C-168/91

O P I N I O N OF MR JACOBS — CASE C-168/91

OPINION OF ADVOCATE GENERAL JACOBS delivered on 9 December 1992 *

My Lords, His name was entered in the marriage regis- Members of the Court, ter as 'Christos Konstadinidis'. O n 31 Octo- ber 1990 he applied to the registry office for the entry of his surname to be rectified from 'Konstadinidis' to 'Konstantinidis'. That request was forwarded, via the Landratsamt 1. The Amtsgericht Tübingen has asked the Calw (District Office), to the Amtsgericht Court to give a preliminary ruling on the Tübingen, which took the view that under interpretation of Articles 5, 7, 48, 52, 59 and the relevant provisions of German law the 60 of the EEC Treaty with regard to certain name entered in the marriage register must provisions of German law which require correspond to the name on Mr Konstantini- Greek names to be transliterated into Roman dis' birth certificate. It therefore obtained a characters according to a system that is pho- translation of the Greek birth certificate netically inaccurate. from a qualified translator, who conscien- tiously applied a system of transliteration developed by the International Organization for Standardization (ISO) ' which resulted in the applicant's name being rendered as 2. The applicant in the main proceedings 'Hrestos Konstantinides', with a horizontal is a Greek national who works in Altensteig bar written above the letter 'e' in the first (Germany) as a self-employed masseur and name and above the ' o ' and 'e' in the sur- assistant hydrotherapist. According to his name. The Landratsamt Calw thereupon Greek birth certificate, his first name is submitted an application for the entry in the Hréstos and his surname is Konstantinidés. marriage register to be corrected so as to cor- H e wishes those names to be transcribed in respond to the ISO system of transliteration Roman characters as 'Christos Konstantinidis' (except only that the horizontal bars were to on the ground that such a spelling indicates be replaced by acute accents 2 ). as accurately as possible to German speakers the correct pronunciation of his name in Greek. He also points out that his name is thus transcribed in Roman characters in his Greek passport.

4. The Amtsgericht Tübingen considers that, If rules recommended by the International as a matter of German law, the applicant's Organization for Standardization (ISO) name must be recorded in the marriage reg- exist, those rules shall be applied.' 3 ister as Hréstos Konstantinidés, even though that spelling is intensely distasteful to the applicant and does not convey an accurate As we have seen, an ISO standard for the impression of the way that his name is pro- transliteration of Greek names does indeed nounced in Greek. The Amtsgericht Tubin- exist and it results in the applicant's name gen arrives at that conclusion by the follow- being written 'Hréstos Konstantinidés'. ing process. German law requires names in registers of civil status to correspond to the names recorded on a person's birth certifi- cate. Registers are to be kept in the German 5. The Amtsgericht Tübingen considers that, language and in the German or Roman if Mr Konstantinidis is compelled to have his alphabet. Foreign names written in a lan- name spelt in accordance with the ISO stan- guage that uses a different alphabet are to be dard in the marriage register, his rights under rendered as far as possible by transliteration, Community law may be infringed. It has that is to say, each character in the foreign therefore referred the following questions to alphabet is to be rendered by the equivalent the Court: character in the Roman alphabet. In the case of Greek names a system of transliteration recommended by the ISO is to be used. That is in accordance with Article 3 of the Con- '1. Is it an encroachment, contrary to Arti- vention on the Representation of Names and cles 5 and 7 of the Treaty establishing Surnames in Registers of Civil Status (Con- the European Economic Community, vention N o 14 of the International Commis- on the rights of a national of a Member sion on Civil Status) of 13 September State of the European Communities 1973 (Bundesgesetzblatt 1976 II, p. 1473). who is an employed or self-employed Article 3 provides as follows: person covered by Articles 48, 52 and 59 et seq. of the said treaty for him to be obliged to allow his name to be entered in the registers of civil status of his host country, another Member State, against his express wishes, in a translit- eration differing from the phonetic tran- scription, whereby its pronunciation is modified and distorted?

7. In principle it is not for the Court of Jus­ 6. Before examining the legal issues raised tice to say that one system for transliterating by the questions set out above, it might be Greek names into Roman characters is better useful to consider the general problem of the than another. Since however the essence of conversion of names from one alphabet to Mr Konstantinidis' complaint is that the ISO another. The approach most commonly system produces an unacceptable degree of adopted may be described as phonetic tran­ phonetic distortion when applied to his scription. Under that method an attempt is name, it is worth considering briefly what made to convert the name from the source practical effects that system has. If the ver­ language (in this case Greek) into the target sion of the ISO system that has been placed language (in this case German) in such a way before the Court were used generally, there as to convey to a native speaker of the target is no doubt that it would seriously distort language the closest approximation possible the spelling of many Greek names. In of the correct pronunciation of the name. numerous respects it is bizarre and inaccu­ The advantage of that method is that the rate. For example, the Greek letter 'β', which name will suffer the least possible phonetic in ancient times may well have represented a distortion. The disadvantage is that, where sound like the ' b ' in the English word 'big', the alphabet into which the name is con­ is in modern Greek pronounced like the 'v' verted is used by several languages and the in 'very'. But the ISO system insists that it values assigned to some of its letters vary should be rendered by a 'b'. The influence of from one language to another, a different perceived notions about the pronunciation of spelling may be required for each language. classical Greek is also to be seen in the pro­ Writers and publishers, who may not of posed rendering of the vowels ' η ' and ' υ ' , course view the problem from the same per­ which in modern Greek are both pro­ spective as the Registrar of Marriages in Alt­ nounced like the vowel in the English word ensteig or the ISO, do not appear to be 'sheep'. Under the ISO system ' η ' is to be greatly troubled by the absence of a uniform rendered by 'e' (with a horizontal bar above transliteration of foreign names. Thus Span­ it) and ' υ ' by 'u'; the former might be pho­ ish newspapers speak of 'Jomeini', whereas netically accurate to an English speaker and in most countries the late ayatollah is the latter to a Welsh speaker, but neither referred to as 'Khomeini'; French journalists conveys the value of the Greek letters to a write 'Eltsine', whereas English ones write German speaker. In addition, the ISO system 'Yeltsin'; the name of the last president of the disregards the fact that ' υ ' is pronounced like Soviet Union is written variously as 'Gorba- an English 'v' or 'f' when preceded by ' a ' or chov', 'Gorbatschow' and 'Gorbaciov'; and 'ε'. These are not the only defects.

8. A good example of the distorting effect of the ISO system is provided by the name of Γιάννης Ψυχάρης (1854-1929; an extreme advocate of the use of demotic Greek). The The alleged violation of the applicant's name would normally be transliterated as rights under Community law 'Yannis Psycharis', but under the ISO system it would be rendered 'Giannés Puharés' 4 (assuming that acute accents are to be used in place of horizontal bars), which is by any standard misleading. Perhaps the most esoteric feature of the ISO system is the use of horizontal bars above certain letters. Such 10. Although the Amtsgericht Tübingen has signs can have no meaning at all, except for a referred two separate questions, it seems to reader who is conversant with the ISO me that in reality they amount to a single question: namely, whether a national of a Member State who has established himself as a self-employed person in another Member 4 — The 'P' in 'Puharés' has been written without an acute accent State, in which a different alphabet is used, is because the word-processors used at the Court are unable to place accents on capital letters. entitled by virtue of Articles 7 and 52 of the

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justified, since it is necessary in order to ren- the German courts will accept that interpre- der Greek names comprehensible in other tation of the Convention. The German Gov- countries. ernment's representative concedes that there would be a breach of the Treaty if a national of another Member State whose name is written in Roman characters in his passport 16. At the hearing the German Government were compelled to accept a different spelling modified its position somewhat. Its represen- of his name. tative referred to Article 2, first paragraph, of the aforesaid Convention of 13 September 1973, which provides as follows: 17. In order to determine whether Commu- nity law entitles Mr Konstantinidis to object 'Where an entry must be made in a register to the transliteration of his name in a partic- of civil status by an authority of a contract- ular way, it is necessary to examine: (a) ing State and there is presented for that pur- whether he suffers discrimination on pose a copy of, or an extract from, an entry grounds of nationality of a type that is pro- in a register of civil status or another docu- hibited by Article 7 of the Treaty, in con- ment indicating the surnames and first names junction with Article 52 thereof; and (b) in the same characters as those of the lan- whether, even in the absence of any discrimi- guage in which the entry is to be made, nation, his right of establishment under Arti- those surnames and first names shall be cle 52 of the Treaty is impaired, in particular reproduced literally without alteration or because the treatment accorded to him is a translation.' breach of his fundamental rights protected by Community law.

not expressly prescribe one form of treat- in principle within the scope of application ment for Greek nationals and another for of the Treaty, as required in order for the nationals of other Member States. Even if Mr prohibition laid down in Article 7 to operate. Konstantinidis became a naturalized Ger- A person who goes to another Member State man, he would still have to have his name in the exercise of the rights conferred on him transliterated in exactly the same way. The by the free movement provisions of Articles Commission contends that Mr Konstantini- 48 to 66 of the Treaty is 'in a situation gov- dis may, however, be the victim of indirect erned by Community law' and as such must (or covert) discrimination, inasmuch as the 'be placed on a completely equal footing German rules requiring names written in with nationals of the Member State': Case non-Roman characters to be transliterated in 186/87 Cowan v Trésor Public [1989] a particular way are more likely to affect ECR 195, at paragraph 10. The fact that the Greek nationals than nationals of Germany rules governing the writing of names in pub- or any other Member State. It is of course lic registers are in principle a matter for well established that the Treaty rules prohib- national law rather than Community law iting discrimination extend to covert, as well does not of course mean that any discrimi- as overt, discrimination: Case 152/73 Sotgiu nation in those rules is removed from the v Deutsche Bundespost [1974] ECR 153,at ambit of the Treaty. That much is clear from paragraph 11. paragraph 19 of the Cowan judgment.

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ordinary dealings with the German authori- 25. If Mr Konstantinidis is compelled to call ties or whether it is mandatory only in the himself 'Hréstos Kónstantinidés' when deal- marriage register and similar documents. ing with the German authorities, with his cli- Certainly, if Mr Konstantinidis were to suf- ents or with firms from which he himself fer financial loss as a result of being forced to buys goods or services (for example, when trade under a distorted version of his name, he insures his car or opens a bank account), there would be no case for arguing that the then I should say that, even without proof of matters complained of by him are so trivial actual financial loss, the inconvenience and and insignificant as to lie outside the concern unpleasantness thus inflicted on him are suf- ficient to entitle him to invoke the prohibi- of Community law. tions laid down by the Treaty.

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27. Thus I conclude that ultimately it does inasmuch as Greek names will be written in not matter whether the distorted spelling of the same way in all the contracting States. Mr Konstantinidis' name is required only in There are several defects in that argument. In official documents or whether he is also the first place, it is questionable whether uni- obliged to use it for the purposes of social formity is necessary or desirable. The Ger- and commercial intercourse or whether he man Government does not state what prob- sustains financial loss as a result. Even as lems would be caused if the transliteration of regards entries in official registers he is enti- Greek names were allowed to vary from tled to the same treatment as German country to country, in accordance with the nationals, unless there is objective justifica- different phonetic values attributed to the tion for treating him differently. Roman characters. There is no suggestion that fiscal and social security fraud, or crim- inal activity in general, would be greatly facilitated. Secondly, the Convention in question does not in fact achieve uniformity

It Greek names legible in non-Greek-speaking is doubtful whether there is any language in countries. I do not agree with that argument. the world in which names written 'Hréstos' Obviously, there is every justification for and 'Puharés' would be pronounced in a requiring the names of Greek migrant work- manner remotely resembling the Greek ers to be written in Roman characters in the names Χρστος (Christos) and Ψυχάρης 11 Member States that do not use the Greek (Psycharis). alphabet.

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30. Finally, I do not think that matters are everyone has the right to develop his person- changed much by Greece's having adhered ality in so far as he does not infringe the to the Convention of 13 September 1973. It rights of others and does not act in breach of is perhaps strange that the Greek Govern- the constitutional order or public morality. ment is now objecting to the use of a system The German court may also be thinking of of transliteration which is prescribed, indi- Article 1, paragraph 1, of the Grundgesetz, rectly, by a Convention to which it is itself a which states that the dignity of the individ- party. One possible explanation is that, when ual is inviolable and must be protected by all the Greek Government acceded to the Con- organs of the State. vention on 19 March 1987, it did not know that the ISO would later adopt a translitera- tion system of which it strongly disapproves. In any event, it is clear that if Mr Konstan- tinidis is entided under Community law to 33. The Commission refers expressly to object to the misspelling of his name, such a Article 2 of the Grundgesetz and also to right cannot be taken away from him by the Articles 5 and 8 of the European Convention Convention of 13 September 1973 or by on Human Rights. Article 5 grants the right Greece's accession to that Convention in to liberty and security, while under Article 1987. 8 everyone is entitled to respect for his pri- vate and family life, his home and his corre- spondence. The Commission considers that a requirement to spell one's name in a particu- lar way may in certain circumstances infringe (b) The issue of fundamental rights fundamental rights protected by Community law. In particular, that would be the case if such a requirement affected the right to free movement guaranteed by the Treaty.

respect the fundamental rights of persons with respect for his dignity and moral integ- who exercise their rights of free movement rity (apart from the prohibition in Article under the Treaty. 3 of 'degrading treatment' which, in its con- text, was no doubt intended to be of more limited scope). To some extent, that omission is repaired by provisions in the Constitu- tions of many Member States, including, as 35. The European Convention on Human we have seen, the German Grundgesetz. Rights does not contain any provision which expressly affirms the individual's right to his name and personal identity. In that respect it is in marked contrast to the American Con- vention on Human Rights, which provides in Article18 that 'Every person has the right to a given name and to the surnames of his par- ents or that of one of them.' That instrument does not of course form part of the Commu- 37. Under Article 10(1) of the Spanish Con- nity legal order. O n e instrument which the stitution the dignity of the individual and the Court has sometimes been willing to draw free development of his personality inter alia on as a source of fundamental rights is the are the foundations of the political order and International Covenant on Civil and Political social peace. Article 15 grants everyone the Rights, adopted by the United Nations Gen- right to life and physical and moral integrity, eral Assembly in 1966. The Covenant, which while Article 18 guarantees the right to has been ratified by all the Member States honour, personal and family privacy and the except Greece, was mentioned by the Court individual's image. In Portugal Article 25 of in its judgments in Case 374/87 Orkem v the Constitution states that the moral and Commission [1989] ECR3283, paragraph 31, physical integrity of persons is inviolable, and Joined Cases C-297/88 and while Article 26(1) grants everyone the right C-197/89 Dzodzi [1990] ECR I-3763, para- to inter alia his personal identity, good name graph 68. Article 24(2) of the Covenant states and reputation, image and privacy.

36. More surprising than the omission, from and property rights of every citizen. Article the European Convention on Human 40.3 is not confined to the specific rights set Rights, of a specific reference to the individ- out there, but may be extended to all rights ual's right to his name and personal identity which 'result from the Christian and demo- is the absence of a general provision recog- cratic nature of the State': Ryan v Attorney nizing the individual's right to be treated General 1965 IR 294, per Kenny J. In Italy

40. A person's right to his name is funda- 38. The last example is of particular interest mental in every sense of the word. After all, because it is, so far as I know, the only con- what are we without our name? It is our stitutional provision in a Member State name that distinguishes each of us from the which expressly prohibits the State from rest of humanity. It is our name that gives us depriving a citizen of his name. The explana- a sense of identity, dignity and self-esteem. tion for such a prohibition is that in the fas- To strip a person of his rightful name is the cist period of Italian history certain ethnic ultimate degradation, as is evidenced by the minorities were forced to Italianize their common practice of repressive penal regimes names (see U. de Siervo, in Commentario which consists in substituting a number for della Costituzione, edited by G. Branca, the prisoner's name. In the case of Mr Kon- Rapporti Civili, Arts 22 and 23, 1978, p. 20). stantinidis the violation of his moral rights, if At first sight the words 'for political reasons' he is compelled to bear the name 'Hréstos' might suggest that citizens may be deprived instead of 'Christos', is particularly great; of their names for 'non-political' reasons. not only is his ethnic origin disguised, since However, it has been suggested that that is 'Hréstos' does not look or sound like a not the case and that the jus nominis guaran- Greek name and has a vaguely Slavonic fla- teed by the Italian Constitution is an abso- vour, but in addition his religious sentiments lute right not subject to any limitations. (V. are offended, since the Christian character of Falzone, F. Palermo and F. Cosentino, La his name is destroyed. At the hearing Costituzione della Repubblica Italiana, 1969, Mr Konstantinidis pointed out that he owes p. 87). his name to his date of birth (25 December), Christos being the Greek name for the founder of the Christian — not 'Hréstian' — religion.

42. As the Court has held (see the judgment 42. The more difficult question is to deter- in Joined Cases C-60 and C-61/84 Cinéth- mine whether a person who exercises his èque v Fédération Nationale des Cinémas right of free movement under Articles 48, 52 Français [1985] ECR 2605, paragraph 25, and or 59 of the Treaty is entided, as a matter of the judgment in Case C-12/86 Demirel v Community law, to object to treatment Stadt Schwäbisch Gmund [1987] ECR 3719, which constitutes a breach of his fundamen- paragraph 28), it has no power to examine tal rights. On that point the Court's case-law the compatibility with the European Con- has developed considerably in recent years. vention on Human Rights of national rules The most complete statement of the present which do not fall within the scope of Com- position is contained in the judgment in Case munity law. O n the other hand, where such C-260/89 ERT [1991] ECR I-2925, where rules do fall within the scope of Community the Court said: law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those '41. With regard to Article 10 of the Euro- rules are compatible with the fundamental pean Convention on Human Rights, referred rights the observance of which the Court to in the ninth and tenth questions, it must ensures and which derive in particular from first be pointed out that, as the Court has the European Convention on Human consistently held, fundamental rights form Rights. an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guide- 43. In particular, where a Member State lines supplied by international treaties for relies on the combined provisions of Articles the protection of human rights on which the 56 and 66 in order to justify rules which are Member States have collaborated or of which likely to obstruct the exercise of the freedom they are signatories (see, in particular, the to provide services, such justification, pro- judgment in Case C-4/73 Nold v Commis- vided for by Community law, must be inter- sion [1974] ECR 491, paragraph 13). The preted in the light of the general principles of European Convention on Human Rights has law and in particular of fundamental rights. special significance in that respect (see in par- Thus the national rules in question can fall ticular Case C-222/84 Johnston v Chief Con- under the exceptions provided for by the stable of the Royal Ulster Constabulary combined provisions of Articles 56 and [1986] ECR 1651, paragraph 18). It follows 66 only if they are compatible with the fun- that, as the Court held in its judgment in damental rights the observance of which is Case C-5/88 Wachauf v Federal Republic of ensured by the Court.

44. It follows that in such a case it is for the Treaty, there can be no question of its being national court, and if necessary, the Court of justified on grounds of public policy under Justice to appraise the application of those Article 56(1) if it infringes his fundamental provisions having regard to all the rules of rights. Community law, including freedom of expression, as embodied in Article 10 of the European Convention on Human Rights, as a general principle of law the observance of which is ensured by the Court.' 45. But let us suppose that the view is taken that the German authorities' treatment of Mr Konstantinidis is not discriminatory. Does that mean that it cannot be contrary to Arti- cle 52, even though it infringes Mr Konstan- tinidis' fundamental rights? The implications 43. That judgment does not establish clearly, of that question are perhaps easier to see if a one way or the other, whether Mr Konstan- more dramatic example is considered. Sup- tinidis may, as a matter of Community law, pose that a Member State introduces a draco- invoke the protection of his fundamental nian penal code under which theft is punish- rights in the circumstances of the present able by amputation of the right hand. A case. The following points may be noted. national of another Member State goes to that country in exercise of the rights of free movement conferred on him by Article 48 et seq. of the Treaty, steals a loaf of bread and is sentenced to have his right hand cut off. Such a penalty would undoubtedly consti- tute inhuman and degrading punishment contrary to Article 3 of the European Con- 44. First, it cannot be said that the regula- vention on Human Rights. But would it also tions at issue in this case lie entirely outside be a breach of the individual's rights under the scope of Community law since they are, Community law, even though it were applied when applied to migrant workers, capable of in a non-discriminatory manner? I believe having a particularly adverse effect on the that it would. nationals of one Member State. Secondly, there are now at least two situations in which Community law requires national leg- islation to be tested for compliance with fun- damental rights: namely (a) when the national legislation implements Community law (paragraph 19 of the Wachauf judgment) 46. In my opinion, a Community national and (b) when a Treaty provision derogating who goes to another Member State as a from the principle of free movement is worker or self-employed person under Arti- invoked in order to justify a restriction on cles 48, 52 or 59 of the Treaty is entitled not free movement (paragraph 43 of the ERT just to pursue his trade or profession and to judgment). Thus it is clear that if, as I have enjoy the same living and working condi- suggested, the German authorities' treatment tions as nationals of the host State; he is in of Mr Konstantinidis constitutes discrimi- addition entitled to assume that, wherever he nation prohibited by Articles 7 and 52 of the goes to earn his living in the European

49. As regards the second argument, I do not think that the danger of reverse discrimi- 48. As regards the first argument, although nation can be a valid argument for limiting most of the cases in which the Court has rec- the scope of the rights conferred by the ognized a breach of Article 52 concerned Treaty on persons who seek their livelihood discriminatory measures, I do not think that in another Member State. The notion that the case-law should be read as establishing the free movement provisions of the Treaty that a measure can never be contrary to Arti- merely prohibit discriminatory measures was cle 52 simply because it is non- abandoned long since in relation to goods (in discriminatory (see on the one hand the the 'Cassis de Dijon' judgment; Case comments of Advocate General Lenz in 120/78 Rewe v Bundesmonopolverwaltung Case 221/85 Commission v Belgium [1987] für Branntwein [1979] ECR 649) and more ECR 719, at p. 730 et seq, and on the other recently in relation to the provision of ser- hand the comments of Advocate General vices (Case C-76/90 Säger v Dennemeyer Van Gerven in Case C-340/89 Vlassopoulou [1991] ECR I-4221, paragraph 12). Once it is

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Conclusion

52. I am accordingly of the o p i n i o n that the questions referred t o the C o u r t b y t h e Amtsgericht T ü b i n g e n should be answered as follows:

W h e r e a national of a M e m b e r State establishes himself, p u r s u a n t t o Article 52 of the E E C Treaty, in a n o t h e r M e m b e r State w h i c h uses an alphabet different from t h e o n e used in his o w n State, Articles 7 and 52 of the Treaty are infringed b y rules o r practices of the h o s t State w h i c h require his n a m e t o be entered in a register of civil status, against his wishes, in a transliteration w h i c h , as in circumstances such as those of the p r e s e n t case, seriously misrepresents the correct p r o n u n c i a t i o n of t h e name.

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