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Document 62021CJ0491

Judgment of the Court (First Chamber) of 22 February 2024.
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.
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.
Case C-491/21.

Court reports – general – 'Information on unpublished decisions' section

ECLI identifier: ECLI:EU:C:2024:143

 JUDGMENT OF THE COURT (First Chamber)

22 February 2024 ( *1 )

(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)

In Case C‑491/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), made by decision of 11 May 2021, received at the Court on 10 August 2021, in the proceedings

WA

v

Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date din Ministerul Afacerilor Interne,

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen, Vice-President, acting as Judge of the First Chamber, T. von Danwitz, P.G. Xuereb and A. Kumin (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 8 February 2023,

after considering the observations submitted on behalf of:

WA, by C.L. Popescu, avocat,

the Romanian Government, by L.-E. Baţagoi, E. Gane and A. Rotăreanu, acting as Agents,

the European Commission, by A. Biolan and E. Montaguti, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 27 April 2023,

gives the following

Judgment

1

This request for a preliminary ruling concerns the interpretation of 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).

2

The request has been made in proceedings between WA, a Romanian national who carries out his professional activities in both France and Romania, and the Direcția pentru Evidența Persoanelor și Administrarea Bazelor de Date din Ministerul Afacerilor Interne (Directorate responsible for maintaining the register of persons and for managing the databases of the Ministry of the Interior, Romania) (‘the Directorate for Personal Records’), concerning the latter’s refusal to issue an identity card to WA on the ground that he was domiciled in a Member State other than Romania.

Legal context

European Union law

3

Recitals 1 to 4 of Directive 2004/38 state:

‘(1)

Citizenship of the [European] Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2)

The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3)

Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

(4)

With a view to remedying this sector-by-sector, piecemeal approach to the right of free movement and residence and facilitating the exercise of this right, there needs to be a single legislative act …’

4

Article 4 of Directive 2004/38, entitled ‘Right of exit’, reads as follows:

‘1.   Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.

2.   No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.

3.   Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.

4.   The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years.’

Romanian law

5

Under Article 12 of the Ordonanța de urgență a Guvernului nr. 97/2005 privind evidența, domiciliul, reședința și actele de identitate ale cetățenilor români (Government Emergency Order No 97/2005 concerning the registration, domicile, residence and identity documents of Romanian nationals, republished in Monitorul Oficial al României, Part I, No 719 of 12 October 2011, ‘the OUG No 97/2005’), in the version applicable to the facts of the main proceedings:

‘(1)   From the age of [14] years, Romanian nationals shall be issued with identity documents.

(3)   For the purposes of this Emergency Order, “identity document” shall mean: a valid identity card, simple identity card, electronic identity card, temporary identity card and identity booklet.’

6

Article 13 of the OUG No 97/2005 provides:

‘(1)   The identity document shall serve as proof of the identity, the Romanian nationality, the address of domicile and, where appropriate, the address of residence.

(2)   In accordance with [Legea nr. 248/2005 privind regimul liberei circulații a cetățenilor români în străinătate (Law No 248/2005 on the conditions for the free movement of Romanian nationals abroad) (Monitorul Oficial al României, Part I, No 682 of 29 July 2005)], as subsequently amended and supplemented [(“the Law on the conditions for free movement”)], identity cards and electronic identity cards shall constitute a travel document in the Member States of the European Union.

(3)   The electronic identity card shall allow its holder to authenticate himself or herself in the information systems of the Ministry of the Interior and in the information systems of other public or private institutions and also to use the electronic signature, under the conditions provided for by law.’

7

Article 15(3) of the OUG No 97/2005 provides:

‘An application for the issuance of a new identity document shall be accompanied only by documents which, in accordance with the law, serve as proof of the domicile of the person concerned and, where appropriate, his or her residence, save where:

(a)

there have been any changes to the data relating to the name and forename, date of birth, civil status and Romanian nationality, in which case the applicant shall be required to submit the documents certifying those changes;

(b)

the applicant is the holder of a temporary identity card or an identity bulletin, in which case the applicant shall be required to submit all the documents referred to in paragraph 2.’

8

Article 20(1)(c) of the OUG No 97/2005 is worded as follows:

‘A temporary identity card shall be issued in the following cases:

(c)

… to Romanian citizens domiciled abroad who are temporarily resident in Romania.’

9

Article 28(1) of the OUG No 97/2005 provides:

‘(1)   Proof of the address of domicile may be given by:

(a)

acts concluded in accordance with the conditions of validity laid down by the Romanian law in force, as regards the public document certifying the right to occupy a dwelling;

(b)

a written declaration of the host, whether a natural or a legal person, serving as proof of accommodation, together with one of the documents referred to in (a) or, where appropriate, in (d);

(c)

the solemn declaration of the applicant, together with the inspection report of the police officer, certifying the existence of a building used as a dwelling and the fact that the applicant is actually resident at the address declared, for a natural person who is unable to produce the documents referred to in (a) and (b);

(d)

the document issued by the local public administration certifying that the applicant or, where appropriate, the person providing him or her with accommodation is entered on the [Registrul agricol (agricultural register)] as the owner of a building used as a dwelling;

(e)

the identity document of one of the parents or of his or her legal representative or of the document relating to the exercise of parental authority together, where appropriate, with one of the documents referred to in (a) to (d), in the case of minors applying to be issued with an identity document.’

10

Under Article 6 of the Law on the conditions for free movement:

‘(1)   The types of travel documents on the basis of which Romanian nationals may travel abroad are the following:

(a)

diplomatic passport;

(b)

service passport;

(c)

electronic diplomatic passport;

(d)

electronic service passport;

(e)

simple passport;

(f)

electronic simple passport;

(g)

temporary simple passport;

(h)

travel document.

…’

11

Article 61(1) of that law is worded as follows:

‘(1) For the purposes of this Law, a valid identity card, simple identity card and electronic identity card shall constitute a travel document on the basis of which Romanian nationals may travel to the Member States of the European Union and also to third States which recognise them as travel documents.

…’

12

Article 171(1)(d) and (2)(b) of that law provides:

‘(1)   A temporary simple passport shall be issued to Romanian nationals who satisfy the conditions laid down by this Law and whose right to travel abroad has not been suspended, in the following cases:

(d)

where the holder has submitted a simple passport or an electronic simple passport for the purpose of obtaining a visa and declares that he or she has to travel abroad as a matter of urgency;

(2) A temporary simple passport shall be issued:

(b)

in the situations referred to in paragraph 1(b) to (g), within not more than three working days from the date on which the application is made.’

13

Article 34(1), (2) and (6) of the Law on the conditions for free movement states:

‘(1)   A Romanian citizen who has established his or her domicile abroad may apply to be issued with an electronic simple passport or a temporary simple passport indicating his or her country of domicile, when he or she is in one of the following situations:

(a)

he or she has acquired a right to reside for at least one year or, depending on the case, his or her right to reside within the territory of that State has been repeatedly renewed in the course of one year;

(b)

he or she has acquired a right to reside within the territory of that State for the purposes of family reunification with a person having his or her domicile within the territory of that State;

(c)

he or she has acquired a right to reside in the long term or, where appropriate, a permanent right to reside within the territory of that State;

(d)

he or she has acquired the nationality of that State;

(e)

he or she has acquired a right to work or is enrolled in a private or public establishment with the principal aim of pursuing studies there, including occupational training.

(2)   A Romanian citizen holding a certificate of registration or a document confirming his or her residence in a Member State of the European Union or of the European Economic Area, or in the Swiss Confederation, issued by the competent authorities of a Member State of the European Union or of the European Economic Area, or of the Swiss Confederation, may apply for an electronic simple passport or a temporary simple passport indicating that State as the country of domicile.

(6)   A Romanian national who has established his or her domicile abroad shall be required, where he or she is issued with an electronic simple passport or a temporary simple passport mentioning the country of domicile, to surrender the identity document certifying the existence of a domicile in Romania issued by the Romanian authorities.’

The dispute in the main proceedings and the question referred for a preliminary ruling

14

The applicant in the main proceedings, WA, is a lawyer of Romanian nationality who carries out his professional activities in both France and Romania and who since 2014 has been domiciled in France.

15

The Romanian authorities issued an electronic simple passport to him stating that he is domiciled in France. Since his private life and professional life take place both in France and Romania, he also declares his residence in Romania each year and, on that basis, receives a temporary identity card. However, that category of card is not a document that enables him to travel abroad.

16

On 17 September 2017, WA applied to the Directorate for Personal Records to be issued with an identity card or an electronic identity card. His application was rejected on the ground that he had not established his domicile in Romania.

17

On 18 December 2017, WA lodged an administrative appeal before the Curtea de Apel București (Court of Appeal, Bucharest, Romania) seeking an order requiring the Directorate for Personal Records to issue him with the requested document.

18

By judgment of 28 March 2018, that court dismissed that appeal as unfounded, on the ground that the decision of the Directorate for Personal Records refusing WA’s application was well founded under Romanian law, which provides that identity cards are to be issued only to Romanian nationals domiciled in Romania. That court considered that Romanian law was not contrary to EU law, since Directive 2004/38 does not impose an obligation on Member States to issue identity cards to their own nationals. In addition, it found that WA had not suffered discrimination, since the Romanian authorities issued him with an electronic simple passport, which constitutes a travel document enabling him to travel abroad.

19

Being of the view that the judgment of the Curtea de Apel București (Court of Appeal, Bucharest) infringed several provisions of the FEU Treaty, of the Charter and of Directive 2004/38, WA brought an appeal on a point of law before the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), which is the referring court.

20

The referring court expresses 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.

21

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. Lastly, in the present case 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 referring court states that it has not identified such a justification.

22

In those circumstances the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 26(2) TFEU, Article 20, Article 21(1) and Article 45(1) of the [Charter] and Articles 4 [to] 6 of Directive [2004/38] be interpreted as precluding national legislation which does not permit the issuance of an identity card – which may serve as a travel document within the European Union – to a national of a Member State on the ground that he or she has established his or her domicile in a different Member State?’

Consideration of the question referred

23

According to the settled case-law of the Court, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court may find it necessary to consider provisions of EU law to which the national court has not referred in its questions. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 5 December 2023, Nordic Info, C‑128/22, EU:C:2023:951, paragraph 99 and the case-law cited).

24

In the present case, it is common ground that the situation of the applicant in the main proceedings 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.

25

In that regard, it should be recalled that 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, paragraph 49 and the case-law cited).

26

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, paragraph 42 and the case-law cited).

27

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.

28

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.

29

As a preliminary point, it must be borne in mind that it is apparent from the documents before the Court that the applicant in the main proceedings has been domiciled in France since 2014 and that he carries out his professional activities as a lawyer both in France and in Romania. The Romanian authorities issued him with an electronic simple passport stating that he is domiciled in France and a temporary identity card.

30

That temporary identity card does not constitute a travel document. It is issued to Romanian nationals domiciled in another Member State who are temporarily resident in Romania, and must be renewed annually. The applicant in the main proceedings applied to the Directorate for Personal Records for the issuance of 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 the national legislation in question does not provide for such a document to be issued in the event of a person being domiciled abroad, which would not, moreover, be contrary to EU law.

31

It is apparent from the documents before the Court that all Romanian nationals, irrespective of their place of domicile, have the right to be issued with a passport under Article 6(1)(f) and (g) and Article 34(1) and (2) of the Law on the conditions for free movement. In addition, Romanian nationals domiciled in Romania have, from the age of 14, the right to be issued with either a simple identity card or an electronic identity card that may serve as a travel document, pursuant to Article 12(1) and (3) of the OUG No 97/2005, read in conjunction with Article 61(1) of the Law on the conditions for free movement.

32

Romanian nationals domiciled in another Member State, on the other hand, are not entitled to obtain those identity cards. In that regard, the referring court makes clear that such nationals are required, under Article 34(6) of the Law on the conditions for free movement, when they are issued with a passport indicating their Member State of domicile, to surrender the identity document that may serve as a travel document and certifying the existence of a domicile in Romania. However, if they are temporarily resident in that Member State, they are issued with a temporary identity card which, pursuant to Article 12(3) of the OUG No 97/2005, read in conjunction with Article 13(2) thereof, does not constitute a travel document.

33

It follows that the Romanian legislation on the issuance of travel documents establishes a difference in treatment between Romanian citizens domiciled abroad, including in another Member State, and those who are domiciled in Romania, since the latter may be issued with one or two travel documents enabling them to travel within the European Union, namely an identity card and a passport, while the former may be issued only with a passport as a travel document.

34

It is, therefore, necessary to determine whether such a difference in treatment is contrary to Article 21 TFEU, Article 45(1) of the Charter and Article 4(3) of Directive 2004/38.

35

In order to enable their nationals to exercise the right to move and reside freely within the territory of the Member States, Article 4(3) of Directive 2004/38 requires Member States, acting in accordance with their laws, to issue to their own nationals, and renew, an identity card or passport stating their nationality.

36

As the Advocate General observes in point 35 of his Opinion, it is clear from the wording of that provision and, in particular, from the choice made by the EU legislature to use the disjunctive conjunction ‘or’ that that provision 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.

37

However, it should be borne in mind that the purpose of Directive 2004/38, as may be seen from recitals 1 to 4 thereof, 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, and that one of the objectives of that directive is to strengthen that right (judgment of 11 April 2019, Tarola, C‑483/17, EU:C:2019:309, paragraph 23 and the case-law cited).

38

Furthermore, although, as EU law currently stands, the issuance of identity cards falls within the competence of the Member States, it must, however, be borne in mind that they must exercise that competence in compliance with EU law and, in particular, with the Treaty provisions on the freedom to move and reside within their territory, as conferred by Article 21(1) TFEU on every citizen of the Union (see, to that effect, judgment of 6 October 2021, A (Crossing of borders in a pleasure boat), C‑35/20, EU:C:2021:813, paragraphs 53 and 57).

39

Therefore, while it is true that, as the Advocate General observes in point 40 of his Opinion, Article 4(3) of Directive 2004/38 does not require Member States to issue two identity documents that may serve as travel documents to their nationals – leaving, on the contrary, to those States the choice of issuing to them either an identity card or a passport – that provision, read in the light of Article 21 TFEU, cannot, however, allow Member States to make that choice by treating less favourably those of their nationals who have exercised their right to freedom of movement and residence within the European Union, and by restricting that right, without justification based on objective considerations of public interest.

40

In that context, it should be noted that, in the present case, Romanian nationals who are resident in other Member States and wish to obtain both a passport and an identity card (simple or electronic) must have established their domicile in Romania. In that regard, it is apparent from the order for reference that proof of address of domicile is established, inter alia, by a deed of ownership, a lease or proof of accommodation, which means that those nationals must be either owners, or tenants, or occupants in the capacity of persons accommodated in a dwelling in Romania. However, such a requirement results in less favourable treatment of those nationals on account of the exercise of their right to freedom of movement, in that they must thus retain domicile in Romania in order to be able to obtain two travel documents, a condition which is more easily satisfied by Romanian nationals who have not exercised that right.

41

In that regard, it should be recalled that, according to the Court’s settled case-law, national legislation which places certain of the nationals of a Member State at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union (judgment of 19 November 2020, ZW, C‑454/19, EU:C:2020:947, paragraph 30 and the case-law cited).

42

Furthermore, the Court has already held 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 can be dissuaded from using them by obstacles resulting from his or her stay in another Member State, because of legislation of his or her Member State of origin which penalises the mere fact that he or she has used those opportunities (judgment of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 61 and the case-law cited).

43

In the present case, it should be noted that, in refusing to issue an identity card that may serve as a travel document to the applicant in the main proceedings on the sole ground that he is domiciled in another Member State, namely in France, the legislation at issue in the main proceedings is liable to deter Romanian nationals in a situation such as that of that applicant from exercising their right to move and reside freely within the European Union.

44

As the Advocate General observes, in essence, in point 55 of his Opinion, contrary to what the Romanian Government claims, even if Romanian nationals domiciled in another Member State hold a passport, the exercise of their right to freedom of movement is liable to be impeded by the legislation at issue in the main proceedings.

45

In that regard, it is apparent from the documents before the Court and from the answers to the questions put at the hearing that, for a period of 12 days, the applicant in the main proceedings was unable to travel to France since he did not have an identity card that may serve as a travel document while his passport was at the embassy of a third State in Bucharest (Romania) for the purpose of obtaining a visa. In such circumstances, a Romanian national domiciled in Romania could have travelled to another Member State using his or her identity card. The Romanian Government submits in that regard that, in a situation such as that described by the applicant in the main proceedings, a temporary passport is issued within three working days of the date of submission of an application to that effect. According to the Romanian Government, such a document is designed to ensure that, in circumstances such as those at issue in the main proceedings, Romanian nationals are able, irrespective of their domicile, to exercise rapidly and without hindrance their right to freedom of movement. The applicant in the main proceedings maintained at the hearing, however, that, during a busy period, one month is necessary in order to obtain an appointment and to be able to submit an application for a temporary passport.

46

In any event, it appears that Romanian citizens in a situation such as that of the applicant in the main proceedings are subject to more onerous administrative burdens than Romanian citizens domiciled in Romania as regards the procedure for issuing identity cards and/or passports, which creates obstacles to their right to move and reside freely within the European Union.

47

In that context, it should also be pointed out that, as the European Commission submits, citizens of the Union who exercise that right generally have interests in different Member States and therefore show a certain degree of mobility between them. It is, therefore, likely that those persons would need a valid travel document at any time, and possession of a second document of that nature may prove necessary, or even essential, for them.

48

It follows from the foregoing that the legislation at issue in the main proceedings constitutes a restriction on the right to move and reside freely provided for in Article 21(1) TFEU.

49

As regards Article 45 of the Charter, it should be borne in mind that that article 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.

50

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, paragraph 281 and the case-law cited). 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, paragraph 275).

51

Since a restriction on the right provided for in Article 21(1) TFEU has already been found in paragraph 48 above, such a restriction must also be found to exist as regards the right guaranteed in Article 45(1) of the Charter.

52

A restriction such as that referred to in paragraph 48 above 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 Court’s 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 (judgment of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 67 and the case-law cited).

53

However, the referring court has not identified any objective consideration of public interest capable of serving as the basis for the legislation at issue in the main proceedings.

54

By contrast, the Romanian Government, both in its written observations and at the hearing, argued that the refusal to issue a national identity card that may serve as a travel document to Romanian nationals domiciled in another Member State is justified, inter alia, by the fact that it is impossible to record on the identity card the address of the domicile of those nationals outside Romania.

55

In that regard, that government submits, first of all, that, under Article 91(1) of the Codul civil (Civil Code), proof of domicile and residence is furnished by the information on the identity card, which therefore serves principally to prove that intrinsic element of the identity of Romanian nationals, so that they can exercise their rights and fulfil their obligations, in particular, in civil or administrative matters. The Romanian Government goes on to emphasise that the indication of the address of the domicile on the identity card is, therefore, such as to make the identification of those nationals more efficient and to prevent the excessive processing of the personal data of those nationals. Lastly, it states that even if the address of the Romanian nationals’ domicile in another Member State were indicated on their identity cards, the Romanian authorities could not assume responsibility for certifying its accuracy, since, apart from the fact that they lack competence in that regard, they would not have the means to verify that address without such verification becoming a disproportionate, or indeed impossible, administrative burden.

56

It must be held that the arguments put forward by the Romanian Government do not support the conclusion that the national legislation at issue in the main proceedings is based on objective considerations of public interest, within the meaning of the case-law of the Court cited in paragraph 52 above.

57

As regards the probative value of the information relating to the address of domicile, indicated on the identity card, the Romanian Government has not demonstrated the link between the indication of such an address on that document – information which is undoubtedly useful to the administration – and the obligation to refuse to issue an identity card to Romanian nationals domiciled in another Member State.

58

In addition, it is sufficient to note that, according to the Court’s settled case-law, considerations of an administrative nature cannot justify derogation by a Member State from the rules of EU law, especially where the derogation in question amounts to restricting, or even preventing, the exercise of one of the fundamental freedoms guaranteed by the Treaty (see, to that effect, judgment of 23 November 1999, Arblade and Others, C‑369/96 and C‑376/96, EU:C:1999:575, paragraph 37). Therefore, the effectiveness of the identification and checking of the address of domicile of Romanian nationals domiciled in another Member State likewise does not constitute an objective consideration of public interest capable of justifying legislation such as that at issue in the main proceedings.

59

That finding is not invalidated by the case-law according to which Member States cannot be denied the possibility of attaining legitimate objectives through the introduction of rules which are easily managed and supervised by the competent authorities (judgment of 24 February 2015, Sopora, C‑512/13, EU:C:2015:108, paragraph 33 and the case-law cited), relied on by the Romanian Government. Such a consideration presupposes the existence of a legitimate objective, which the Romanian Government has not been able to demonstrate in the present case.

60

It follows from those considerations that legislation such as that at issue in the main proceedings constitutes a 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, which cannot be justified either by the need to confer probative value on the address of domicile indicated on the identity card, or by the effectiveness of the identification and checking of that address by the competent national authority.

61

It follows from all of the foregoing that Article 21 TFEU and Article 45(1) of the Charter, read in conjunction with Article 4(3) 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 within the territory of that other Member State.

Costs

62

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

 

On those grounds, the Court (First Chamber) hereby rules:

 

Article 21 TFEU and Article 45(1) of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) 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,

 

must be interpreted as precluding 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.

 

[Signatures]


( *1 ) Language of the case: Romanian.

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