rule of law, judicial cooperation

Judicial Interaction Techniques; role of national higher courts; Role of Lawyers; Use of the Preliminary Reference Procedure

Curtea de Justitie a Uniunii Europene / Inalta Curte de Casatie si Justitie a Romaniei

Court of Justice of European Union / High Court of Cassation and Justice, Romania

C-491/21

22.02.2024

ECLI:EU:C:2024:143

The judgement of the Court in the Case -491/21 represents a response to the request of a preliminary ruling made by the High Court of Cassation and Justice, Romania in a national case. Following the CJEU decision, the High Court of Cassation and Justice admitted on April 2, 2024 the appeal in the national case declared by the appellant-plaintiff WA against the Civil Sentence no. 1502 of March 28, 2018 pronounced by the Bucharest Court of Appeal – Section VIII of Administrative and Fiscal Litigation, overturned the appealed sentence and, rejudging: admitted the action filed by the plaintiff WA in opposition to the defendant, the Directorate for the Records of Persons and the Administration of Databases from the Ministry of Internal Affairs and it compelled the defendant to issue an identity card or electronic identity card to the plaintiff.

Article 26(2) TFEU, Article 20, Article 21(1) and Article 45(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 4 to 6 of 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).

Judgment of 5 December 2023, Nordic Info, C 128/22, EU:C:2023:951, Judgment of 9 June 2022, Préfet du Gers et Institut national de la statistique et des études économiques, C 673/20, EU:C:2022:449, Judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C 490/20, EU:C:2021:1008, Judgment of 11 April 2019, Tarola, C 483/17, EU:C:2019:309, Judgment of 6 October 2021, A (Crossing of borders in a pleasure boat), C 35/20, EU:C:2021:813, Judgment of 19 November 2020, ZW, C 454/19, EU:C:2020:947, Judgment of 25 July 2018, A (Assistance for a disabled person), C 679/16, EU:C:2018:601, Judgment of 21 June 2022, Ligue des droits humains, C 817/19, EU:C:2022:491, Judgment of 23 November 1999, Arblade and Others, C 369/96 and C 376/96, EU:C:1999:575, Judgment of 24 February 2015, Sopora, C 512/13, EU:C:2015:108

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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

The right to move and reside freely within the territory of the Member States corroborated with Article 45 of the Charter of Fundamental Rights of the European Union according to which every citizen of the Union has the right to move and reside freely within the territory of the Member State should imply also the right to be issued identity documents by the state where the person is residing. Even if the national legislation does not regulate such situation, prevailing the European provisions that ensure the exercise of the free movement and residing in European Union.

NO

NO

Article 12-13, 15 (3), 20 (1), 28 (1) of the Government Emergency Order No 97/2005 concerning the registration, domicile, residence and identity documents of Romanian nationals (‘the OUG No 97/2005’), Art. 6, 61 (1), 171 (1) letters d and (2) letter b, art 34 (1), (2) and (6) of Law No 248/2005 on the conditions for the free movement of Romanian nationals abroad

The request for a preliminary ruling made pursuant to Article 267 TFEU by the High Court of Cassation and Justice was made in the context of a dispute between WA, a lawyer of Romanian citizenship, who carries out his professional activities both in France and in Romania and who, since 2014, has his domicile in France and the Directorate for the Records of Persons and the Administration of Databases Data from the Ministry of Internal Affairs (Romania) - DEP, in relation to the latter's refusal to issue an identity card to WA for the reason that he is domiciled in another member state than Romania. On 18.12.2017, the plaintiff brought an action in administrative litigation at the Court of Appeal in Bucharest (CAB) (Romania), through which he requested to oblige the Directorate for the Records of Persons to issue him the requested document. By the sentence of 28.03.2018 CAB rejected the mentioned action as unfounded, with the reasoning that the refusal decision adopted by the DEP is justified by Romanian law, which provides that identity cards are issued only to Romanian citizens residing in Romania. CAB considered that Romanian law does not contravene Union law as Directive 2004/38 does not oblige member states to issue identity cards to their own citizens. Considering that the CAB sentence violates several provisions of the FEU Treaty, the Charter and Directive 2004/38, the applicant appealed to the High Court of Cassation and Justice, Romania, which referred several question to the CJEU.

The situation of the applicant in this case falls within the scope of EU law, in particular the rules governing the exercise of the Union citizens’ right of freedom of movement and residence. Article 20 TFEU confers on every person holding the nationality of a Member State Union citizenship, which, according to settled case-law, is destined to be the fundamental status of nationals of the Member States (judgment of 9 June 2022, Préfet du Gers et Institut national de la statistique et des études économiques, C 673/20, EU:C:2022:449). Furthermore, a national of a Member State who has exercised, in his or her capacity as a Union citizen, his or her freedom to move and reside within a Member State other than his or her Member State of origin, 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 (judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C 490/20, EU:C:2021:1008). The applicant in the main proceedings may, therefore, rely on the rights conferred by those provisions, subject, in accordance with Article 21(1) TFEU, to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Such limitations and conditions are laid down by Directive 2004/38, the purpose of which is, inter alia, to lay down the conditions for the exercise of those rights and the limitations on them. In those circumstances, without there being any need to rule on the interpretation of Article 26 TFEU, Article 20 and Article 21(1) of the Charter and Articles 5 and 6 of Directive 2004/38, it must be held that the referring court asks, in essence, whether Article 21 TFEU and Article 45(1) of the Charter, read in conjunction with Article 4 of Directive 2004/38, must be interpreted as precluding legislation of a Member State under which a citizen of the 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 in the territory of that other Member State.

The EU Charter was invoked in the CJEU judgment, as a legally binding parameter. The CJUE retained that as regards Article 45 of the Charter, it guarantees, in paragraph 1 thereof, the right of every citizen of the Union to move and reside freely within the territory of the Member States, a right which, according to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), corresponds to that guaranteed in Article 20(2)(a) TFEU, and is to be exercised, under the second subparagraph of Article 20(2) TFEU and Article 52(2) of the Charter, in accordance with the conditions and the limits defined by the Treaties and by the measures adopted thereunder. In that regard, it should be noted that, according to the Court’s case-law, a national measure that is liable to obstruct the exercise of freedom of movement for persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter, it being the task of the Court to ensure that those rights are respected (judgment of 21 June 2022, Ligue des droits humains, C 817/19, EU:C:2022:491). Therefore, any restriction on the rights provided for in Article 21(1) TFEU necessarily infringes Article 45(1) of the Charter, since the right of every citizen of the Union to move and reside freely within the territory of the Member States, provided for in the Charter, reflects the right conferred by Article 21(1) TFEU (see, to that effect, judgment of 21 June 2022, Ligue des droits humains, C 817/19, EU:C:2022:491). Since a restriction on the right provided for in Article 21(1) TFEU has already been found in the case, such a restriction must also be found to exist as regards the right guaranteed in Article 45(1) of the Charter.

The ECHR was not referred in this case.

The case used preliminary reference, consistent interpretation with EU law of the national provisions towards the European provisions by the national referring courts, disapplication of national law in favor of EU law by the national High Court of Cassation and Justice, preserving the efficiency of the judicial cooperation mechanism through art. 267 TFEU. In fact, the High Court of Cassation and Justice, expressed doubts as to the conformity with EU law of the refusal to issue an identity card to WA in the circumstances of the case before it.  In that regard, the referring court notes that the purpose of Directive 2004/38 is to harmonise the conditions required by the Member States for entry into the territory of another Member State. However, the national legislation at issue in the main proceedings gives rise to a restrictive application of Article 4(3) of that directive, which provides that Member States are to issue identity cards or passports to their citizens in accordance with their legislation. In addition, the criterion of domicile for the issuance of an identity card may lead to discriminatory treatment, which, in order to be justified under EU law, must be based on objective considerations independent of the nationality of the persons concerned and proportionate to the legitimate objective pursued by national law. To be noted that the Directorate for Personal Records did not state which objective public-interest consideration might justify the difference in treatment resulting in the refusal to grant Romanian nationals domiciled in another Member State of the European Union the right to have a national identity card. The High Court of Cassation and Justice states that it has not identified such a justification.

The national court does not make citation or assessment of other national judgments, than the one who was appealed. Also there is no constitutionality review and no citing the jurisprudence of a foreign constitutional court.

The national court does not make citation or assessment of other national judgments or European courts, no constitutionality review were involved. Still, the High Court of Cassation and Justice has doubts over the decision of the Court of Appeal of Bucharest (CAB) and considers that the national legislation is restrictive and does not observe the purpose of harmonization of the European legislation as regards the freedom of movement and residence, therefore it find necessary to obtain a preliminary ruling on the subject from the European supranational court.

The scope pursued by the High Court of Cassation and Justice when using judicial interaction techniques was to solve a conflict of judicial interpretation involving fundamental rights enshrined in the EU Charter and by the European legislation and to prove that the national provisions are contrary to the European provisions.

Not applicable yet, as the ruling in the national case is very recent. The Romanian High Court of Justice announced the solution in the national case on April 2, 2024.

Yes, following the decision of the CJEU the High Court of Cassation and Justice overturned the appealed sentence and, rejudging the case has admitted the action filed by the plaintiff WA in opposition to the defendant, the Directorate for the Records of Persons and the Administration of Databases from the Ministry of Internal Affairs and compelled the defendant to issue an identity card or electronic identity card to the plaintiff.

The national referring court did not quote other judgements of the CJEU/ECtHR than those mentioned at point 4.3 and that were also referred to in the CJEU Judgement.

No, the national court did not quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports.

The national court considered national case law on fundamental rights as regards the fundamental freedom of move and residence.

Pursuant to national procedural law, the judgment of the national court subsequent to the First Chamber Judgment was final.

This judgment is too recent for an accurate evaluation of its impact within the national courts practice. Still, it is a proof of the judicial cooperation between the national high court with the European Court of Justice as regards the correct applicability of the European legislation within the national context and to ensure the observance of the fundamental rights and freedom and determine the change of application the national relevant legislation.

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Daniela Arcadia Hinescu, National Association of the Romanian Bars (UNBR)

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