the present case, it is the effects of the exercise of the freedom of movement in the United Kingdom, obtained respectively before that Member State withdrew from the European Union and the end of the transition period, which are being claimed in another Member State. On 21 February 2017, following a deed poll procedure, the first name and the title of the applicant in the main proceedings were changed and, on 29 June 2020, during the transition period, a GRC, which is a document confirming male gender identity, was issued.
45. In my view, it must be concluded that this GRC, drawn up during the transition period, should be regarded in the Member State concerned as an official document of another Member State (33) in accordance with the EU law applicable on the date of examination of the request.
46. That characterisation cannot depend on the end of the transition period and, consequently, on the date on which its effects are relied on by the person concerned. (34) Therefore, the restriction of freedom of movement alleged by the applicant (35) in respect of the refusal to update his birth certificate may, in principle, be assessed in the light of the provisions of Article 21 TFEU.
47. Thus, by its two questions, which should be examined together in my view, the referring court seeks to ascertain, in essence, whether Article 21 TFEU and Articles 7 and 45 of the Charter must be interpreted as precluding the authorities of a Member State from refusing to recognise and enter in the birth certificate of a national of that Member State, who is also a British national, the first name and gender identity which were lawfully declared and acquired in the United Kingdom when that State was still a Member of the European Union at the time of the first declaration and when EU law was still applicable at the time of the second declaration, on the ground that a provision of national law makes the possibility of obtaining the recording of such an entry subject to the recognition of the change of sex by a court of the former Member State.
48. It must therefore be determined what consequences in terms of civil status can be drawn from the contested documents under EU law.
C. Recognition for purposes of civil status in a Member State of changes of first name and gender obtained in another Member State
49. Bearing in mind the conditions for recognition in a Member State of the effects of public documents drawn up in another Member State, I would observe, in the first place, that the referring court considers it to be established that the documents at issue in the case in the main proceedings, which are neither civil status documents nor judicial decisions, are valid and can produce the same effects, in terms of civil status, relating to the identity of the applicant (36) as those recognised by the UK authorities, which issued a new passport and a driving licence following the deed poll for the change of first name and title, no clarification having been given concerning the GRC. (37)
50. In the second place, with regard to a request to update the birth certificate of a citizen of the Union, reference should be made to the Court’s decisions on civil status relating exclusively to the refusal by the authorities of a Member State to recognise the first name or surname acquired, in circumstances similar to those in the case in the main proceedings, by a national of that Member State who has exercised his or her right to move freely and also holds the nationality of another Member State, the first name or surname being determined according to the rules in force in the latter Member State. (38)
51. The Court has held, first, that ‘a person’s forename and surname are a constituent element of his identity and of his private life, the protection of which is enshrined in Article 7 of the [Charter] and in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (“the ECHR”)’. The Court has also ruled that, even though Article 7 of the Charter does not refer to it expressly, a person’s forename and surname, as a means of personal identification and a link to a family, nonetheless concern his or her private and family life. (39)
52. Second, the Court has ruled that the refusal to recognise the name of a citizen of the Union legally acquired in another Member State is likely to hinder the exercise of the right, enshrined in Article 21 TFEU, to move and reside freely in the territories of the Member States on account of the confusion and inconvenience which are liable to arise from the divergence between the two names used for the same person for evidence both of his or her identity and of the nature of his or her family links. (40)
53. Lastly, where national law includes other legal bases for changing a name at the request of the person concerned, the Court has ruled that, to be regarded as compatible with EU law, they must not make the implementation of the rights conferred by Article 21 TFEU impossible or excessively difficult. In addition, in the absence of EU legislation in respect of modification of surnames, the detailed rules laid down by national law must respect the principle of effectiveness. (41)
54. In those decisions based on the right to move and reside freely in the territory of the Member States enjoyed by every citizen of the Union, the Court ruled in favour of the alignment in a Member State of civil status documents with a surname or first name acquired in another Member State either pursuant to the rules on the conferral of surnames (42) or following a voluntary change. (43)
55. The logic underlying that case-law is that of automatic recognition, in a context of mutual trust between Member States with the aim of guaranteeing the free movement of the person concerned in those States, of a surname or first name acquired in another Member State, and not of an administrative or judicial document. That logic is therefore different from the logic underlying recognition of the effects of a foreign document or judgment based on methods of private international law, (44) which would justify the formulation of special rules on bases other than Article 21 TFEU. (45)
56. In these circumstances, it must be determined under what conditions that case-law can be transposed, distinguishing between the documents at issue in the case in the main proceedings, as the Court has already ruled on the automatic recognition of a new first name.
1. Change of first name
57. In the present case, with regard to the change of first name obtained by the applicant in the United Kingdom before the recognition of his gender identity, it is not disputed that the first name shown on the applicant’s UK passport and driving licence is not the same as that entered in the civil register and in Romanian administrative documents. As in the case which gave rise to the judgment in Bogendorff, (46) and a fortiori where a new first name is chosen in connection with a subsequent declaration regarding gender identity, there is no doubt that the discrepancy in first names used by the same person is liable to cause him or her serious inconvenience at administrative, professional and private levels.
58. Consequently, the refusal by the authorities of a Member State to recognise the first name, as acquired in another State which was at the time a Member of the European Union, constitutes a restriction of the freedoms recognised by Article 21 TFEU for every citizen of the Union.
59. Neither the referring court nor the Romanian Government mentions any particular reason which might justify a refusal to recognise and enter in the applicant’s birth certificate the first name which he acquired in the United Kingdom other than that concerning recognition of gender identity relied on by the competent Romanian authorities. (47) Furthermore, the referring court has not cited any particular provision relating to a change of first name other than the rule connected with a change of sex. Moreover, it has not provided any information on a procedure for recognition of a foreign decision in conformity with EU law on surnames or first names. (48)
60. In addition, in the circumstances of the case in the main proceedings, linking recognition of the new first name to recognition of gender identity does not respect the principle of effectiveness and does not safeguard the rights which the applicant derives from EU law and, in particular, from Article 21 TFEU. (49) Lastly, the referring court would not be able to have recourse to justifications based on public policy and equal treatment to refuse the change of first name. (50)
61. I therefore take the view that, in the light of these circumstances, there is no difficulty, with regard to updating the applicant’s birth certificate, in dissociating recognition of the change of first name from recognition of the change of gender, even though the first name would appear to be linked to a different gender to that sociologically associated with the sex registered at birth.
62. Furthermore, I consider that in that situation, in order to assess the purport of a decision on automatic recognition of a new first name, it is necessary to go beyond the factual context in the case referred to the Court and to see that such recognition may have consequences for other civil status documents, such as those of family members of the person concerned which indicate the first name prior to the change, in particular a marriage or civil partnership certificate or a child’s birth certificate.
63. In my view, where the rules on civil status so provide, recognition of a new first name must have full effect, especially since it does not modify the identity of the third parties concerned, unlike recognition of a change of surname chosen or acquired by the spouse or passed on to children. Conversely, in the absence of a subsequent update, there would be a discrepancy between civil status documents which would impede the exercise of the rights derived from Article 21 TFEU if family members wish to benefit from them on the basis of the family links to be proven by them.
64. That is why, in my view, the scope of the answer given by the Court should not be confined to the birth certificate of the person concerned. Thus, in general, Article 21 TFEU should be interpreted as precluding the authorities of a Member State from refusing to enter in a civil register the first name acquired by a national of that Member State in another Member State, of which he or she is also a national, on the basis of a provision of national law which makes the possibility of obtaining the recording of such an entry subject to recognition of the change of sex by a court of the former Member State.
2. Change of gender
65. The novel question which the Court is asked to resolve in the present case is whether its case-law in matters of civil status relating to the cross-border effects of obtaining a name in a Member State can be fully transposed.
(a) Analogy with the Court’s case-law on names
66. As a preliminary point, it should be noted that, although in the judgment of 26 June 2018, MB (Change of gender and retirement pension), (51) the Court held that ‘EU law does not detract from the competence of the Member States in matters of civil status and legal recognition of the change of a person’s gender’, (52) the case which gave rise to that decision did not concern the legal recognition in a Member State of gender identity acquired in another Member State. (53)
67. It must therefore be determined whether the Court’s case-law on automatic recognition in a Member State of changes to identity details of a citizen of the Union, specifically his or her name, with a view to its civil registration in another Member State, could apply in the same conditions to the designation of sex in a birth certificate.
68. In a first stage of the analysis, it could be necessary to give an affirmative answer using the same language as the judgment in Freitag (54) for three reasons.
69. First, in the majority of Member States, (55)the designation of sex is a constituent element of a person’s identity, like the surname and first name. (56) In most cases the first name is linked to the sex entered on the birth certificate, (57) as is sometimes the surname. (58)
70. Second, the bases for recognition of a new surname or first name with a view to their civil registration, that is, the requirements under Article 21 TFEU and the right to respect for private life, the protection of which is enshrined in Article 7 of the Charter and in Article 8 ECHR, (59) dictate that a citizen of the Union should not be deprived of the substance of the rights conferred on him or her by his or her status, in every aspect of his or her identity.
71. Furthermore, that approach is consistent with the now settled case-law of the ECtHR based on Article 8 ECHR and relating to respect for gender identity. (60)
72. Although the ECtHR has not ruled on cases relating to recognition of decisions on changes of name or sex, (61) it has reaffirmed on a number of occasions that respect for private or family life gives rise to the positive obligation for the State to guarantee it by adopting measures for the recognition both of changes of surname or first name (62) and of gender identity (63) and to draw the necessary consequences for civil status.
73. It should also be stated that 25 of the 27 Member States provide for procedures for changing civil status such that the legal birth identity is changed by virtue of an individual choice concerning gender, (64) which confirms the relevance of the proposed approach based on the principles set out in point 70 of this Opinion by analogy with the case-law concerning names.
74. I would add that the absence of legislation in a Member State concerning recognition of declarations of change of gender does not seem to constitute an obstacle in the light of Article 21 TFEU on account of the positive obligation highlighted in the case-law of the ECtHR (65) and the analogy which can be drawn with the judgment in Grunkin and Paul. In that decision, the Court ruled on the recognition of a child’s surname composed of the surnames of his father and his mother, whereas German law did not provide for such double-barrelled surnames. (66)
75. Lastly, with regard to justifications for a restriction of freedom of movement examined by the Court, it ruled, in particular, on the objective of preventing a circumvention of national law on the status of persons, in the case of a voluntary change of name, by exercising freedom of movement and the resulting rights solely for that purpose. On that occasion it recalled that, in paragraph 24 of the judgment of 9 March 1999 in Centros, (67) it had held that a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of EU law. (68)
76. As far as recognition of gender identity is concerned, it should be borne in mind that the rules of the Member States are less consolidated at present than the rules on changes of name at the time when the Court gave its rulings. (69) Some Member States provide for a self-determination procedure, (70) while in other Member States, on the basis of the case-law of the ECtHR, (71) the probative requirements have been modified or even abolished. (72)
77. Nevertheless, that diversity in the substantive laws applicable to change of gender cannot result in serious grounds for non-recognition being accepted. (73) Since effect must be given to the rights attached to citizenship, that diversity justifies only enhanced monitoring of the conditions in which those rights are exercised in order to guard against any abuse.
78. Consequently, as was envisaged at the hearing, it would seem appropriate, in order to preclude the risk of abuse, for conditions of residence or nationality (74) to be applied to determine the existence of close links with the Member State in which such a change took place. (75)
79. With respect to the application of the principles set out above in the case in the main proceedings, I note that the only justification for the refusal, without any procedure, to recognise and enter in the birth certificate at issue the change of gender following a declaration of gender identity, as was explained in the request for a preliminary ruling, (76) is the existence of other legal bases for obtaining a change of sex in Romania.
80. As the referring court noted, the judgment in X and Y v. Romania (77) demonstrates that that national procedure cannot be regarded as compatible with EU law since it makes the implementation of the rights conferred by Article 21 TFEU impossible or excessively difficult. (78)
81. The Court could therefore take the view, in the light of the circumstances of the case in the main proceedings, as in the previous judgments concerning the name of a citizen of the Union, that the refusal by the Romanian authorities to recognise the gender identity acquired in the United Kingdom, at a time when EU law was still applicable, constitutes an unjustified restriction of the freedoms recognised by Article 21 TFEU for every citizen of the Union.
82. However, in a second stage of the analysis, the necessary assessment of the general purport of such a decision, on the same bases as for the Court’s case-law concerning names, raises questions as to possible limits that would be imposed by the particular effects in terms of personal status of the designation of sex in the birth certificate.
(b) Limits on the transposition of the case-law on names?
83. The designation of sex in the birth certificate has particular effects in relation to personal status. What consequences should be drawn, if appropriate, in the light of the Court’s recent decisions concerning the conditions in which civil status documents from one Member State must have effects in another Member State, namely the judgments in Coman and Others and Pancharevo?
(1) The specific effects of the designation of sex on personal status
84. As far as the status of persons is concerned, the declaration on sexual identity has effects which the surname does not. A change of surname may indeed have the knock-on effect of modifying the surname of persons to whom it has been passed on or by whom it has been chosen. (79) However, by comparison, the declaration of gender identity cannot be seen as an expression of will that is confined to the identity of the person concerned.
85. The declaration of gender identity modifies both the personal status and the family status of the individual. It therefore affects the exercise of rights which remain correlated with the difference in sex (marriage, parentage, retirement, (80) health, sports competitions, etc.).
86. Consequently, if the updating of civil status documents is justified by the objective of guaranteeing the rights attached to the free movement of the citizen concerned and of his or her family members, (81) it is necessary to consider, as with a change of first name, (82) the knock-on effects of such registration of a declaration of gender identity recognised in a Member State on other civil status documents, such as marriage certificates or birth certificates of children, drawn up prior to that declaration (83) in the same Member State or in other Member States, as illustrated by the judgments in Coman and Others and Pancharevo.
(2) The specific effects of the recognition and entry in a civil register of the declaration of gender identity acquired in another Member State
87. I infer from the judgments in Coman and Others and Pancharevo that the Court has ensured compliance with the principle that EU law does not detract from the competence of the Member States in respect of civil registration of designations the effect of which would be to recognise the institution of marriage between persons of the same sex or a parent-child relationship established with two parents of the same sex. In the latter situation, it has been made clear that Member States have no obligation with regard to civil status. (84)
88. I therefore take the view that the question of the effects of the recognition in one Member State of certificates or decisions relating to the designation of sex drawn up in another Member State must be considered from a different perspective to the question addressed by the Court with regard to surnames. (85)
89. In the judgment in Coman and Others, although the Court accepted the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that State, it made clear that the marriage must be recognised for the sole purpose of granting a derived right of residence to a third-country national, but that such an obligation of recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. (86)
90. In the judgment in Pancharevo, the Court ruled that the authorities of a Member State must issue an identity card or a passport to their national on the basis of a birth certificate drawn up in another Member State, regardless of whether a new birth certificate is drawn up in a national register, as the first certificate must be recognised. (87)
91. In those two judgments, the Court’s decision was in line with its settled case-law on the cross-border effects of a conferred or chosen surname. It recalled the competence of the Member States in relation to the status of persons (88) and the obligation to safeguard the rights derived from Article 21 TFEU, which in turn requires recognition of the marriage of persons of the same sex, (89) or of the parent-child relationship in respect of parents of the same sex, registered in another Member State. (90) In the latter case, the civil status document drawn up in one Member State established that there was a parent-child relationship solely for the purpose of the issue of a travel document by another Member State to its nationals, (91) without any effect on the civil registers of that Member State.
92. Consequently, in the light of those judgments, the appropriate solution in respect of recognition and entry in a civil register of a change of gender following a declaration relating to gender identity acquired in another Member State, based on the twofold requirement of personal autonomy (92) and freedom of movement of Union citizens, (93) must, in my view, provide for certain limits.
93. That solution would consist in restricting the obligation for Member States to register the modification of an individual’s identity details in accordance with the chosen gender to his or her birth certificate alone when it is likely to have effects on other civil status documents. Put in general terms, the Court’s answer to the referring court would limit the effects in terms of civil status of the principles derived from Article 21 TFEU to the identification details of the person concerned (94) which are used in particular for his or her movement within the territory of the European Union, that is to say, with a view to the issue of an identity card or a passport. (95)
94. That solution would mean that it would not be mandatory under EU law to update civil status documents concerning family members of the person concerned in so far as such updating would entail subsequent recognition in civil registers of the marriage of persons of the same sex (96) or of parent-child relationships established in respect of parents of the same sex, (97) which cannot be imposed on Member States by EU law.
95. In that connection, the palliative for the discrepancy between civil status documents of members of a couple or of the same family, based on Article 21 TFEU, already set out by the Court, could be adapted such that the declaration of gender identity would have effect on particulars taken from already existing civil status documents only upon the issue of an identity card, a residence permit or a passport, in accordance with the Court’s case-law in the judgments in Coman and Others and Pancharevo.
96. That solution is indeed not satisfactory having regard to the right to respect for family life and the best interests of the child, as the transgender person must be able to prove his or her established family links by civil status documents. I take the view that, although the dissociation of the issue of an administrative document from civil status records may be envisaged in order to leave the State of which the citizen is a national, it does not satisfy the requirement of a life without administrative obstacles in the case of the citizen’s return. (98)
97. However, because recognition in a Member State of a change relating to the identity of a citizen of the Union which occurred in another Member State is based on Article 21 TFEU, the Member States alone are competent to define the consequences, as regard the status of persons, which would result from the alignment of all civil status documents. (99)
98. The ECtHR has also held that a fair balance must be struck between the public interests at stake in connection with the organisation of civil status (100) and recognition of the gender identity of persons. (101) In that regard, the different requirements in the Member States must be taken into consideration. (102)
99. Consequently, I take the view that Article 21 TFEU should be interpreted as precluding the competent authorities of a Member State from refusing, without any procedure, to recognise and enter in the birth certificate of a national of that Member State his or her gender identity acquired in another Member State, of which he or she is also a national. The existence in national law of a procedure for change of sex or gender cannot justify such refusal.
100. In view of all the above considerations relating to changes of first name and gender obtained in another Member State and having regard to the circumstances of the case in the main proceedings, I will propose to the Court an answer to the questions asked by the referring court in respect of civil status which is limited to the birth certificate of the citizen of the Union concerned, worded in general terms and supplemented by a clarification concerning the absence of any impact of the withdrawal of the United Kingdom from the European Union.
V. Conclusion
101. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Judecătoria Sectorului 6 București (Court of First Instance, Sector 6, Bucharest, Romania) as follows:
(1) Article 21 TFEU and Articles 7 and 45 of the Charter of Fundamental Rights of the European Union
must be interpreted as precluding the authorities of a Member State from refusing to recognise and enter in the birth certificate of a national of that Member State the first name and gender identity which were lawfully declared and acquired in another Member State, of which he or she is also a national.
The existence of judicial or administrative procedures for change of sex or gender cannot constitute an obstacle to such automatic recognition.
However, EU law does not detract from the competence of the Member States to regulate, in their national law, the effects of that recognition and that entry on other civil status documents and in relation to the status of persons, including the rules on marriage and parentage.
(2) It is immaterial that the request for recognition and entry in a civil register of the change of first name and gender acquired in the United Kingdom was made in a Member State of the European Union on a date when EU law was no longer applicable in the United Kingdom.