AG Richard de la Tour on changes of first name and gender and the right to move and reside freely in Member States

Earlier this week (7 May 2024), Advocate General Richard de la Tour delivered his opinion on the case No C-4/23, Mirin.

The request for a preliminary ruling – lodged on 3 January 2023 by the Court of First Instance, Sector 6, Bucharest (Judecătoria Sectorului 6 Bucureşti) – seeks the interpretation of Art 21 TFEU and Arts 7 and 45 Charter of Fundamental Rights of the European Union and 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 on account of their refusal to recognise and enter in his birth certificate his new first name and his gender identity acquired in the United Kingdom, of which he is also a national.

The preliminary request raises several interesting issues, such as: (i) 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; (ii) the recognition for purposes of civil status in a Member State of changes of first name and gender obtained in another Member State; and (iii) the impact of Brexit on the case.

In the Advocate General’s views, Art 21 TFEU and Arts 7 and 45 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”. Moreover, “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”. Eventually, “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Kingdom” – during the transition period – “was made in a Member State of the European Union on a date when EU law was no longer applicable in the United Kingdom”.

On the topics addressed in the opinion, the readers of RDIPP may refer to:

Ruggiero Cafari Panico, 2007, No 4, 921 ff.;
Pieralberto Mengozzi, 2009 No 1, 69 ff.;
Sara Tonolo, 2009, No 4, 849 ff.;
Laura Tomasi, 2009, No 4, 891 ff.;
Arianna Vettorel, 2014, No 2, 481 ff.;
Arianna Vettorel, 2016, No 4, 1060 ff.;
Michele Grassi, 2019, No 4, 739 ff.;
Michele Grassi, 2022, No 3, 591 ff.