62021CJ0491_RES
Case C‑491/21
WA
v
Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date din Ministerul Afacerilor Interne
(Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie)
Judgment of the Court (First Chamber) of 22 February 2024
(Reference for a preliminary ruling – Citizenship of the Union – Article 21(1) TFEU – Right to move and reside freely within the territory of the Member States – Article 45 of the Charter of Fundamental Rights of the European Union – Directive 2004/38/EC – Article 4 – Issuance of an identity card – Requirement of domicile in the Member State issuing the document – Refusal by the authorities of that Member State to issue an identity card to one of its nationals domiciled in another Member State – Equal treatment – Restrictions – Justification)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Issuance of an identity card that may serve as a travel document within the European Union – Citizen of the Union who has exercised his or her right to freedom of movement and residence – Refusal by the authorities of his or her Member State of origin to issue him or her with such an identity card because he or she has established his or her domicile in another Member State – Not permissible – Justification – Absence
(Art. 21(1) TFEU, Charter of Fundamental Rights of the European Union, Art. 45(1); European Parliament and Council Directive 2004/38, recitals 1 to 4 and Art. 4(3))
(see paragraphs 25-27, 33, 34, 36-44, 46-53, 58-61, operative part)
Résumé
In the context of a reference for a preliminary ruling, the Court states that the right to move and reside freely within the territory of the Member States, enshrined in Article 21 TFEU and Article 45(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and clarified – in the circumstances in which it is exercised – by Directive 2004/38, (
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) precludes legislation of a Member State under which a citizen of the European Union, a national of that Member State who has exercised his or her right to freedom of movement and freedom to reside in another Member State, is refused an identity card that may serve as a travel document within the European Union, on the sole ground that he or she has established his or her domicile within the territory of that other Member State.
The applicant in the main proceedings is a Romanian national, domiciled in France since 2014, who carries out his professional activities as a lawyer both in France and in Romania. The Romanian authorities issued him with an electronic simple passport, which constitutes a travel document enabling him to travel abroad – stating that he is domiciled in France – and a temporary identity card. That identity card is issued to Romanian nationals domiciled in another Member State who are temporarily resident in Romania, and must be renewed annually. That temporary identity card does not constitute a travel document.
In September 2017, the applicant in the main proceedings applied to be issued with an identity card, whether simple or electronic, constituting a travel document which would have enabled him to travel to France. That application was rejected essentially on the ground that he was domiciled abroad.
In December 2017, he then brought an appeal before the Curtea de Apel București (Court of Appeal, Bucharest, Romania), seeking an order from that court that the requested document be issued to him. By judgment delivered in March 2018, that court dismissed that appeal, on the ground that Romanian legislation did not provide for such issuance in the event of the person concerned being domiciled abroad, that legislation, moreover, not being contrary to EU law. In addition, that court considered that the applicant in the main proceedings had not suffered discrimination, since the Romanian authorities issued him with an electronic simple passport.
Hearing an appeal on a point of law against that judgment, the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), which is the referring court, decided to ask the Court of Justice whether that refusal to issue to the applicant in the main proceedings that identity card, which may serve as a travel document within the European Union, on the ground that he had established his domicile in another Member State, was compatible with EU law.
Findings of the Court
As a preliminary point, the Court notes that the Romanian legislation on the issuance of travel documents establishes a difference in treatment between Romanian citizens domiciled in Romania and those domiciled abroad. The former may be issued with one or two travel documents enabling them to travel within the European Union, namely an identity card and/or a passport, while the latter may be issued only with a passport as a travel document.
Examining whether such a difference in treatment is compatible with EU law, in the first place, the Court notes, first, that Article 4(3) of Directive 2004/38 (
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) leaves to the Member States the choice of the type of travel document, namely an identity card or a passport, which they are obliged to issue to their own nationals. Second, the Court nevertheless recalls that the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU. Accordingly, the Member States, in exercising their competence to issue identity cards, must comply with EU law and, in particular, with the Treaty provisions on the freedom to move and reside within their territory as provided for by the latter provision.
In the second place, the Court finds that the legislation at issue, in so far as it requires Romanian nationals residing in other Member States who wish to obtain both a passport and an identity card to have established their domicile in Romania, gives rise to less favourable treatment for those nationals and places them at a disadvantage simply because they have exercised their freedom of movement and residence. Furthermore, assuming that the opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union cannot be fully effective if a national of a Member State could be deterred from availing himself or herself of them, by obstacles resulting from his or her stay in another Member State, because of legislation of his or her Member State of origin penalising the mere fact that he or she has used them, the Court considers that the legislation at issue in the main proceedings is liable to deter Romanian nationals in a situation such as that of the applicant in the main proceedings from exercising their right to freedom of movement and residence within the European Union. Romanian citizens in such a situation are subject to more onerous administrative burdens than Romanian citizens domiciled in Romania as regards the procedure for issuing identity cards and/or passports. Consequently, the legislation at issue in the main proceedings constitutes a restriction on the right to move and reside freely provided for in both Article 21(1) TFEU and Article 45(1) of the Charter, the latter provision mirroring the former provision.
In the third place, the Court recalls that such a restriction can be justified in the light of EU law only if it is based on objective considerations of public interest, independent of the nationality of the persons concerned, and if it is proportionate to the legitimate objective of the provisions of national law. It follows from the case-law that a measure is proportionate when, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to achieve it. In that regard, the Romanian Government puts forward a justification for the national legislation at issue in the main proceedings based on the existence of certain administrative considerations, relating principally to the need to confer probative value on the address of domicile indicated on the identity card and to the effectiveness of the identification and checking of that address by the competent national authority. In examining those various arguments, the Court notes, first, that the Romanian Government has not demonstrated the link between the indication of an address on the identity card and the obligation to refuse to issue an identity card to Romanian nationals domiciled in another Member State. Second, it recalls that, according to settled case-law, considerations of an administrative nature cannot justify derogation by a Member State from the rules of EU law. Therefore, none of the arguments put forward by the Romanian Government supports the conclusion that the legislation at issue is based on objective considerations of public interest. Consequently, such legislation constitutes an unjustified restriction on the freedom to move and reside within the European Union, within the meaning of Article 4(3) of Directive 2004/38, read in the light of Article 21(1) TFEU and Article 45(1) of the Charter, in respect of Romanian nationals domiciled in another Member State.
(
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)	Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77). That directive implements the fundamental right to freedom of movement enshrined in Article 21 TFEU and Article 45(1) of the Charter and lays down the conditions for its exercise.
(
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)	Under that provision: ‘Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.’