Free Movement as a Gateway to Personal Status Reform? Reflections on the CJEU's Judgment in Case C-43/24 (Shipov)

https://doi.org/10.63189/JVXA4866

The relationship between EU citizenship rights and national civil status regulations has become one of the most controversial areas of EU law. The Court of Justice has gradually extended the scope of Article 21 TFEU to situations in which national civil status rules impede the effective exercise of the right to free movement. The line of case law from Garcia Avello^[1] through Grunkin and Paul,^[2] Coman and Others,^[3] Pancharevo,^[4] Mirin,^[5] and Wojewoda Mazowiecki^[6] has established a framework in which personal identity - including name, parentage, marital status, and family - is considered a constitutive dimension of Union citizenship.

The judgment in the Shipov case (C-43/24), delivered on March 12, 2026, marks the latest chapter in this story.^[7] It concerns K. M. H., a Bulgarian national residing in Italy, who sought to change her gender data in the Bulgarian civil registry. Her request was denied because the Bulgarian courts were bound by an interpretative decision based on a 2021 ruling by the Bulgarian Constitutional Court, according to which the term gender must be understood exclusively in its biological sense.^[8]

K. M. H. was born in Bulgaria in 1990 and was registered as male. According to the findings of the national court, she has identified as a woman since childhood.^[9] After being diagnosed with gender dysphoria in 2014, she began hormone therapy in Italy, where she established residence and entered into a stable relationship with an Italian national.^[10]

In 2017, she filed a petition with the District Court in Stara Zagora requesting a declaration that she was a female, a change of name, and the recording of this change in her birth certificate. The petition was denied because Bulgarian law permitted a change of gender only in the event of a physical change, not on psychological grounds.^[11] On a further appeal, the Supreme Court of Cassation initially held that Article 8 of the ECHR requires a case-by-case assessment.^[12] However, following a 2021 ruling by the Constitutional Court, according to which gender has a binary biological meaning, and a subsequent interpretative decision No. 2/20 of February 20, 2023, a legal change of gender was effectively ruled out.^[13] The Supreme Court of Cassation, doubting its compatibility with EU law, referred four preliminary questions to the Court of Justice.

The four questions mainly concerned: (1) whether EU law precludes legislation that does not allow a national who has exercised the right to free movement to change their gender data; (2) whether a binding interpretation based on moral or religious values is compatible with EU law; (3) whether mutual recognition applies to a change of gender identity acquired abroad; and (4) whether a national court may be bound by an interpretation of the constitutional court that is contrary to EU law.^[14]

The CJEU declared the third question inadmissible, as it was based on the assumption that K. M. H. had obtained a change of gender in Italy, which was not apparent from the case file.^[15] The judgment therefore does not address a classic scenario of mutual recognition.

The CJEU confirmed that matters of personal status fall within the competence of the Member States; however, in exercising that competence, Member States must comply with EU law, in particular Article 21 TFEU.^[16] This formulation establishes the jurisdictional basis on which the Court assesses whether national rules constitute an obstacle to the freedom enshrined in the Treaty.

Following the Mirin case, the Court of Justice held that gender, like a name, defines a person’s identity. Refusal to change gender data causes “serious inconvenience” at the administrative, professional, and private levels.^[17] The discrepancy between a person’s physical appearance and the information in their identity documents forces that person to constantly address doubts about their identity during border controls and in dealings with public authorities, which restricts the exercise of their rights under Article 21 TFEU.^[18]

The difference between the Shipov case and the Mirin case is significant. In the Mirin case, the applicant had obtained legal recognition of her gender in the United Kingdom and sought its recognition in Romania. In the Shipov case, K. M. H. did not have any documents from Italy confirming the change of gender identity.^[19] The obstacle was not the non-recognition of a status lawfully acquired abroad, but the absence of any domestic procedure allowing for the amendment of civil registry records. The Court thus shifts from the question of cross-border recognition to the matter of a positive obligation: a Member State must actively provide a mechanism for the legal recognition of gender.

The Court dealt with the question of justification briefly. Bulgaria’s sole argument was that the legal recognition of gender falls within the exclusive competence of Member States. The moral and religious grounds cited in national case law were found insufficient.^[20] The restriction was“contrary to the fundamental rights guaranteed to transgender persons.”^[21]

This raises important questions. The Court did not address the national identity clause under Article 4(2) TEU, which several Member States and experts consider a potential ground for derogation in matters concerning deep-rooted constitutional traditions.^[22] The constitutional understanding of the term gender as a biological category could fall into the kind of fundamental constitutional structure that Article 4(2) TEU is intended to protect.^[23] So the Court essentially left open the question of whether the argument of national identity could ever serve as a valid justification.

The CJEU invoked Article 7 of the Charter, interpreted in light of Article 8 of the ECHR. Referring to the judgments in Y.T. v. Bulgaria^[24] and P.H. v. Bulgaria,^[25] it emphasized the positive obligation to ensure “an accessible and effective procedure” for changing gender data in civil registers.^[26]

This link to Strasbourg is doctrinally important, because it transforms an obligation recognized under the ECHR into a requirement of EU law, enforceable through the preliminary ruling procedure and backed by the principle of primacy.

The CJEU held that a national court is not bound by the Constitutional Court’s interpretation of national law if that interpretation constitutes a legal obstacle to the registration of a change in civil status contrary to EU law.^[27] The reasoning is based on established principles: the primacy of EU law, the obligation of national courts to ensure the effectiveness of EU law, and the obligation not to apply conflicting national rules.^[28] The duty of consistent interpretation requires national courts to change established case law that is incompatible with EU law, even if it originates from a higher court.^[29]

Although this conclusion is consistent with the decisions in the cases of Internationale Handelsgesellschaft,^[30] Križan,^[31] and RS,^[32] it raises questions. Several national constitutional courts insist that the primacy of EU law applies only within the scope of conferred powers.^[33] The interpretation of the Bulgarian Constitutional Court concerns civil status regulation, which falls within national competence.

One of the most notable features of the Shipov case is the weakening of the cross-border element. K. M. H. was residing in Italy, which provided a jurisdictional link under Article 21 TFEU. Unlike in the Coman, Pancharevo, or Mirin cases, however, she did not seek recognition of a status acquired abroad. The cross-border element was used only as a gateway to challenge the absence of domestic proceedings.

If residence alone in another Member State is sufficient to trigger the obligation to provide a legal gender recognition procedure, the distinction between cross-border and purely domestic situations becomes extremely thin. There is a risk that the right to free movement will be instrumentalized to achieve substantive results that fall within the sphere of national legislative autonomy.^[34]

A practical consequence of the Shipov case is that Member States must ensure specific procedures - for legal gender recognition, marriage certificate transcription, identity document issuance - which directly shape the substantive content of their civil registry systems. This functional harmonization through free movement raises the question of whether the principle of conferral of powers enshrined in Article 5(1) and (2) TEU retains practical force in this area. Does the obligation to establish a legal gender recognition procedure amount to the exercise of a national competence under EU law constraints, or to the de facto transfer of a competence that was never conferred?^[35]

Perhaps the most striking omission is any engagement with Article 4(2) TEU. The Bulgarian Constitutional Court’s interpretation, according to which gender is biologically determined, is rooted in the national constitutional order and reflects an anthropological understanding of the human person. Whether we agree with this understanding or not, it concerns what Article 4(2) TEU describes as “fundamental political and constitutional structures.” The Court’s silence may be understood as a deliberate doctrinal decision, but it creates a lacuna that is likely to lead to further disputes.

The Shipov case confirms and extends the line of the Court’s case law linking personal status to EU citizenship. The CJEU has established that the absence of a legal gender recognition procedure may itself constitute an impediment to free movement. At the same time, fundamental questions remain open. The relationship between the argument of free movement and the principle of conferral of powers remains strained. Article 4(2) TEU, as a limit on the review of national rules on personal status, was not addressed. And the instruction not to apply constitutional court decisions contrary to EU law continues to test the limits of constitutional pluralism.

For the Central European region - where several Member States maintain constitutional provisions defining marriage and gender^[36] in a manner that is difficult to reconcile with the evolving case law of the Court of Justice - the Shipov case serves as a legal obligation, but also as an invitation to deeper reflection. If the Court can require a Member State to amend civil status records to reflect a gender identity that the Member State's own constitutional order does not recognise, then the locus of authority over what a person is has shifted. The Member States formally retain competence over personal status. But after Shipov, it is the CJEU that determines the conditions under which that competence may be exercised and the substantive outcomes it must produce. Whether this represents the fulfilment of Union citizenship or the quiet erosion of constitutional self-governance is a question that Shipov itself cannot answer, but which the legal communities of Central Europe cannot afford to leave unasked.

^[1] CJEU, Garcia Avello, C-148/02, 2 October 2003, ECLI:EU:C:2003:539.

^[2] CJEU, Grunkin and Paul, C-353/06, 14 October 2008, ECLI:EU:C:2008:559.

^[3] CJEU, Coman and Others, C-673/16, 5 June 2018, ECLI:EU:C:2018:385.

^[4] CJEU, Stolichna obshtina, rayon 'Pancharevo', C-490/20, 14 December 2021, ECLI:EU:C:2021:1008.

^[5] CJEU, Mirin, C-4/23, 4 October 2024, ECLI:EU:C:2024:845.

^[6] CJEU, Wojewoda Mazowiecki, C-713/23, 25 November 2025, ECLI:EU:C:2025:917.

^[7] CJEU, Shipov, C-43/24, 12 March 2026, ECLI:EU:C:2026:183.

^[8] Bulgarian Constitutional Court, Decision of 26 October 2021. See also: Interpretative Decision No 2/20 of 20 February 2023 of the plenary assembly of civil chambers of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria).

^[9] Shipov, para. 14.

^[10] Shipov, paras. 15-16.

^[11] Shipov, para. 17.

^[12] Shipov, para. 18.

^[13] Shipov, para. 21. See also: Petrova, T. (2023) 'Barring Legal Gender Reassignment in Bulgaria', Verfassungsblog, 2 March 2023, https://verfassungsblog.de/barring-legal-gender-reassignment-in-bulgaria/.

^[14] Shipov, para. 25.

^[15] Shipov, paras. 29–30.

^[16] Shipov, para. 37. See also: Mirin, para. 53; Stolichna obshtina, rayon 'Pancharevo', para. 52.

^[17] Shipov, para. 38; Mirin, para. 55.

^[18] Shipov, paras. 41-44.

^[19] Shipov, para. 40.

^[20] Shipov, para. 46.

^[21] Shipov, para. 55.

^[22] See: Cloots, E. (2015) National Identity in EU Law. Oxford: Oxford University Press; Von Bogdandy, A. and Schill, S. (2011) 'Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty', Common Market Law Review, 48(5), pp. 1417–1454.

^[23] See: Besselink, L. (2010) 'National and Constitutional Identity before and after Lisbon', Utrecht Law Review, 6(3), pp. 36-49, https://doi.org/10.18352/ulr.139.

^[24] ECtHR, Y.T. v. Bulgaria, No. 41701/16, 9 July 2020.

^[25] ECtHR, P.H. v. Bulgaria, No. 46509/20, 27 September 2022.

^[26] Shipov, paras. 51-52.

^[27] Shipov, para. 64.

^[28] Shipov, paras. 58-60. See also: CJEU, Internationale Handelsgesellschaft, 11/70, 17 December 1970, ECLI:EU:C:1970:114, para. 3.

^[29] Shipov, para. 62. See: CJEU, DI, C-441/14, 19 April 2016, ECLI:EU:C:2016:278, paras. 33-34.

^[30] CJEU, Internationale Handelsgesellschaft, 11/70, 17 December 1970.

^[31] CJEU, Križan and Others, C-416/10, 15 January 2013, ECLI:EU:C:2013:8.

^[32] CJEU, RS (Effect of the decisions of a constitutional court), C-430/21, 22 February 2022, ECLI:EU:C:2022:99.

^[33] See, e.g., the rulings of the German Federal Constitutional Court (BVerfGE 37, 271 – Solange I; BVerfGE 73, 339 – Solange II), the Polish Constitutional Tribunal (Judgment of 7 October 2021, K 3/21), and the Czech Constitutional Court (Pl. ÚS 5/12 – Slovak Pensions).

^[34] Belavusau, U. (2026) 'Sexual Citizenship via Free Movement', Verfassungsblog, 13 March 2026. See also: Pasqua, M. (2026) 'CJEU: Free Movement and Legal Gender in Shipov (C-43/24)', EAPIL Blog, 18 March 2026, https://eapil.org/2026/03/18/cjeu-free-movement-and-legal-gender-in-shipov-c-43-24/.

^[35] See: Šimović, I. and Kokić, J. (2025) 'Reflections on the CJEU's Judgment in Wojewoda Mazowiecki (C-713/23)', CEACL'Blog, 3 December 2025, https://doi.org/10.63189/UXAY3239.

^[36] Garayová, L. (2026). Infringement proceedings against the Slovak Republic for Constitutional Law 255/2025. CEAC Law. https://doi.org/10.63189/BFLU7994.

References

Belavusau, U. (2026) 'Sexual Citizenship via Free Movement', Verfassungsblog, 13 March 2026.

Besselink, L. (2010) 'National and Constitutional Identity before and after Lisbon', Utrecht Law Review, 6(3), pp. 36-49, https://doi.org/10.18352/ulr.139.

Bulgarian Constitutional Court, Decision of 26 October 2021. See also: Interpretative Decision No 2/20 of 20 February 2023 of the plenary assembly of civil chambers of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria).

CJEU, Coman and Others, C-673/16, 5 June 2018, ECLI:EU:C:2018:385.

CJEU, DI, C-441/14, 19 April 2016, ECLI:EU:C:2016:278, paras. 33-34.

CJEU, Garcia Avello, C-148/02, 2 October 2003, ECLI:EU:C:2003:539.

CJEU, Grunkin and Paul, C-353/06, 14 October 2008, ECLI:EU:C:2008:559.

CJEU, Internationale Handelsgesellschaft, 11/70, 17 December 1970, ECLI:EU:C:1970:114, para. 3.

CJEU, Internationale Handelsgesellschaft, 11/70, 17 December 1970.

CJEU, Križan and Others, C-416/10, 15 January 2013, ECLI:EU:C:2013:8.

CJEU, Mirin, C-4/23, 4 October 2024, ECLI:EU:C:2024:845.

CJEU, RS (Effect of the decisions of a constitutional court), C-430/21, 22 February 2022, ECLI:EU:C:2022:99.

CJEU, Shipov, C-43/24, 12 March 2026, ECLI:EU:C:2026:183.

CJEU, Stolichna obshtina, rayon 'Pancharevo', C-490/20, 14 December 2021, ECLI:EU:C:2021:1008.

CJEU, Wojewoda Mazowiecki, C-713/23, 25 November 2025, ECLI:EU:C:2025:917.

Cloots, E. (2015) National Identity in EU Law. Oxford: Oxford University Press.

ECtHR, P.H. v. Bulgaria, No. 46509/20, 27 September 2022.

ECtHR, Y.T. v. Bulgaria, No. 41701/16, 9 July 2020.

Garayová, L. (2026). Infringement proceedings against the Slovak Republic for Constitutional Law 255/2025. CEAC Law. https://doi.org/10.63189/BFLU7994.

Pasqua, M. (2026) 'CJEU: Free Movement and Legal Gender in Shipov (C-43/24)', EAPIL Blog, 18 March 2026, https://eapil.org/2026/03/18/cjeu-free-movement-and-legal-gender-in-shipov-c-43-24/.

Šimović, I. and Kokić, J. (2025) 'Reflections on the CJEU's Judgment in Wojewoda Mazowiecki (C-713/23)', CEACL'Blog, 3 December 2025, https://doi.org/10.63189/UXAY3239.

Von Bogdandy, A. and Schill, S. (2011) 'Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty', Common Market Law Review, 48(5), pp. 1417–1454.