AG Szpunar on the Property Regime of Cross-border Families
The author of this post is Federica Sartori, PhD student at the University of Pavia.
A pending case, Tatrauskė (C-789/23), offers the Court of Justice an opportunity to rule on the relationship between the EU citizens’ right to free movement and residence under Article 21 TFEU and national legislation on the registration of marriage property agreements.
The following remarks are based on the opinion given on the matter by AG Szpunar on 22 May 2025.
Background
An Italian-Lithuanian couple married in Italy and then moved to Lithuania, where the marriage was duly transcribed in the General Register Office. However, the chosen matrimonial property regime of separation of property was not recorded in Lithuania because the marriage certificate did not include the Lithuanian personal identification number of at least one of the spouses, as requirement under Lithuanian law for foreign marriage contracts pursuant to Article 68 of the Register Regulation. Consequently, the couple’s property regime in Lithuania would default to the statutory community of property.
On the recommendation of the Lithuanian authorities, the applicant therefore requested the Italian authorities to supplement the marriage certificate by adding the missing data. The Italian authorities refused, stating that they could not certify the authenticity of an identification number assigned by foreign public authorities. This led to the preliminary reference to the Court of Justice.
It should be noted that this formality is no longer required as of 1 January 2023, pursuant to the reform introduced by decree No 1263 of 14 December 2022 . However, the application for registration was submitted before that date, and the applicant did not raise any objections on this point.
The requirement in question thus constitutes a restriction in the exercise of the rights under Article 21(1) TFEU, since the non-portability of the marriage property regime between Member States could directly affect personal decisions regarding where to live as a married couple.
Restriction on the Freedom of Movement and Residence
First of all, it is important to note that the Republic of Lithuania is not within the enhanced cooperation implemented by Regulation (EU) 2016/1103 in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, which however does not regulate the registration of marriage contracts.
So in such a case the applicable law is the Lithuanian one, as this is the law of the (new) habitual residence of the couple, after their move to Lithuania (see art. 1.28 of Lietuvos Respublikos civilinis kodeksas, Lithuanian civil code). Nonetheless, Lithuanian law must be applied in compliance with EU law, including the provisions of Art. 21 TFEU.
This is a new issue, as the Court of Justice has so far only ruled on the registration of personal information such as name (see SaynWittgenstein; Runevič Vardyn and Wardyn; Bogendorff von Wolffersdorff; Freitag; cf. Tonolo), status (see Stolichna obshtina , rayon « Pancharevo »; cf. Di Napoli et al.) and gender identity (see Mirin).
According to the Advocate General, this existing case law cannot be transposed to the present case since civil status registers and marriage property regime registers serve different functions: the former ascertain the constituent elements of a person’s identity and private life (see SaynWittgenstein, paragraph 52), while the latter serve to make family assets enforceable against third parties.
Nonetheless, the difference in function does not preclude a possible restriction on the freedoms guaranteed by the Treaties. Therefore, the conditions necessary for the registration of the marriage contract in the appropriate register must also ensure compliance with Article 21 TFEU.
The Advocate General thus examines whether the Lithuanian requirement meets the criteria of serving an objective public-interest considerations (Coman and others, paragraph 41) and respecting the principle of proportionality to the objective legitimately pursued by national law, in the twofold components of appropriateness and necessity (see De Cuyper, paragraph 42; Tas-Hagen and Tas, paragraph 35). He concludes that Lithuanian law fails the necessity test and therefore imposes an unjustified restriction on the free movement of EU citizens.
Critical Remarks
The Advocate General’s conclusion is sound but prompts further reflections.
In general, the maintenance of public registers (including civil status registers and registers of marriage contracts) falls within the competence of the Member States. However, even in exercising this discretion, Member States must comply with and guarantee the exercise of the freedoms of movement and residence in another Member State pursuant to Art. 21 (1), TFEU (Mirin, paragraph 53; Coman and others, paragraph 37 et seq.; Bogendorff von Wolffersdorff, paragraph 32; Runevič-Vardyn and Wardyn, paragraph 63; SaynWittgenstein, paragraph 38; Grunkin and Paul, paragraph 16; Garcia Avello, paragraph 25).
National rules must not render the exercise of Article 21 TFEU rights impossible or excessively difficult (Mirin, paragraph 69; Freitag , paragraph 41), nor may they disadvantage their own nationals for exercising those rights (Direcţia for Evidenţa Personalized Yes Administrarea Bazelor de Date, paragraph 39 ff.; Freitag, paragraph 31 ff.; Kohll-Schlesser, paragraph 42; Thiele Meneses, paragraph 22).
It follows, therefore, that the previous case law can be transposed to the present case, albeit with the needed adaptations.
Indeed, in both contexts the legal reasoning is rooted in the concept of EU citizenship as a fundamental status(see Mirin, paragraph 51 ff.; Stolichna obshtina , rayon « Pancharevo », paragraph 41; Coman and others, paragraph 30; Ruiz Zambrano, paragraph 41; Bogendorff von Wolffersdorff, paragraph 29; Thiele Meneses, paragraph 18; Runevi č-Vardyn and Wardyn, paragraph 60; Grzelcyk, paragraph 31) from which derives, among others, the right to move and reside freely within the Union (Article 21 TFEU), subject to limitations in the Treaties.
Furthermore, both areas share the functionalization of the recognition of rights necessary for increasing the exercise of free movement and residence. Member States remain free to introduce or not the relevant institutions, such as same-sex marriage or the register of marriage contracts in their domestic systems.
However, a Member State’s refusal to recognise an entry in a civil status or marriage contracts register simply because the citizens exercised their right to free movement in another Member State of which they are also a national, constitutes an obstacle to the exercise of the rights under Article 21(1), TFEU (Mirin, paragraph 57) and may cause serious administrative, professional and private inconveniences (Runevič-Vardyn and Wardyn, paragraph 76; SaynWittgenstein, paragraph 67).
Generally, such a restriction can be justified only if it is based on objective public-interest considerations, regardless of nationality, and proportionate, i.e. appropriate and necessary to achieve a legitimate objective (Mirin, paragraph 59; Direcţia for Evidenţa Personalized Yes Administrarea Bazelor de Date, paragraph 50 ff.; Coman et al., paragraph 41; Kohll-Schlesser, paragraph 49; Bogendorff von Wolffersdorff, paragraphs 48, 72; Thiele Meneses, paragraph 29; Grunkin and Paul, paragraph 29).
In this case, no such objective public-interest can be identified, as suggested by the Advocate General, since requiring foreign authorities to provide the Lithuanian national identification number does not achieve the goal of ensuring the accuracy and legal certainty in public register. Foreign authorities cannot certify the correctness of a number that is not part of their legal system. On the other hand, it is unreasonable to prioritize a formal requirement (mentioning the personal identification number) over a substantive one (actually possessing it). Lithuania’s reform, which removed this requirement, confirms that the Lithuanian legislator has reconsidered the existence of a valid objective public-interest in the condition itself.
This reveals not only the absence of the necessity requirement, as the Advocate General noted, but also, contrary to their view, the absence of the appropriateness requirement. An impossible condition cannot logically be suitable or functional for any legitimate aim.
As a result, the Lithuanian legislation imposes a restriction on the exercise of EU citizens’ fundamental freedoms under Article 21 TFEU due to the absence of the required elements: objective public-interest, appropriateness and necessity.
Conclusions
The upcoming judgment of the Court of Justice, hopefully in line with the Advocate General’s opinion, will likely inaugurate a new line of case law in a still unexplored field. It could be developed in accordance with existing jurisprudence on names, status and gender identity, with necessary adaptations, and pave the way for greater harmonization of rules of the relevant legislation in this area within the European Union.
— The author discussed the subject matter of this post more fully in a post which appeared previously on the blog of SIDI, the Italian Society of International Law and EU Law.
The source of evil is the C-354/21 Registru centras judgement, which invites and encourages member states to question the effects of existing PIL instruments based on technical rules in their register law – in fact of 5th echelon and importance. In Registru centras those register law rules have been declared to have been almost cultural heritage of member states, limiting common PIL and civil procedure rules agreed upon in the succession regulation. Tatrauskė in fact concerns the same state register in Lithuania – Registru centras. If we continue to give the register law that rank and possibility, no unification of PIL (or procedural instruments) is going to function. The register office will always find some “extremely important” rule – such as the missing national identification number or the difference in the spelling of the name of the person – which prevents it from recognising the effect of the application of an EU regulation. The electronic nature of registers nowadays makes it even worse – because it may indeed prevent registration on technical level. The answer of the CJEU to such situation should, however, be: “if your register law prevents you from applying common instruments concerning free movement of persons, adjust and change your register law”. In fact the opposite to that has happened in Registru centras.
In Tatrauskė AG Szpunar is trying to do what he can do to minimise the damage – here within the margin of art. 21 TFUE.
My solution would be a different one: I think we have not yet used the real potential the scope exclusions of individual regulations such as “the status of natural persons” in art 1 sec 2 c) succession regulation. They are being understood as exclusively limiting the particular regulation (which they indeed do). But alongside that negative force, such exclusions also have some positive potential we do not use. If the application of an EU regulation leads to the conclusion that a particular person (A) is the sole heir of a different person (B) / or that A and B are spouses living in a particular matrimonial property regime, that remains so in all member states, and an ESC / national decision or authentic document confirming that under circulates between member states the particular regulation no matter, how A or B are described (the status of natural persons excluded from the scope of the regulation). A is officially called “Tomasz Szmid” in Poland and has a particular identification number as a Polish citizen whereas he is officially called “Thomas Schmidt” as a German citizen? So be it. You, register office, may well swich to your own official version of the name when describing the person (scope exception for the status of natural persons) ore use your national identification number / do not use one. But you still have to accept, that that particular person A (whatever you call that person and no matter how you describe him) is the sole heir of B. Because that is the effect of the regulation you still have to apply – alongside the scope exclution. And that is how the scope exceptions should work on technical registration level.
Thank you for your interesting comments. More precisely, in the case in question, Lithuania has already brought its domestic law into line with the AG’s proposal, removing the requirement to indicate the Lithuanian identification number in such cases. However, the Registru centras case, although also concerning national rules on registration in public registers, is actually different. In fact, the latter concerns inheritance matters governed by a regulatory instrument that ensures uniformity of regulation within the Member States, while the former concerns the matrimonial property regime, which has been the subject of enhanced cooperation due to political and legal differences in such a sensitive matter among the Member States themselves, and Lithuania does not participate in this cooperation. It follows that it is not possible to propose uniform solutions between the two cases, since the binding force of the regulation is fully effective only in inheritance matters, and not (yet) in matters of matrimonial property regimes. Similarly, it is not possible to take full advantage of the exclusion mechanism, which would in any case only operate where the regulation and/or enhanced cooperation are in place.
Furthermore, in the Registru centras case, the main issue is that the European Certificate of Succession enjoys the autonomous interpretation regime specific to European institutions by virtue of the specific objectives that the European legislator aimed to achieve in order to regulate cross-border successions quickly, easily, and effectively (including certainty in specifying the share or assets to be inherited). In the present case, only the interpretative categories from German law were applied, which, in the case of a sole universal heir, do not require the specification of the assets falling into inheritance. Therefore, the requirement set out as mandatary in the specific European form to indicate the inheritance share or list of assets is not a purely formal requirement, but constitutes the substance; it is fundamental as it serves to precisely identify the inheritance in question in a clear and unambiguous way for everyone.
In the Tatrauskė case, on the other hand, the main issue concerns the applicable national law and the purely formal conditions required by it (i.e., the indication of the Lithuanian personal identification number, rather than the possession of that number), taking into account that, in the application phase, compliance with European law and the freedoms it guarantees cannot be disregarded.
I therefore agree that formalities unrelated to substantive elements, such as a mere difference in alphabet or a mere indication (not the possession) of a personal number, should not hinder, among other things, the free movement of persons within the territory of the Union.