The Bulgarian Trans Law Ruling and the Quiet Expansion of EU Power
The recent judgment of the Court of Justice of the European Union concerning the civil-status law of Bulgaria has brought into sharp relief one of the most consequential but often poorly understood dynamics of the European project: the steady enlargement of supranational authority through judicial interpretation rather than through political treaty reform. The immediate controversy concerns whether Bulgaria may prohibit the alteration of the sex recorded on a birth certificate. Yet the deeper significance of the ruling lies not in the particular social question involved but in the constitutional mechanisms by which EU law increasingly reshapes national legal systems.
The case arose after Bulgarian courts adopted an interpretation of domestic civil-status law holding that legal sex corresponds to biological sex at birth and therefore cannot be altered in the civil registry. This interpretation effectively created a prohibition on the legal modification of sex markers in official identity documents. The dispute before the European court began when a Bulgarian citizen who had moved to another EU member state sought to amend civil documents so that the recorded sex and name would correspond with a changed gender identity recognised abroad. Bulgarian authorities refused the request on the basis of domestic law, and the matter was eventually referred to the EU court for interpretation of the relevant treaty obligations governing the rights of EU citizens.¹
The judgment delivered by the CJEU did not directly instruct Bulgaria to adopt a specific domestic policy on gender identity. Instead the court framed the question in a different legal register. It ruled that an absolute refusal to amend identity documents may violate the rights of an EU citizen where the refusal creates serious obstacles to the exercise of the right to move and reside freely within the Union. Inconsistent identity documents, the court reasoned, can create repeated administrative difficulties during border checks, employment verification, or other official procedures encountered when living in another member state. Because such obstacles may hinder the effective exercise of EU citizenship rights, national rules that produce them must be reconsidered.²
The reasoning employed by the court illustrates a legal strategy that has become increasingly central to European integration. Rather than legislating directly in morally or politically contested areas, the EU legal order frequently relies upon the expansive interpretation of treaty rights—particularly the right of free movement—to reshape the consequences of national law. What appears initially to be a narrow technical judgment therefore reflects a much broader constitutional development within the European Union.
From Market Freedom to Constitutional Liberty
The legal foundation of the court’s decision lies in the right of free movement enshrined in the Treaty on the Functioning of the European Union. The European Communities were originally designed as an economic arrangement intended to create a common market in which goods, services, capital, and labour could move freely across national borders. The architects of the early European project did not conceive of the Community as a political union in the modern sense; rather, its central objective was economic integration and the avoidance of protectionist barriers between states.³
A decisive transformation occurred with the Treaty of Maastricht, which introduced the legal status of EU citizenship. From that moment every national of a member state simultaneously became a citizen of the Union, endowed with rights including the freedom to reside in other member states and to receive equal treatment under certain circumstances.⁴ This development gradually converted what had once been an economic liberty into a personal constitutional status.
The CJEU subsequently reinforced this transformation through a series of judgments affirming that EU citizenship constitutes “the fundamental status of nationals of the Member States.”⁵ This formulation signalled a profound shift in the court’s approach. The freedom of movement was no longer treated merely as a rule facilitating economic exchange but as a core element of a supranational legal order concerned with the rights and identity of individual citizens.
Integration Through Judicial Interpretation
The practical consequences of this jurisprudence have been significant. Whenever an EU citizen lives, studies, works, or forms a family in another member state, legal questions inevitably arise concerning the recognition of personal status across borders. When domestic laws create obstacles to such recognition, those obstacles may be framed as restrictions on the exercise of EU citizenship rights.
This reasoning has produced several landmark rulings that have gradually harmonised aspects of national law without the enactment of a single new EU statute. In Coman and Others v Inspectoratul General pentru Imigrări, for example, the court held that a member state which does not recognise same-sex marriage domestically must nevertheless recognise a same-sex spouse for the limited purpose of granting residency rights where the marriage was validly concluded in another member state.⁶ Similarly, in V.M.A. v Stolichna obshtina, Bulgaria was required to recognise a Spanish birth certificate listing two mothers so that a child could obtain EU citizenship documentation.⁷
In each of these cases the court avoided ruling directly on the contested moral or cultural questions themselves. Instead it applied a consistent legal logic: national rules cannot undermine the effective exercise of EU citizenship rights. The recent Bulgarian judgment concerning identity documents follows precisely the same jurisprudential trajectory.
Why EU Law Usually Prevails
The ability of EU institutions to reshape national law through such rulings rests upon structural features of the European legal system. One of the most significant is the doctrine of the supremacy of EU law. This principle, developed by the CJEU in Costa v ENEL, established that EU law forms an autonomous legal order whose rules cannot be overridden by conflicting national legislation.⁸ The doctrine was reinforced in Amministrazione delle Finanze v Simmenthal, where the court ruled that national judges must immediately set aside domestic laws that conflict with EU obligations.⁹
A second mechanism reinforcing EU authority is the preliminary reference procedure established under Article 267 TFEU. When a national court encounters a dispute involving EU law, it may refer the matter to the CJEU for authoritative interpretation. The resulting judgment must then be applied by the national court in resolving the case. In this way EU law becomes embedded directly within domestic legal proceedings.
If a government refuses to comply with EU obligations, the European Commission may initiate infringement proceedings that can ultimately result in financial penalties imposed by the court. The Commission has employed this mechanism repeatedly against member states that have resisted EU legal interpretations.¹⁰
These institutional arrangements mean that conflicts between national legislation and EU law rarely end in favour of the national government. Compliance is generally the most practical outcome once the CJEU has delivered its interpretation.
National Constitutional Resistance
Nevertheless, several national constitutional courts have sought to preserve the primacy of their own constitutional orders. The most influential example is the Federal Constitutional Court of Germany, which has repeatedly asserted that EU authority derives from powers transferred by the German constitution and therefore cannot exceed those limits.
In its famous Solange I decision, the German court declared that it would review European Community acts for compatibility with fundamental rights “so long as” the Community lacked adequate rights protection.¹¹ The subsequent Solange II ruling accepted the developing system of EU rights protection but reaffirmed the court’s ultimate supervisory authority.¹²
More recently the German court issued a controversial judgment in 2020 concerning the European Central Bank’s bond-purchasing programme, commonly known as the PSPP judgment. The court concluded that the CJEU had exceeded its competence and declared the EU ruling inapplicable in Germany unless further justification was provided.¹³
Other constitutional courts have advanced similar arguments. Poland’s Polish Constitutional Tribunal ruled in 2021 that certain interpretations of EU treaties conflicted with the Polish constitution, while courts in France and Italy have insisted that national constitutional identity ultimately limits the reach of EU law.¹⁴
These disputes reveal the unresolved tension at the heart of the European project: the coexistence of a supranational legal order claiming primacy and national constitutions that continue to assert ultimate sovereignty.
The Deeper Constitutional Question
The Bulgarian ruling therefore represents more than a technical legal dispute about civil-status documentation. It illustrates the continuing evolution of the European Union into a hybrid constitutional system. The EU remains formally a union of sovereign states, yet its legal order operates with many of the characteristics of a federal constitutional system in which supranational law shapes domestic policy.
Freedom of movement—once conceived merely as a practical economic liberty—has become the central instrument through which this transformation occurs. By ensuring that EU citizens can live and move freely across national borders, the court inevitably encounters areas of law traditionally reserved to national legislatures. Each such encounter becomes an opportunity for judicial interpretation to expand the practical scope of EU rights.
Supporters of this process view it as the natural development of a union founded upon shared legal principles and the mobility of citizens. Critics regard it as a form of integration achieved largely through judicial precedent rather than democratic political debate.
What remains clear is that cases such as the Bulgarian dispute will continue to arise as long as the European Union remains both a union of sovereign states and a supranational legal order. The tension between those two realities is not an anomaly but one of the defining features of the European constitutional landscape.
¹ Reuters, “Blocking gender changes on IDs violates EU law, top court rules,” 12 March 2026.
² Court of Justice of the European Union, press release concerning legal gender recognition and freedom of movement, 2026.
³ Treaty on the Functioning of the European Union (Consolidated Version), Arts. 20–21.
⁴ Treaty on European Union (Maastricht Treaty), 1992.
⁵ Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve, Case C-184/99 (CJEU, 2001).
⁶ Coman and Others v Inspectoratul General pentru Imigrări, Case C-673/16 (CJEU, 2018).
⁷ V.M.A. v Stolichna obshtina, Case C-490/20 (CJEU, 2021).
⁸ Costa v ENEL, Case 6/64 (CJEU, 1964).
⁹ Amministrazione delle Finanze v Simmenthal, Case 106/77 (CJEU, 1978).
¹⁰ European Commission, “Infringement procedure,” official EU legal framework documentation.
¹¹ Solange I, Bundesverfassungsgericht (BVerfGE 37, 271), 1974.
¹² Solange II, Bundesverfassungsgericht (BVerfGE 73, 339), 1986.
¹³ Bundesverfassungsgericht, PSPP Judgment, 5 May 2020.
¹⁴ Polish Constitutional Tribunal ruling on EU treaty interpretation, 7 October 2021.
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