62023CJ0004_RES
Case C‑4/23 (
i
)
M.-A. A.
v
Direcţia de Evidenţă a Persoanelor Cluj, Serviciul stare civilăandDirecţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date din Ministerul Afacerilor InterneandMunicipiul Cluj-Napoca
(Request for a preliminary ruling from the Judecătoria Sectorului 6 București)
Judgment of the Court (Grand Chamber) of 4 October 2024
(Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Articles 7 and 45 of the Charter of Fundamental Rights of the European Union – Right to move and reside freely within the territory of the Member States – Union citizen who has lawfully acquired, during the exercise of that right and his residence in another Member State, a change of his first name and gender identity – Obligation on the part of that Member State to recognise and enter in the birth certificate that change of first name and gender identity – National legislation which does not permit such recognition and entry, obliging the party concerned to bring new judicial proceedings for a change of gender identity in the Member State of origin – Effect of the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union)
Citizenship of the Union – Provisions of the Treaty – Right to move and reside freely within the territory of the Member States – Union citizen who has lawfully acquired, during the exercise of that right and his residence in another Member State, a change of his first name and gender identity – Obligation on the part of the Member State of origin legally to recognise and enter in the birth certificate that change – National legislation not permitting such recognition and entry – National legislation obliging the party concerned to bring new judicial proceedings for a change of gender identity in the Member State of origin – Not permissible – Withdrawal from the European Union of the other Member State – Irrelevant
(Articles 20 and 21 TFEU; Charter of Fundamental Rights of the European Union, Articles 7 and 45)
(see paragraphs 53-57, 62, 68-71, operative part)
Résumé
Hearing a reference for a preliminary ruling from the Judecătoria Sectorului 6 Bucureşti (Court of First Instance, Sector 6, Bucharest, Romania), the Court of Justice, sitting as the Grand Chamber, clarifies the scope of the obligation on the part of the Member State of origin to recognise and enter on the birth certificate of one of its nationals a change of first name and gender identity lawfully acquired by that citizen of the European Union when exercising his or her freedom of movement and residence in another Member State.
M.-A. A. was born in 1992 in Romania and was registered at birth as female. After moving to the United Kingdom with his parents in 2008, M.-A. A. obtained British nationality by naturalisation.
In February 2017, in the United Kingdom, M.-A. A. changed his first name and title from female to male using the deed poll procedure, (
1
) and subsequently had certain official documents issued by the United Kingdom authorities changed. In June 2020, M.-A. A. obtained a gender identity certificate, a document confirming his male gender identity, in the United Kingdom.
In May 2021, on the basis of the declaration made under the deed poll procedure and the gender identity certificate, M.-A. A. requested the Romanian competent authorities to record in his birth certificate entries relating to his change of first name, gender and personal identification number so as to reflect the male sex. He also applied for a new birth certificate containing those new particulars. By decision of 21 June 2021, the Romanian authorities rejected M.-A. A.’s request on the ground, inter alia, that, in accordance with the applicable legislation, an entry relating to a person’s change of gender identity may be recorded in his or her birth certificate only when it has been approved by a judicial decision that has become final.
Hearing the action brought by M.-A. A. against that decision, the referring court asks, in particular, whether the status of citizen of the Union and the right to move and reside freely within the territory of the Member States preclude national legislation which requires the person concerned to bring new proceedings for a change of gender identity before the national courts, when that person has already successfully completed a procedure to that end in another Member State of which he is also a national. In addition, the referring court is uncertain as to the effect, for the resolution of the dispute in the main proceedings, of the withdrawal of the United Kingdom from the European Union. (
2
)
Findings of the Court
First, the Court points out that while, as EU law currently stands, a person’s status, which is relevant to the rules on changing a first name and gender identity, is a matter that falls within the competence of the Member States, each Member State must comply with EU law in exercising that competence.
In that context, the Court has previously held that a refusal by the authorities of a Member State to recognise the name of a national of that State who exercised his or her right of free movement in the territory of another Member State, as determined in that second 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. (
3
) Such a hindrance may also result from the refusal by those authorities to recognise the change of gender identity made pursuant to the procedures laid down for that purpose in the Member State in which a Union citizen exercised his or her freedom of movement and residence, whether or not that change is linked to a change of first name, as in the present case. Like a name, gender defines a person’s identity and personal status. Consequently, the refusal to amend and recognise the gender identity which a national of one Member State has lawfully acquired in another Member State is liable to cause ‘serious inconvenience’ for that national at administrative, professional and private levels. Thus, for such a Union citizen, there is a real risk, linked to the fact that he or she bears two different first names and has been attributed two different gender identities, of having to dispel doubts as to his or her identity and the authenticity of the documents which he or she presents or the veracity of their content.
Consequently, the refusal to recognise and enter in the civil registers, a change of first name and gender identity lawfully acquired by a national of that State in another Member State, on the basis of national legislation which does not allow such recognition and entry, with the result that the person concerned is obliged to bring new judicial proceedings for a change of gender identity in the first Member State, which disregard that change already lawfully acquired in that other Member State, is liable to restrict the exercise of the right to move and reside freely within the territory of the Member States.
Next, the Court recalls that national legislation which restricts the exercise of the right enshrined in Article 21 TFEU can be justified only where it is consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’) and, in particular, the right to respect for private life set out in Article 7, which has the same meaning and scope as the right guaranteed in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. (
4
) (
5
) The European Court of Human Rights has held that the procedure for recognition of gender identity laid down by the national legislation at issue in the main proceedings is incompatible with Article 8 ECHR, in so far as it does not satisfy the requirements imposed by that provision for the examination of a request for a change of gender identity made for the first time before a national court. (
6
)
Moreover that procedure cannot constitute an effective means of enabling a Union citizen who, while residing in another Member State and therefore when exercising the right guaranteed in Article 21 TFEU and Article 45 of the Charter, has already lawfully acquired the change of his or her first name and gender identity, effectively to assert his or her rights conferred by those articles, read in the light of Article 7 of the Charter, especially since that procedure exposes that citizen to the risk that it may lead to an outcome contrary to that adopted by the authorities of the other Member State.
In order for national legislation relating to the entry in civil registers of a change of first name and gender identity to be capable of being regarded as compatible with EU law, it is necessary that the provisions or national procedure allowing such a request for such entry to be made do not render impossible or excessively difficult the implementation of the rights conferred by Article 21 TFEU and, in particular, the right to recognition of that change. The exercise of that right may be called into question by the discretion enjoyed by the competent authorities in the context of that procedure, since the existence of such discretion is liable to lead to a divergence between two names and two genders used for the same person as evidence of his or her identity and to serious inconvenience at administrative, professional and private levels. Therefore, national legislation such as that at issue in the main proceedings infringes the requirements under Article 21 TFEU.
Lastly, the Court states that it is irrelevant, in that regard, that the request for recognition and entry of the change of first name and gender identity was made on a date on which the withdrawal from the European Union of the Member State where that change had been lawfully obtained had already taken effect. (
7
)
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
(
1
)	This procedure allows UK citizens to change their first or last name by making a simple declaration.
(
2
)	Noting that, in the present case, the procedure for a change of gender identity was initiated in the United Kingdom before the withdrawal of that State from the European Union, but was completed after that withdrawal, during the transition period, the referring court asks whether, in such circumstances, Romania is required to recognise the legal effects of that procedure for a change of gender identity conducted in the United Kingdom.
(
3
)	See judgment of 8 June 2017, Freitag (C‑541/15, EU:C:2017:432). In that judgment, the Court in particular held that confusion and inconvenience are liable to arise from a divergence between the two names used for the same person, since many daily actions, both in the public and in the private domains, require a person to provide evidence of his or her own identity (paragraphs 36 and 37).
(
4
)	Convention signed in Rome on 4 November 1950 (‘the ECHR’).
(
5
)	In accordance with Article 52(3) of the Charter.
(
6
)	ECtHR, 19 January 2021, X and Y v. Romania, CE:ECHR:2021:0119JUD000214516. In that judgment, the European Court of Human Rights held inter alia that, under Article 8 ECHR, States are required to provide for a clear and foreseeable procedure for legal recognition of gender identity which allows for a change of sex and thus of name and digital personal code, on official documents, in a quick, transparent and accessible manner.
(
7
)	The Court thus notes that, in so far as M.-A. A., in his capacity as a Union citizen, seeks in his Member State of origin recognition of the change of his first name and of his gender identity acquired, when exercising his freedom of movement and residence in the United Kingdom, before the withdrawal of that Member State from the European Union and before 31 December 2020, the date laid down by the Withdrawal Agreement as marking the end of the transition period, respectively, he may rely, against that Member State of origin, on the rights pertaining to that status, in particular those laid down in Articles 20 and 21 TFEU, including after the end of that period.