From recognition to positive obligations: the ECJ’s judgment in Shipov (C-43/24)

 

 

By Marzia Genovese, Postdoctoral Lecturer and Researcher in Public Law at the European Documentation and Research Centre of the University of Pau (France).

Photo: Bulgaria Palace of Justice; photo credit Bim in Garten via Wikimedia Commons

      I.         Introduction

In K.M.H. v Obshtina Stara Zagora (Shipov, C-43/24), the Grand Chamber of the Court of Justice of the European Union (ECJ) held that Article 21 TFEU and Article 4(3) of Directive 2004/38, read in the light of Article 7 of the Charter of Fundamental Rights of the EU, preclude national legislation that does not permit a transgender Union citizen to amend certain data recorded in civil-status registers. The judgment builds upon the Court’s recent decision in Mirin and forms part of a broader line of case law concerning the relationship between free movement rights, personal status and gender identity.

The decision will likely be welcomed as a further step in the protection of transgender Union citizens exercising their free movement rights, yet the lines of reasoning adopted by both the Court and the Advocate General (AG) raise a number of conceptual and constitutional questions that remain insufficiently explored.

This contribution argues that Shipov marks a significant development in the evolution of Article 21 TFEU. Unlike Mirin, the case did not involve the recognition of a legal status previously acquired in another Member State. Instead, the Court used Article 21 TFEU to impose a positive obligation affecting the organisation of national civil-status law itself. At the same time, it does so through reasoning that leaves several conceptual and constitutional questions unresolved. In particular, the Court employs notions such as sex, gender and gender identity, without clearly identifying the legal category that Member States are required to recognise or modify. Additionally, the Court’s reasoning raises broader questions regarding the practical scope of Member State autonomy in matters of civil status.

The discussion proceeds in four steps. It first examines the conceptual uncertainty underlying the judgment. It then considers the shift from mutual recognition to self-standing positive obligations under Article 21 TFEU, before analysing the limitations of the AG’s reasoning as well. Finally, it reflects on the implications of Shipov for the relationship between Union citizenship and national competence in matters of civil status.

II. Conceptual ambiguity: what exactly must be changed?

One of the most striking features of Shipov is the conceptual ambiguity underlying the Court’s judgment. Throughout the proceedings, a number of distinct notions appear interchangeably, such as sex, gender and gender identity. Yet neither the Court nor the Advocate General clearly explain the legal relationship between these concepts or identify with precision which of them forms the object of the obligation imposed on Member States.

Such an obligation necessarily presupposes the identification of the legal category to be modified. Is EU law requiring the recognition of a person’s gender identity, the amendment of legal gender or the modification of civil-status records relating to sex? The judgment offers no clear answer.

The ambiguity culminates in the operative part of the judgment, where the Court refers to “data relating to gender, such as sex” (paras 36 and 56). This formulation is difficult to reconcile with a coherent conceptual framework. If sex and gender are distinct categories, as the Court itself appears to assume throughout the proceedings and it is also scientifically established, the judgment fails to explain why they can be treated as interchangeable for the purposes of civil-status registration. Conversely, if the two concepts are understood as functionally equivalent, the Court never justifies the use of separate terminology throughout its reasoning and moves fluidly between references to sex, gender identity and personal appearance without clarifying the legal significance of each concept.

This ambiguity is not merely semantic. It has direct implications for legal certainty. Member States remain, in principle, competent in matters of civil status. If EU law nevertheless requires them to modify certain entries contained in civil-status records, they must be able to determine with reasonable clarity and certainty which legal category is affected and what precisely must be recognised. By treating distinct dimensions as largely interchangeable, the Court risks obscuring the precise basis of the obligation imposed on Member States.

Moreover, the Court’s treatment of intersex and transgender persons illustrates the conceptual difficulties underlying the judgment (para 22). In assessing the Bulgarian legal framework, the Court appears to rely on the fact that national law permits the amendment of civil-status records in certain situations involving intersex persons whilst excluding such amendments for transgender persons. Yet the comparability of those situations is largely assumed rather than demonstrated.

This omission is significant. Intersex variations and transgender identity raise distinct legal and factual questions. The former concern biological conditions that may affect the classification of sex at the time of birth and, consequently, the accuracy of the original civil-status registration. The latter concern the recognition of a gender identity emerging after birth and whose legal implications are conceptually different from the correction of an allegedly inaccurate birth record. The Court does not explain why these situations should be treated as comparable for the purposes of civil-status registration, nor why legal solutions developed in one context should necessarily apply in the other.

Whether the situations ought ultimately to be treated alike is therefore not the central issue. The difficulty lies in the absence of a clear comparability analysis. By moving between different categories without defining the legal relevance of each of them, the judgment further reinforces the conceptual ambiguity already present elsewhere in its reasoning.

This difficulty is compounded by a second and arguably more fundamental question: does Shipov fit within the logic of the Court’s earlier citizenship case law at all?

III. From recognition to self-standing positive obligations

The Court presents Shipov as part of a broader line of case law concerning the exercise of free movement rights by Union citizens. Yet a closer examination reveals that the judgment departs in a significant respect from the logic underlying the Court’s earlier decisions on civil status.

Cases such as Grunkin-Paul, Coman and, more recently, Mirin were all built around a common premise: a legal status had already been lawfully acquired in one Member State and another Member State refused to recognise it. The obstacle to free movement arose from the coexistence of conflicting legal situations within the Union. In those circumstances, the Court relied on Article 21 TFEU to prevent Union citizens from suffering disadvantages resulting from the exercise of their right to move and reside in another Member State.

In Mirin, for example, the applicant had obtained legal recognition of his gender identity in the United Kingdom and sought recognition of that status in Romania. The Court’s intervention therefore remained rooted in a logic of mutual recognition. Romania was not required to create a new legal status; it was required to recognise one already validly established elsewhere in the Union.

Shipov presents a fundamentally different situation. The applicant had not obtained legal recognition of her gender identity in Italy or in any other Member State. No foreign administrative act, judicial decision or civil-status record existed that could serve as the object of recognition. The case therefore lacked the transnational legal element that had justified the Court’s intervention in previous cases. This distinction is not merely factual. It alters the very nature of the obligation imposed by EU law.

In the absence of any status acquired elsewhere, Bulgaria was not asked to recognise an existing legal situation. Rather, it was required to provide a mechanism through which a new legal status could be established under Bulgarian law itself. Article 21 TFEU thus ceases to operate as a principle of recognition and becomes a source of self-standing positive obligations affecting the organisation of national civil-status systems.

The significance of this shift should not be underestimated. Mutual recognition has traditionally allowed the Court to balance free movement rights with Member State autonomy. Whilst Member States remained free to determine the substantive conditions governing civil status within their own legal systems, they could not disregard legal situations lawfully established elsewhere. This logic preserved a degree of constitutional pluralism by distinguishing between the creation of legal status and its recognition.

In Shipov, however, that distinction becomes increasingly difficult to maintain. Once Article 21 TFEU is capable of generating obligations independently of any foreign status requiring recognition, the Court’s review is no longer confined to ensuring the continuity of legal situations across borders. It extends to the substantive content of national rules governing civil status. The competence formally remains national, but the outcome is increasingly shaped by EU law.

IV. The Advocate General’s ‘functional’ solution and its limits

 

If Shipov cannot be really explained through the logic of mutual recognition, a different justification is required. The AG sought to provide one by focusing on the functional role of identity documents in facilitating the exercise of free movement rights. Since identity documents play a crucial role in enabling Union citizens to move and reside freely within the Union, the Member State of nationality could not, in his view, maintain a system that prevented such documents from reflecting a person's lived gender identity.

The most problematic aspect of the Opinion, however, lies elsewhere. In paragraph 94, the AG expressly states that the original indication of the applicant’s sex should not be regarded as erroneous and should not be treated as a mistake requiring rectification. Two paragraphs later, moreover, he recalls the ECtHR’s recognition of the “historical nature” of birth records and of the continuing relevance of the sex assigned at birth for establishing facts predating gender reassignment. Yet the solution advocated by the Opinion ultimately requires the creation of a legal mechanism through which the same birth certificates may be amended in order to reflect a subsequently recognised gender identity.

The resulting tension is difficult to ignore. If the original registration was accurate and birth certificates serve, at least in part, a historical function, the Opinion never adequately explains why EU law nevertheless requires their amendment.

This tension is reinforced by the AG’s own discussion of Article 3(2) of Regulation 2025/1208. There, he acknowledges that EU law does not require Member States to include a reference to sex or gender on national identity cards and permits them to omit such information altogether, unlike the International Civil Aviation Organisation (ICAO) standards applicable to passports and other travel documents (all Member States, but not the EU, are parties to the Convention establishing the ICAO). If the objective pursued is the removal of obstacles to free movement, the necessity of amending birth certificates becomes considerably less obvious. The Opinion does not explain why that objective cannot be achieved through less intrusive means. As paragraph 82 of the Opinion makes clear, the perceived necessity of amending the birth certificate stems largely from the fact that Bulgarian identity documents are based upon that record, yet this approach risks extending the reach of Article 21 TFEU into matters that traditionally fall within Member State competence.

The AG’s functional approach thus succeeds in identifying a practical difficulty faced by the applicant, but it never convincingly explains why a birth certificate whose original entries are acknowledged to be accurate must nevertheless be altered in order to comply with EU law.

V. EU citizenship and national autonomy in matters of civil status

The preceding discussion ultimately points towards a broader constitutional issue. If Article 21 TFEU (which sets out EU citizens’ rights to move and reside freely in the EU) can require the amendment of civil-status records in the absence of any foreign status requiring recognition, what remains of Member State autonomy in matters of civil status?

The Court has consistently recognised that matters such as civil status, family status, names and personal identity fall, in principle, within the competence of the Member States (e.g., Runevič-Vardyn). At the same time, however, it has repeatedly held that those competences must be exercised consistently with EU law whenever the exercise of free movement rights is affected. The tension between these two propositions lies at the heart of Shipov.

Here, the Court expressly acknowledges that the issuing of identity documents falls within the competence of the Member State of nationality (para 47), yet it immediately adds that such documents serve to enable the exercise of the rights conferred by Article 21 TFEU. Once that connection is established, national rules governing civil-status registration become subject to review in light of both free movement and the fundamental rights guaranteed by the Charter, such as Article 7 (respect for private and family life).

This dynamic is further illustrated by the ECJ’s treatment of the Bulgarian Constitutional Court’s reasoning. The latter had previously interpreted the concept of sex contained in the Bulgarian Constitution as referring exclusively to biological sex and justified its interpretative decision in light of broader moral and religious rules and principles “prevailing over the interests of transgender persons” (paras 21 and 46). The ECJ rejected those arguments as potential justifications for the restriction of free movement and ultimately reaffirmed that neither the Member State’s competence in matters of civil status nor moral and religious considerations could justify the obstacles encountered by the applicant (paras 47-48). This logic culminates in paragraph 60 of the judgment, where the ECJ reiterates that rules of national law, even of constitutional rank, cannot undermine the effectiveness of EU law.

From the perspective of EU law, this result is hardly surprising. The principle of primacy would be significantly weakened if Member States could rely upon domestic constitutional concepts to avoid obligations flowing from Union law. Nevertheless, Shipov illustrates how the progressive expansion of Article 21 TFEU may affect the practical scope of Member State autonomy in areas that formally remain within national competence. This point is particularly significant when considered alongside the preceding sections.

To raise this concern is not to suggest that constitutional autonomy should operate as a shield against Union law. Nor is it to deny the legitimacy of protecting Union citizens against discrimination and/or unjustified obstacles to free movement. However, the broader the concept of an obstacle to free movement becomes, the greater the potential reach of EU law into areas that the Treaties continue formally to reserve to the Member States.

In this respect, Shipov may ultimately prove significant not only for legal gender recognition, but also for the constitutional development of Union citizenship itself. The judgment suggests that once a matter can be connected, even indirectly, to the exercise of free movement rights, the scope for maintaining distinct national approaches becomes increasingly narrow. Whether that development represents a natural consequence of Union citizenship or a more profound transformation of the relationship between EU law and national competences remains open to debate.

VI. Conclusion

Shipov is likely to be remembered as an important step in the Court’s case law on the rights of transgender Union citizens, yet its significance extends beyond the specific context of legal gender recognition.

The judgment suffers from a degree of conceptual ambiguity that is difficult to ignore. Throughout its reasoning, the Court moves between references to sex, gender and gender identity without clearly identifying the precise legal category that Member States are required to recognise or modify. This uncertainty is compounded by the Court’s equal treatment of intersex and transgender situations, whose comparability is largely assumed rather than demonstrated.

More fundamentally, Shipov marks an important step beyond the logic that characterised previous case law. Unlike earlier cases, no foreign legal status required recognition here. In this instance, article 21 TFEU was used not to ensure the continuity of a legal situation already established elsewhere in the Union, but to generate a positive obligation affecting the organisation of national civil-status law in circumstances where the transnational element appeared particularly weak. The AG’s attempt to justify that result through the functional role of identity documents is ultimately unpersuasive, not least because it fails to explain why birth certificates whose original entries are acknowledged to be accurate must nevertheless be amended in order to facilitate free movement.

Ultimately, the most significant issue raised by Shipov may not concern legal gender recognition at all, but the limits of Article 21 TFEU itself. Once the latter is capable of generating substantive obligations in areas formally falling within Member State competence, the distinction between the recognition of legal status and its creation becomes increasingly difficult to maintain. Whether the Court has provided a sufficiently clear and principled justification for that evolution remains an open question.

Skirting the Fault Line? AG Richard de la Tour’s Opinion in the Wojewoda Mazowiecki case: EU law requires registration of same sex marriages only when no alternatives exist

 

Helga Luku, PhD researcher, University of Antwerp

Photo credit: Jakub Halun, via Wikimedia commons

On the 3rd of April 2025, Advocate General (AG) Richard de la Tour delivered his Opinion in C-713/23, Wojewoda Mazowiecki, concerning the recognition and entry in a civil register of a foreign certificate of marriage between persons of the same sex. While aiming to comply with the division of competences between the EU and Member States, AG Richard de la Tour took a pragmatic approach by opining that the EU law does not oblige Member States to register foreign same-sex marriage certificates when they provide alternative means to ensure recognition and protection of same-sex couples. However, where no alternative form of recognition exists, Member States are obliged to register foreign same-sex marriage certificates in their civil registry.

Facts of the case

In 2018, Mr Jakub Cupriak-Trojan, a Polish and German national,  and Mr Mateusz Trojan, a Polish national, got married in Berlin. They currently reside in Poland. After their marriage, Mr Cupriak-Trojan decided to add to his birth name, in accordance with German law, the surname of his spouse. Upon the request of Mr Cupriak-Trojani, the Head of Civil Registry Office of Warsaw reflected this change in his birth name in Poland as well.

In 2019, the Head of the Civil Registry Office of Warsaw, where the birth certificates are held, refused to transcribe the German marriage certificate of Mr Cupriak-Trojan and Mr Trojan on the grounds that Polish law does not allow same-sex marriages and the transcription of such a certificate would be contrary to the fundamental principles of the Polish legal order. This decision was upheld by other Polish authorities and courts until the case reached the Supreme Administrative Court of Poland.

The latter subsequently referred a preliminary question to the Court of Justice (ECJ) asking whether EU law (Articles 20, 21 TFEU, Article 21(1) of the Charter of Fundamental Rights of the EU and Directive 2004/38) should be interpreted as precluding Member States from refusing to recognise a same-sex marriage and transcribe a foreign marriage certificate into the national civil registry when it prevents those persons from residing in that Member State as a married couple, on the ground that the law of the host Member State does not provide for same-sex marriage?

Opinion of Advocate General Richard de la Tour

The analysis of the AG Richard de la Tour started in the classical way by pointing out that under the current state of EU law, the status of persons is a matter falling within the competence of the Member States and EU law does not affect that competence.  However, when exercising that competence, Member States must comply with EU law, particularly with the free movement rights of Union citizens.

AG Richard de la Tour opined that the absence of any recognition in one Member State of the marital relationship established between two persons of the same sex registered in another Member State creates a restriction on the exercise of the right deriving from Article 21(1) TFEU. Thus, the applicants who are both Union citizens and whose situation falls within the scope of EU law must be able to reside and move freely within the territory of the Member States as well as when they return to their Member State of origin, while being recognised as married persons.

Referring to Article 7 of the Charter and its alignment with Article 8 ECHR, the AG invoked the case law of the European Court of Human Rights (ECtHR). The latter has interpreted Article 8 ECHR as requiring Member States to ensure legal recognition and protection of same-sex couples by putting in place a ‘specific legal framework’. While putting that conclusion in the EU law context, the AG Richard de la Tour reasoned that it is for the Member States, where they do not provide for, or even prohibit, the institution of marriage between persons of the same sex in their national law, to establish appropriate procedures for the recognition of ties established in another Member State.

At this juncture, the AG framed an important question: under what conditions, according to EU law, can a Member State be required to register a same-sex marriage in its civil registry, even if its national legal framework neither permits the conclusion of such marriages on its territory nor provides for the registration of same-sex marriages concluded in another Member State—regardless of whether one of the spouses holds the nationality of the Member State in question?

In the view of the AG Richard de la Tour, as long as Polish national law does not offer any alternative form of recognition for same-sex couples, it is consequently obliged to transcribe the foreign marriage certificate into its civil register. The obligation to register a foreign marriage certificate does not apply where the marriage’s effects are otherwise ensured, and it is for each Member State to define the appropriate means of guaranteeing the right to respect for the private and family life of same-sex couples.

In conclusion, AG Richard de la Tour held that Articles 20 and 21(1) TFEU, in light of Article 7 of the Charter, do not require a Member State to transcribe a same-sex marriage certificate lawfully issued in another Member State, provided that alternative forms of recognition are available. However, they preclude national laws or practices that deny any form of recognition of such marriages solely because same-sex marriage is not permitted under domestic law.

Comment

Once again, the Court of Justice has been called to address the contentious issue of same-sex marriage recognition within the European Union. In the present case, Wojewoda Mazowiecki (C-713/23), the ECJ is asked whether a Member State must record in its civil registry a same-sex marriage legally concluded abroad, even if national law does not recognise such unions.

At first glance, the facts echo those of Coman in 2018 (on the application of free movement law to same sex marriages, discussed here), but the present case is different, as both applicants- a same-sex couple- are Union citizens. As such, their right to move and reside freely within the EU is not contingent upon the recognition of their marriage for the purpose of family reunification under free movement provisions.

Notably, this element (i.e. both of them being Union citizens) influenced the Opinion of AG Richard de la Tour, which did not centre its analysis on free movement rights but rather anchored its reasoning in the fundamental right to private and family life, guaranteed by Article 7 of the Charter. When interpreting Article 7 of the Charter and Article 8 of the ECHR, AG Richard de la Tour drew upon the case law of the ECtHR -(Przybyszewska and Others v. Poland, Fedotova and Others v. Russia, Orlandi and Others v. Italy and Formela and Others v. Poland) - which has established that contracting States are required to provide a "specific legal framework" for the recognition and protection of same-sex unions. Nevertheless, the ECtHR does not impose a direct obligation on Member States to recognise same-sex marriages.

A few key points in the Opinion of AG Richard de la Tour are particularly significant for understanding the broader legal implications of the case.

Firstly, the right of same-sex spouses to lead a family life without encountering administrative obstacles relates specifically to the exercise of rights provided for spouses by national legislation (para. 43). Meanwhile, as regards rights deriving from EU law, a Union citizen does not have to prove that he or she has the status of married person in order to move and reside freely within the territory of the Member States (para.42). Thus, the applicants’ approach may be interpreted as an attempt to reinforce their reliance on free movement rights by invoking additional protection and benefits granted to spouses under national law. This understanding is further supported by their request during the hearing of the case to have their marriage certificate transcribed into the civil register, thereby enabling them to prove their status as spouses, specifically in Poland. Rightfully, one may ask whether the issue of recognition of such a same-sex marriage would have reached the ECJ if Polish law had provided an alternative form of recognition, such as registering them as a civil union, given that the latter would result in the downgrade of their relationship status and rights. AG Richard de la Tour appears to overlook this issue in his Opinion.

Secondly, the Opinion of AG Richard de la Tour in this case seems to reflect a fragmented approach towards the recognition and registration of civil status elements. He interpreted the ECJ’s case law as distinguishing between familial ties – such as marriage and parenthood – which must be recognised only for the purpose of exercising EU-derived rights, and identity-related matters – such as name or gender changes – which, following the Mirin judgment, must be recognised and entered into civil registers without such a limitation (para. 28, 29, 30). The ECJ has held that ‘like a name, gender defines a person’s identity and personal status’, and the refusal in one Member State to recognise changes to them obtained by a Union citizen in another Member State is liable to cause ‘serious inconvenience’ for that citizen at administrative, professional and private levels. When comparing the ECJ’s approach in the Mirin and Coman rulings, it can be implied that familial statuses, like marriage and parenthood, go beyond the personal sphere and may entail broader normative frameworks, including national conceptions of family law. Consequently, Member States have been afforded greater discretion in regulating and recognising these statuses within their legal systems. Nevertheless, this fragmentation appears both ambiguous and somewhat inconsistent. Although both identity-related matters (such as changes in name or gender) and familial statuses (like marriage and parenthood) remain under the competence of Member States, the non-recognition of either can create serious inconveniences for Union citizens, potentially violating their rights under Article 21 TFEU.

Lastly, AG Richard de la Tour advocated for a clear distinction between, on the one hand, the obligation of the Member States to offer some form of recognition to same-sex couples (derived from the ECtHR case law) and, on the other hand, the obligation to transcribe a foreign same-sex marriage certificate into the civil register. He supports the latter obligation only in situations where no alternative legal framework exists, as is the case in Poland (para. 55). In his view, disregarding this distinction and requiring automatic registration of such marriage certificates would lead to an interpretation of freedom of movement and residence of Union citizens as a right that can be exercised without limit in matters of personal status (para.56). At this point, I concur with his viewpoint, as EU law does not provide for such an expansive interpretation. According to him, it would imply a purely fundamental rights-based approach detached from any link to EU free movement provisions, and such a position would contravene Article 51(2) of the Charter. As noted by the AG Richard de la Tour, the ECJ has refrained from adopting such an expansive view even in cases when the best interests of the child were at stake (para. 58). It is obvious that AG Richard de la Tour aimed to strike a balance between fundamental rights of individuals and the division of competences between EU and Member States- a fault line that has repeatedly tested the ECJ and other EU bodies. However, his proposed solution raises questions, such as whether the transcription of foreign marriage certificates implies full recognition of same-sex marriage-which, in my view, it does- and, if so, whether this could lead to reverse discrimination.

It now falls to the ECJ to deliver its ruling and determine whether to adopt the Opinion of AG Richard de la Tour.

 

Budapest Pride: banned? - Banning Pride as a violation of EU free movement

 

Attila Szabó, LLM in European law, Head of Legal Aid Service, Hungarian Civil Liberties Union

The author would like to thank Steve Peers and Máté Szabó, HCLU's professional director, for their ideas for the text!

 

Photo credit: Tételes istentagadó, via Wikimedia Commons

 

On 5 April, Renáta Uitz published a pinpoint blog post on Verfassungblog about how and why Budapest Pride, which has been held every year for 30 years in Hungary for the equality of LGBTQ+ people, was banned. Uitz describes in detail why this is contrary to Article 2 of the TEU and how this government action violates the European Court of Human Rights case law. The CEU (and Royal Holloway) professor also explains how Hungary got to this point.

 

I would like to add two things to this reflection. One is just brief: Hungarian civil society organisations are committed to organising and hosting Pride and the Mayor of Budapest also supported the organizers, despite the categorical legal ban, on the very same fundamental rights basis that Uitz explains: assembly and thus standing up for LGBTQ+ rights is a fundamental right and can only be restricted if it restricts another fundamental right. The abstract and unscientific paedophile arguments that the Hungarian government is operating with are not. Consequently, the restriction of rights is also contrary to the Hungarian Fundamental Law and goes against the ECtHR case law cited by Uitz.

 

It is another matter that the Hungarian legislator allowed for fines to be imposed on the basis of the face recognition system at banned rallies, such as the Budapest Pride, which was planned to take place despite the ban. The legal issues involved would require a separate blog post. A very careful Hungarian-language piece concludes that "the use of facial recognition technology to detect and punish offences, and thus to restrict assembly and free expression, may be objectionable on a number of points. Although (...) the prohibition rules (Article 5 of the EU AI Regulation) do not directly preclude the non-real-time use of facial recognition technology, there are nevertheless a number of fundamental rights concerns which render the use of the system unlawful. The primary avenue of redress may therefore be to invoke these fundamental rights violations."

 

My argument, which may be news to many, is that the restriction runs counter to one of the EU's four freedoms, the right of free movement and residence. This is what I want to convince readers of.

 

Freedom of movement: limited?

 

In my view, if a non-Hungarian EU citizen can enjoy the right to participate in an LGBTQ+ rights march in every EU country then she can not freely choose this given country.

 

Participation in Pride is a fundamental right that has become part of Atlantic and therefore European culture. All EU citizens have the right to express their support for LGBTQ+ people in any EU Member State within the framework of Pride. If an EU citizen is not allowed to participate in Budapest Pride because it cannot take place, he or she is not free to choose Hungary as a place of residence, as this means that he or she cannot freely exercise in that Member State the fundamental rights that he or she could exercise in another Member State. So, an EU citizen who is committed to LGBTQ+ rights cannot come to Hungary to work or study, because he cannot stand up for the rights he could stand up for anywhere else in any city.

 

One might think that restrictions on freedom of movement are only violated if hard barriers are put in place, but in my view this is not the case. If a Member State introduces an ideological, ideological, theoretical or even religious restriction that alienates other EU citizens from exercising their right to move and reside freely, then that right is infringed. This is particularly so in cases where the exercise of the right in question is consensual in the EU or protected by human rights court decisions and other international law standards. Participation in Pride is such a case.

 

In my view, this conclusion is true in all cases where an EU citizen wishes to stay in Hungary on a long-term basis, but is discouraged from doing so by this kind of unlawful restriction of a fundamental right, and also in cases where an EU citizen wishes to come to Budapest specifically for Pride. The latter case is not unprecedented either, as Budapest Pride in recent years has hosted many EU citizens who would not otherwise have stayed in Hungary for a longer period. So banning Pride is not only an obstacle to the free movement of those who would like to attend such an event but cannot, but also to those who attend a formally illegal event and face sanctions for doing so.

 

Based on Art 6 of Directive 2004/38, free movement also extends to people who make short-term visits, ie to participate in an event or demonstration. The Cowan and Bickel and Franz judgments show that free movement rights in the context of short-term visits go further than entry onto the territory – ie. equal treatment as regards victims’ rights and fair trial rights respectively.

 

Legal bases and arguments

 

The right to freedom of movement is a cornerstone of EU law, enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU). Furthermore, the EU Charter of Fundamental Rights reinforces this right, particularly Article 45, which explicitly states that every EU citizen has the right to move and reside freely within the territory of the Member States. Although Article 51 of the Charter says that the Charter itself should only be taken into account in the application of EU law, I am not arguing that the Charter should be taken into account in relation to the right of assembly in the Member States. I say that the Charter should be taken into account in relation to Article 21 TFEU. Indeed, the restriction on the right of assembly restricts this EU right, guaranteed in TFEU Article 21, as follows.

 

The Court of Justice of the European Union (CJEU) plays a vital role in shaping and expanding the interpretation of EU freedom of movement, particularly in light of the EU Charter of Fundamental Rights. The CJEU increasingly considers the Charter when assessing national measures that may restrict freedom of movement. This means that restrictions must not only be justified under EU law but also comply with fundamental rights.

 

Cases involving the rights of LGBTQ+ individuals and their families have highlighted the CJEU's willingness to use the Charter to protect fundamental rights within the context of freedom of movement. The Charter has strengthened the protection of freedom of movement by providing a clear and comprehensive list of fundamental rights. It has also given the CJEU a stronger basis for challenging national measures that are deemed to be incompatible with these rights.

 

The Coman and Hamilton (C-673/16) judgment helps us to understand the context. This case dealt with the refusal of a Romanian authority to recognize the marriage of a Romanian citizen with a US citizen, a same-sex couple, celebrated in Belgium. The CJEU ruled that the term "spouse" in the context of EU freedom of movement includes same-sex spouses. The Court emphasized the need to respect the fundamental rights of EU citizens, including the right to respect for private and family life (Article 7 of the Charter) and the principle of non-discrimination (Article 21 of the Charter). This case significantly expanded the rights of same-sex couples in the EU, ensuring that their family life is protected when exercising freedom of movement.

 

Steve Peers wrote about the case that “[t]he Court added that any measure restricting free movement rights also has to comply with human rights guaranteed by the EU Charter of Rights, which has to be interpreted consistently with the European Convention on Human Rights. According to the case law of the European Court of Human Rights, “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.”

 

In another case (C-808/21), the CJEU determined that EU citizenship, established by the Maastricht Treaty and articulated in Article 20 TFEU, implies a right for EU citizens to join political parties in other Member States, despite the absence of explicit provisions. The Court reasoned that denying this right undermines the effective exercise of voting rights in municipal and European Parliament elections, which are expressly granted to EU citizens. The CJEU emphasized the principle of equal treatment under Article 22 TFEU, stating that Member States cannot impose conditions on non-national EU citizens that are not applied to their own nationals. While acknowledging national identity and the Member States' authority over national elections, the Court asserted that EU values, such as democracy and equal treatment, limit national discretion. The Court's rulings enhance EU citizenship's political rights, reinforcing its role as a fundamental status within the EU legal order. Finally, the court linked the right to join political parties to Article 12 of the Charter, which concerns freedom of association.

 

Peers wrote in the Verfassungblog that “remarkably, the Court links the implied political rights of EU citizens in municipal and European Parliament elections not only to the express rights of EU citizenship, but also to democracy and equal treatment, as represented in Article 10 TEU and the EU’s values – putting them at the same rank as national identity. So national identity cannot constitute an exception to democracy or the rule of law et al – but must be reconciled with those values.”

 

I think that the EU understandings, based on the ECtHR rulings, is that restrictions on certain political freedoms are not only a violation of EU law if they discriminate against EU citizens, but also if they restrict those rights without discrimination. For, as I argued above, a Member State that falls below the standards of European fundamental rights is in fact restricting the free movement of its citizens by alienating the citizens of other States from the freedom of movement and residence. Who would like to study in Budapest without being able to choose to participate in the celebration of equality according to sexual orientation? I think it can be argued that far fewer people would do so than if this right were not restricted.

 

The EU’s Fundamental Rights Agency has a more detailed collection of relevant cases.  These cases demonstrate the CJEU's commitment to protecting fundamental rights within the context of freedom of movement. The EU Charter of Fundamental Rights provides a vital framework for the CJEU's interpretation of EU law in this area.

 

Obviously, the facts of these cases are different from those of the Budapest Pride ban, but they follow a similar logical structure: that is, national measures become relevant under EU law when, in the exercise of free movement, they deprive an EU citizen of fundamental rights that would be guaranteed in another Member State.

 

Conclusion: no pasarán

 

I argue that banning Budapest Pride is not only a violation of the Hungarian Fundamental Law, not only a violation of the European Convention on Human Rights, not only a violation of Article 2 of the TEU, but also a violation of the right to freedom of movement and residence. There is the same human rights minimum without which an EU Member State cannot be considered so free, so grounded in European values, that a citizen of any other Member State is free to choose to travel and reside there. Member States must not violate the privacy prohibitions on which freedom of movement and residence are based, and they must not, in my opinion, exclude citizens of other Member States from joining political parties by excluding everyone equally. In the same way, Member States cannot exclude EU citizens from lawful assembly by European legal standards. If they do so, they restrict freedom of assembly.

 

Of course, many things can deter an EU citizen from moving to another Member State: from the climate, to the quality of social and health services, to tax policy. However, fundamental rights deterrence is different from other types of deterrence because of the Charter and the relevance of ECtHR jurisprudence. Denial of fundamental rights, on the other hand, carries a normative message: 'You cannot exercise certain fundamental rights here'. And it is no longer a matter of preference for the person, but of the exercise of his or her citizenship status. It is up to the Court of Justice of the European Union to work out the yardstick for this.

A Last-Minute Postscript: the CJEU finally dares to find that the NHS is a provider of ‘comprehensive sickness insurance’

 

Dr Sylvia de Mars, Newcastle University*

* With many thanks to Prof Charlotte O’Brien for all the idea-swapping that preceded this blog post.

 

Background

Does the NHS provide ‘comprehensive sickness insurance’ (CSI) cover? It is a small question, but one that has had significant consequences for a wide range of EU nationals who resided in the UK between at least 2011 and today.

The background to the question is something I have written about for over a decade at this point (‘Economically Inactive EU Migrants and the NHS: Unreasonable Burdens without Real Links?’ (2014) 39(6) ELRev 770; ‘Managing Misconceptions about EU Citizens’ Access to Domestic Public Healthcare: an EU-Level Response?’ (2019) 25(4) European Public Law 709): economically inactive EU citizens, under the rules for residency set out in Article 7(1)(b) Directive 2004/38 (the ‘Citizenship Directive’, or ‘CD’), only have a right to reside for longer than three months in a different Member State if:

‘They have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’.

A similar rule, set out in Article 7(1)(c), informs students that they must have comprehensive sickness insurance in order to live in a host Member State for more than 3 months—although it does not require the same for their family members.

What is comprehensive sickness insurance? Like many key EU law terms, it is a generic catch-all intended to encompass all sorts of ‘healthcare’ provision in all the Member States, and it is not further defined anywhere.  The CJEU’s case law, clarifying most aspects of unhelpfully general EU law, has never addressed the concept directly – and so it has fallen to national courts to interpret it instead.

The UK here faced a particular question: under national law, everyone ordinarily resident in the UK is entitled to use the NHS for free. ‘Ordinary residence’ does not have a specific meaning in legislation in the UK, but according to settled case law (Shah v London Borough of Barnet [1983] 1 All ER 226), effectively just refers to the country where someone lives for a ‘settled purpose’—and this can be forward-looking, in the sense that if you move to the UK with the intention of settling, you are also ordinarily resident. In practice, this means that any EU national who moves to the UK with the intention of staying for more than three months will be ‘ordinarily resident’ and will be entitled to access the NHS.

Here is where the legal problem that the CJEU only tackled in 2022 arises. In the UK, taking what is in essence a purposive approach to Directive 2004/38, the courts have long insisted that CSI cover cannot mean being permitted to access the NHS. Sullivan LJ’s comments in Kamau (Kenya) [2010] EWCA Civ 1302 are illustrative:

‘A person who has to rely on the United Kingdom's National Health Service is no more self-sufficient than a person whose resources are inadequate so that he may become a burden on the United Kingdom's social assistance system."

This was also Home Office policy from 2008 onwards: applicants for documentation concerning the right to reside in the UK under EU law consequently had to either be employed, or had to demonstrate they had some sort of ‘comprehensive sickness insurance’ in the UK. The problem these applicants faced was that there is no ‘comprehensive sickness insurance’ cover in the UK; private insurance generally only covers secondary care, and frequently can only apply once someone has already lived in the UK for over 12 months. An EU national student moving to the UK in 2010, in other words, could as a matter of practical fact not actually prove to the Home Office that they had EU rights to reside – although in practice, the Home Office started accepting unusable and only somewhat comprehensive private health insurance policies as ‘evidence’ of CSI.

EU nationals themselves very often did not actually encounter the sting in the tail of this policy for years, as they themselves were not required to hold documentation confirming they had a right to reside in the UK: their passport did that for them. However, there were two situations where EU nationals would have concrete reasons to prove their residency status:

If they had a family member from outside of the EU, whose residency rights were dependent on their own satisfying of Article 7 of the Citizenship Directive; or

If they wanted to apply for UK nationality after holding permanent residency for one year, where the Home Office also required them to demonstrate that they had comprehensive sickness insurance during any periods of time when they were not employed.

Our EU student who started living in the UK in 2010, as such, might not have found they did not hold the documentation the Home Office required them to until 2016 – and their new ‘counter’ for lawful residence under the Directive, as interpreted by the Home Office, would start in 2016, if and when they got private health insurance.

Did nobody ever complain about this policy?

Immigration practitioners have been furious about the Home Office interpretation of the rules for as long as they have existed, both because they are impossible to satisfy, and because there is nothing in Directive 2004/38 that actually precludes NHS coverage from being CSI. And they took their concerns to the Commission—who in April 2012 confirmed that they were taking infringement proceedings under Article 258 TFEU against the UK by sending them a reasoned opinion about their implementation of the Citizenship Directive…but never followed through on that reasoned opinion, let alone with a reference to the CJEU.

I have long had suspicions as to why. It is a matter of fact that the Commission does not have to enforce breaches of EU law, and the CJEU has ruled out the idea that its use of Article 258 TFEU could be judicially challenged if it was clearly politically motivated… as I suspect it was here. The idea that the NHS was a ‘free for all’ for newly arrived EU nationals would have been politically toxic in the UK, and the idea of pushing such a claim forward with a Member State with rising Euroscepticism would have undoubtedly brought exactly those types of ‘benefit tourism’ headlines out in the UK. And while the Commission hesitated, or paused, the UK voted to leave the European Union—at which point, other matters (like ensuring EU nationals in the UK retained their rights) became a much higher priority than stopping the Home Office from demanding economically inactive EU nationals demonstrate they have health insurance that doesn’t exist in the UK.

Fast-Forward to 2022: VI v HMRC

The EU has avoided ruling on what the NHS ‘is’ for a long time, and not only with respect to comprehensive sickness insurance. Only in 2022 did it finally take an opportunity to make an assessment of how the NHS, as a service, should be treated, although the preliminary reference sent by the Social Security Appeal Tribunal (NI) would have let it avoid commenting on the NHS as ‘comprehensive sickness insurance’ (eg, see paragraph 31: a question as to whether the Common Travel Area (CTA) provides reciprocal healthcare coverage as suggested in Ahmad can be answered without actually addressing what the NHS ‘is’.).

The case in which a definition of ‘CSI’ came to the fore is an odd one, not least of all because it is on the basis of the known facts actually a case in which CSI should not have figured at all. The case concerned VI, a Pakistani national, who lived in Northern Ireland with her husband (also Pakistani) and her four children. At least one of the children has Irish nationality on account of having been born in Northern Ireland in 2004.

The parties were agreed that VI had ‘sufficient resources’ and thus met that requirement of Article 7 CD, and they also agreed that between August 2006 and August 2014, VI and her entire family had comprehensive sickness insurance.  As that is a period longer than 5 years, the Irish national son was also agreed to have attained permanent residence (presumably by 2011).

However, HMRC found that VI was not entitled to receive Child Tax Credit or Child Benefit for the periods in which she requested it and in which she was not covered by comprehensive sickness insurance. This, in total, was approximately 3 months in 2006 and 1 month in 2014. HMRC also appears to have conceded that she does not have to repay the benefits she received in those months: it was their error, in that she did not misrepresent her status and was clear about when she did and did not hold ‘comprehensive sickness’ insurance.

Jurisdiction

Before it addressed the referred questions, the CJEU clarified its jurisdiction in the case: it could answer this preliminary reference request despite the fact that it was submitted on 7 April 2020.  First, Article 127 of the withdrawal agreement (WA) makes clear that during the so-called ‘transition period’, EU law would continue to operate in the UK as it did when it was a Member State; and secondly, Article 86(2) WA made clear that the CJEU would retain the jurisdiction to answer preliminary references submitted before the end of the transition period. This was not contentious – but probably worth stressing all the same, given the timing of the ruling.

Referred Questions

The Social Security Appeal Tribunal (NI) sent three questions to the CJEU.

First, it was asked if permanently resident children have to maintain CSI in order to maintain a right to reside. The CJEU was quick on this, pointing out that Article 16(1) CD makes clear that the conditions in Article 7 do not apply to EU national who has permanent residence [54]; and Article 16(2) CD and Article 21 TFEU as interpreted by the CJEU extends the same to ‘family members’ of EU nationals [56], even where they are not ‘dependent family members’ in the ascending line [57-58]. From 2011 onwards, in other words, neither VI nor her son would have needed comprehensive sickness insurance in order to maintain their right to reside in Northern Ireland.

The second question referred asked if the CSI requirement actually applied to a child covered by Article 7 CD, and their third country parent that is taking care of them. The CJEU here indicates that non-English versions of the Directive make it clear that the requirement for comprehensive sickness insurance applies to both the EU national and their family members, as defined by the Directive and by CJEU case law on parents who are caretakers for their EU national children [such as Chen]. That requirement, per the Directive, is there for the entirety of the 5 year residence period prior to an EU national attaining permanent residence—and the CJEU makes it clear that it does not matter if the CSI is held by the child, covering the parent, or held by the parent, and covering the child [67].

Here is where the CJEU, without being expressly prompted, comments on the NHS:

68      In the present case, it is apparent from the documents before the Court that VI and her son were affiliated during the period in question, namely from 1 May 2006 to 20 August 2006, to the United Kingdom’s public sickness insurance system offered free of charge by the National Health Service.

69      In that regard, it must be recalled that, although the host Member State may, subject to compliance with the principle of proportionality, make affiliation to its public sickness insurance system of an economically inactive Union citizen, residing in its territory on the basis of Article 7(1)(b) of Directive 2004/38, subject to conditions intended to ensure that that citizen does not become an unreasonable burden on the public finances of that Member State, such as the conclusion or maintaining, by that citizen, of comprehensive private sickness insurance enabling the reimbursement to that Member State of the health expenses it has incurred for that citizen’s benefit, or the payment, by that citizen, of a contribution to that Member State’s public sickness insurance system (judgment of 15 July 2021, A (Public health care), C‑535/19, EU:C:2021:595, paragraph 59), the fact remains that, once a Union citizen is affiliated to such a public sickness insurance system in the host Member State, he or she has comprehensive sickness insurance within the meaning of Article 7(1)(b).

70      Furthermore, in a situation, such as that in the main proceedings, in which the economically inactive Union citizen at issue is a child, one of whose parents, a third-country national, has worked and was subject to tax in the host State during the period at issue, it would be disproportionate to deny that child and the parent who is his or her primary carer a right of residence, under Article 7(1)(b) of Directive 2004/38, on the sole ground that, during that period, they were affiliated free of charge to the public sickness insurance system of that State. It cannot be considered that that affiliation free of charge constitutes, in such circumstances, an unreasonable burden on the public finances of that State.

The CJEU then rules out that VI and her son find themselves in a Texeira situation, where EU nationals parents retain a right to reside after having been workers because their children are education—and confirms that as a consequence, VI and her son both needed to be covered by comprehensive sickness insurance.

Finally, the CJEU addresses a particular ‘twist’ on CSI cover that the UK courts have ruled on, which is that if the UK has reciprocal healthcare arrangements with a Member State, and so the UK can ‘reclaim’ healthcare costs from that Member State if one of its nationals uses the NHS, that satisfies the requirement for CSI. In practice, this UK means that anyone receiving treatment under the European Health Insurance Card (EHIC), intended to cover only temporary stays abroad, is deemed by the Home Office to have comprehensive sickness insurance. The CJEU declined to decide if the UK’s arrangements with Ireland under the Common Travel Area made for a ‘reciprocal arrangement’ that amounted to CSI, simply because the referred questions did not actually clarify what those arrangements were [73-74].

This, of course, would not matter greatly to the referring tribunal, because the CJEU’s interpretation of comprehensive sickness insurance is enough to decide VI’s case: if NHS cover is comprehensive sickness insurance, VI was entitled to Child Tax Credit and Child Benefit throughout her residence in the UK, regardless of whether she also held private insurance.

Comments

General

A first observation is that it is doubtful that VI is a case that actually should have produced a definition of CSI in relation to NHS entitlement. This is nothing to do with Brexit, but rather to do with the facts of the case itself. The point at which HMRC effectively conceded that they were not going to reclaim the benefits paid out, and the error was theirs, it is not clear what ‘dispute’ remained between VI and HMRC. The CJEU has interpreted the references as being primarily about VI’s ‘right to reside’ during the relevant periods where she did not have CSI (see, eg, para 29, where the CJEU notes that the parties disagree on VI’s entitlement to Child Tax Credit and Child Benefit – but rewords that into a question on the ‘subject matter’ of ‘VI’s right of residence in the UK’), but obviously the actual dispute between VI and HMRC was about the benefits she was given during those periods; a dispute about VI’s right to reside in the absence of the benefits, after all, would have been with the Home Office, not HMRC.

It thus looks like the case was constructed very carefully to avoid falling into the realm of ‘hypothetical’ rulings that the CJEU has consistently refused to consider because the dispute that resulted in the referred question had been resolved by the time of its ruling (Case C-225/02 García Blanco). Add to this the fact that the preliminary reference questions sent did not actually require the CJEU to offer an opinion on whether NHS entitlement equated to CSI, and we can only conclude that the CJEU was determined to make this case ‘work’ for it.

Having said that, there are a number of reasons to wonder if VI is actually going to mean anything for anyone—at least in the UK.

The highlighted passages in VI about CSI may have an impact in other Member States that operate ‘public health services’ like the NHS: to the best of my knowledge, these do not currently require economically inactive EU nationals to contribute in order to gain access, but the VI judgment clearly enables them to set up something akin to the Immigration Health Surcharge that the UK charges immigrants for economically inactive EU nationals. It reemphasizes the distinctions in terms of EU law-based rights and duties between those who ‘integrate’ and those who do not, as the CJEU has been doing ever since its Dano judgment—though it does also stress, in paragraph 70, that any requirement for ‘paying into’ a national health service has to be proportionate. In the VI case, VI’s husband was a full-time employee who paid taxes much as any employed UK national, so ‘double-charging’ would have been disproportionate. A family like VI’s clearly does fit the ‘integration’ demands the CJEU has recently placed on EU nationals who move to other Member States: in the CJEU’s own words, they do not form an unreasonable burden. Given the requirement for ‘proportionate’ charges to EU nationals for use of a public healthcare system, the impact in other Member States may be quite limited in practice; it is not immediately obvious that the cost of administering such a system is outweighed by the actual charges that would be recovered.

VI and Brexit?

But what of in the UK? As far as VI herself goes, apparently HMRC are not asking for the money back—so regardless of what the CJEU said, it appears that her dispute with HMRC is for all intents and purposes done. Her main victory here is that a court that the UK wanted rid of at all costs as part of the Brexit process has, in essence, told her she was right.

What is far less clear is what happens with this CJEU ruling in practice in the UK, where problems with demands for CSI have affected hundreds of thousands of EU nationals since at least 2011. If the UK were still an EU Member State, the follow-up is obvious: anyone whose application for permanent residency or—the far more costly—UK citizenship was rejected because of the absence of CSI when they were entitled to NHS care would have a cause for damages. The effects of a status being declined for some will have meant that they took out (also expensive) private insurance they could not use and waited six years—but for others will have meant separation from family members, insecurity in terms of access to benefits because they did not have permanent residency in the UK, and far greater expenses. These appear to be losses caused by what as of 10 March 2022 we know are breaches of EU law: applicants would have been entitled to permanent residency as a matter of EU law, and the UK’s failure to grant them evidence of this status, and the attached benefits, caused identifiable losses. Were we still a Member State, then, a Francovich claim for state liability seems like the logical follow-up to VI.

But we are not, and Schedule 1(4) of the EU (Withdrawal) Act 2018 generally rules out the possibility of Francovich damages via domestic court proceedings after the transition period in the withdrawal agreement:

There is no right in domestic law on or after [F1IP completion day] to damages in accordance with the rule in Francovich.

However, hidden in paragraph 39(7) of Schedule 8 of the EU (Withdrawal) Act 2018 is an exception that covers rights held and violated before Brexit:

Paragraph 4 of Schedule 1 does not apply in relation to any proceedings begun within the period of two years beginning with exit day so far as the proceedings relate to anything which occurred before exit day.

VI falls within this exception, and so Francovich damages for historic mistreatment of EU nationals seeking confirmation of permanent residency and being told they could not have it because they were reliant on the NHS are a definitive possibility, provided they are started before the end of 2022. Historic wrongs here can thus still be righted, provided claims are made quickly enough.

What happens if they are not, and EU nationals want to make a claim after 2022?

Schedule 1 of the EU (Withdrawal) Agreement 2018 is itself very clear – but what is not clear is whether this domestic law provision survives the UK’s obligations under the Withdrawal Agreement itself as implemented in UK law. Section 5(7) of the EU (Withdrawal) Act 2018 thus indicates that Schedule 1 is “subject” to so-called “relevant separation agreement law”, and section 7(C) of the same Act makes clear that “relevant separation agreement law” includes the Withdrawal Agreement. If state liability is an EU law doctrine that forms part of the Withdrawal Agreement, then, it would take precedence over the UK’s abolition of the doctrine as a matter of domestic law.

Is Francovich part of the Withdrawal Agreement? On a purely practical level, it’s not clear what the point of Articles 86-89 WA is in the absence of an ability to provide remedies for breaches of EU law. Article 86 WA gives the CJEU the jurisdiction to hear this reference post-transition, and Article 89 WA makes clear that the ruling in VI is still binding on the entirety of the UK:

1.Judgments and orders of the Court of Justice of the European Union handed down before the end of the transition period, as well as such judgments and orders handed down after the end of the transition period in proceedings referred to in Articles 86 and 87, shall have binding force in their entirety on and in the United Kingdom.

2.If, in a judgment referred to in paragraph 1, the Court of Justice of the European Union finds that the United Kingdom has failed to fulfil an obligation under the Treaties or this Agreement, the United Kingdom shall take the necessary measures to comply with that judgment.

If a CJEU judgment would not have the same effects in the UK (where it is binding in its entirety) as it would in the Member States, it is difficult to see how the ability for the CJEU to rule on matters after 2022 has much meaning: an obligation to comply with CJEU rulings on how to apply EU law applicable in the UK when it was a Member State is effectively moot, as the same EU law is not applicable in the UK anymore now. For the CJEU’s declaratory judgments to have any practical effects, they would need to be able to result in remedies to be obtainable for those who experienced losses because of historic, pre-Brexit breaches of EU law.

Important here is that that Article 4(1) WA declares the entire Withdrawal Agreement to be directly effective where it is clear, precise and unconditional, and Article 4(3) and 4(4) WA requires that “Union law or concepts or provisions thereof” have to be interpreted and applied in accordance with both methods, general principles, and pre-Brexit CJEU case law.

In 2023, therefore, an individual could argue before a UK court that Article 89 WA is directly effective—and that part of the UK taking the ‘necessary measures’ to comply with the judgment means that UK courts should be able to consider claims for state liability, as that is part of the EU law’s normal enforcement repertoire (as established by CJEU case law). Whether a UK court would accept this logic, however, is debatable; while the Withdrawal Agreement as a whole is supreme to any conflicting domestic law, and the EU (Withdrawal) Act 2018 acknowledges as much for domestic law purposes, it is a genuine matter of interpretation if Schedule 1(4) of the EU (Withdrawal) Agreement 2018 is in conflict with the Withdrawal Agreement. What would happen with any attempt to ‘Francovich’ the VI ruling after 2022, in other words, is anyone’s guess.

In the absence of an EU law remedy, anyone affected by what is over a decade of misapplication of Article 7 CD but unable to act on that via a case before 2023 looks out of luck. Judicial review applications have a time limit of 3 months maximum, and even the most generous application of that in the case of VI would have the clock starting on 10 March 2022. An argument that links VI to the withdrawal agreement's general 'EU law' effects might thus look like a long shot, but by 2023, it will be the only possible shot. 

In terms of ongoing UK policy that VI affects, we also have to look at what the withdrawal agreement applies, and requires, in terms of UK interpretation and application of that EU law. The UK has left the EU, of course, but the Citizenship Directive remains a key component of the Withdrawal Agreement’s provisions on Citizens’ Rights. All EU nationals resident in the UK on the basis of the Withdrawal Agreement are in effect still here under the rules set out in the Citizenship Directive. A key difference between now and then, however, is that as a policy choice, the UK government chose not to require economically inactive EU nationals who wished to apply for ‘Settled Status’ under the Withdrawal Agreement to hold comprehensive sickness insurance: five years of residency in the UK while having sufficient resources was all that was required.

If this seems generous, the sting is once more in the tail, because these EU nationals with ‘settled status’ nonetheless need to demonstrate they held CSI during any periods they resided in the UK under EU law (rather than the ‘Settled Status’ scheme) – so, any time before they applied for either ‘Settled Status’ or ‘Pre-Settled Status’. There are thus inevitably a number of EU nationals in the UK who have lived here for far longer than six years, but who nonetheless are not able to apply for UK citizenship because of an administrative requirement covering their pre-Brexit residency that the CJEU has now declared incompatible with EU law.

Can VI help them? Opinions are bound to differ here as well. One possible argument for the UK government to make here is that citizenship law is outside of EU competences in a very general sense, and so the UK asking EU nationals to have CSI is simply not something that the Withdrawal Agreement addresses. It might as well ask EU nationals to dance the hokey cokey: that, too, is outside of what the EU can control.

However, it is also arguable that ‘CSI cover’, as the UK demands it of EU nationals in order to naturalise, is an EU law concept that is covered by the Withdrawal Agreement, and therefore must be interpreted in line with the CJEU’s case law—bringing this particular dimension of the administrative dimension to UK nationality law within the scope of EU law. If the UK government were insistent that EU nationals could only naturalise if they had held some sort of non-NHS health insurance, the fix would be simple: just call it something else but require that EU nationals held it anyway, as retrospective (or ex post facto) legislative activity is perfectly possible under UK law. This would mean that those wanting UK citizenship would simply have to get whatever non-NHS comprehensive sickness insurance cover is, as so many before them did, and wait several more years in order to put in their application.

VI and Northern Ireland?

One further final ‘Brexit’ dimension that has to be considered in light of VI is how the judgment will work not in the UK generally, but specifically in Northern Ireland. As has been set out in a great many pieces of academic writing and commentary since 2015, the ‘Brexit’ that Northern Ireland is experiencing is distinct from the one that Great Britain has achieved, and there are particular dimensions of the Protocol on Ireland/Northern Ireland (Protocol) that remain unclear but are worth exploring in light of this judgment.

Key is Article 2 of the Protocol, of which the relevant parts read:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

There has been significant debate as to the scope of this ‘no diminution’ commitment. In terms of concrete ‘rights’ protected, the evidence to the Lords Committee on the Protocol has suggested that there are no clear limitations to the GFA concepts of ‘right, safeguard or equality of opportunity’— the GFA at best sets out a non-exhaustive list of examples.

Of course, Article 2 of the Protocol only applies to a diminution of rights that followed from Brexit, and so the likely way in which any cause for action on the basis of VI is linked to Article 2 is via remedies. Given that the EU (Withdrawal) Act 2018 will end all possibility of state liability claims in relation to pre-Brexit breaches of EU made law by the UK at the end of 2022, it appears clear that there will be a diminution of rights here (eg, right to an effective remedy) and that that diminution has been a direct consequence of Brexit (many thanks to Dr. Eleni Frantziou for pointing this out).  

This consequently would suggest that while EU nationals living in Great Britain who were denied, for example, benefits or citizenship because of the CSI requirement, may fall between the cracks created by Brexit, in the absence of a ‘willing’ judiciary, EU nationals living in Northern Ireland look like they might have a further shot at a successful claim even if they do not 'get it in' before the end of 2022. Their argument would be that a violation of EU law pre-Brexit should result in undiminished state liability for the UK post-Brexit because of Article 2 of the Protocol. But there, too, a judiciary looking to give Article 2 of the Protocol a broad meaning is a prerequisite for a result, and so it is far from obvious that anyone in the UK will experience the effects that VI would have had if the UK were still a Member State unless they get in a claim for damages before the end of this year.

Conclusion

The Commission was too worried to pursue the matter in 2012, and the CJEU seemed to feel confident enough to rule on what the NHS actually does only in 2022, after the UK left the EU, and when the ruling would probably not cause a shockwave anymore. That assessment might be slightly misplaced, however. If the above interpretation of the effects of VI in the post-Brexit UK legal landscape is correct,  the CJEU may have done just enough to still give EU nationals a surefire remedy for the wrongs they experienced for the wrongs they experienced if they leap on this judgment - and at least several routes by which they can try to attain a remedy beyond 2022. Given the general politics surrounding Brexit even now that it is supposedly 'done', one can only imagine how this will go down in Westminster. 

Photo credit: Matt Brown, via Wikimedia Commons