CJEU Case C-4/23 / Opinion
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CJEU Case C-4/23 / Opinion
Key case facts of the case:
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
Conclusion:
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:-
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.
- 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and gender acquired in the United Kingdom was made in a Member State of the European Union on a date when EU law was no longer applicable in the United Kingdom.
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Paragraphs referring to EU Charter
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.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.
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.
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Paragraphs referring to EU Charter (original language)