C-148/02

OPINION OF MR JACOBS — CASE C-148/02

OPINION OF ADVOCATE GENERAL JACOBS delivered on 22 May 2003 1

1. This case concerns the surname borne by 4. The Belgian Conseil d'État (Council of children born in Belgium to a married State) now wishes to know whether such a couple resident there. The father is a refusal might be precluded by principles of Spanish national, the mother Belgian, and Community law such as those relating to the children have dual nationality. citizenship of the European Union and freedom of movement for citizens.

2. On registration of their births in Bel- gium, the children were given the double surname borne by their father — Garcia Avello — composed in accordance with Spanish law and custom of the first element Personal naming systems of his own father's surname and the first element of his mother's surname.

5. In Europe, people generally bear names of two kinds. 2 There are what I shall call given names, which are seen (however 3. The parents subsequently applied to the common they may be) as a personal, Belgian authorities to have the children's intimate and individual identification, and surname changed to Garcia Weber so that there are surnames (I use the term in a it reflected the Spanish pattern and com- broad sense), which almost always identify prised the first element of their father's a person by reference to his or her family or surname, followed by their mother's lineage and are in that connection often (maiden) surname. That application was viewed as an essential part of an inalienable refused as contrary to Belgian practice. 2 — It is also possible — as, for example, in Sweden — for a person to Dear a 'middle name' which partakes to a certain 1 — Original language: English. extent of both categories.

7. In order to appreciate the significance of the present case, it may be helpful to consider briefly the range of rules in the Member States governing the ways in 6. The very 'naming of names' reveals which surnames are determined and may differences and difficulties. In Dutch, be changed. For the sake of simplicity, I French and German, for example, the shall look essentially at the type of situation general word for 'name' designates the involved in the main proceedings, that of surname, the given name being referred to the surname given to a child born to a as a forename. Yet that seems inappropri- married couple. In other cases — for ate for Hungarians, who are expected example where the parents are not married shortly to become citizens of the Union at the time of the child's birth, where a and who place the surname before the parent's surname is later changed through given name. 3In Italian and Spanish (and to marriage, divorce and/or remarriage, or a large extent in English), the general word where the child is adopted — the position for 'name' is reserved for the given name, a may differ. different word being used for the surname. To refer to the surname as the 'family name' may be misleading since not all members of the same family necessarily bear the same surname. For example, in Iceland (not a Member State of the Union but within the EEA), most people are identified by a given name and an indi- Applicable law cation that they are the son or daughter of their father (or mother), similarly identified by given name alone. 4 Nor however is 'patronymic' necessarily accurate: a sur- name may be a 'metronymic', and it is 8. In the event of a conflict between legal systems governing a person's surname, 3 — Indeed even the French, who refer to the given name as a most Member States give priority to the 'prénom', regularly place it after the surname in official or law of his or her nationality as the law semi-official contexts. 4 — Siblings thus usually bear different 'surnames' depending on governing personal status. Denmark and their sex — the Icelandic word for a surname actually Finland however apply their own law to means an identification name — and in Icelandic name lists and directories, it is usual to proceed by alphabetical order persons domiciled in their territory; in of given name. However, a minority of families in Iceland Sweden, Swedish law applies to all Nordic do have a family surname which can be passed on unchanged from generation to generation. citizens domiciled there, the law of the

13. The possibility of combining both par- ents' surnames in the child's surname is the subject of conflicting rules in different Member States. In some, it is specifically 10. In most Member States, children in fact allowed or even imposed, in others specifi- bear the same surname as their father, cally prohibited. In Denmark, it appears to although the degree to which that is be possible to hyphenate the two surnames dictated by law rather than tradition varies. but not to combine them without a hyphen. 7The rule in Portugal appears to be considerably more flexible: a child may 5 — It is interesting to note that, at least in Finland and Sweden, the 'domicile' rule does not apply to Icelandic nationals, precisely because of the difference between naming systems. 6 — At least in a case such as that of the children concerned here, 7 — Although, as in Sweden, there is provision for the personal where the foreign nationality was acquired at birth by virtue use of a 'middle name' which may be the surname of the of the law of the foreign country. In certain other situations, parent whose surname is not borne as such. Such a middle other rules may apply the law of the most recent habitual name cannot however be passed on to subsequent gener- residence or of the nationality most recently acquired. ations.

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bear a surname composed of up to four 16. A number of proposed changes to the elements chosen among the surnames borne law have been placed before the Belgian by either or both parents or, in effect, by federal legislature. If adopted, those one or more grandparents, although it changes would allow greater freedom in seems that surnames are in fact generally the choice of surnames, possibly including formed along lines which mirror the Span- the possibility of following principles simi- ish system (literally, in that the order of the lar to those used in Spain. However, at the paternal and maternal elements is usually hearing the representative of the Belgian reversed). Government pointed out that those pro- posals were made on the initiative of individual legislators rather than by the government, and that their examination had been postponed sine die in the light of forthcoming parliamentary elections.

Change of surname proof that there are serious grounds for the change. 8Such grounds may include the fact that the current surname gives rise to ridicule or is a foreign name which makes it more difficult for the holder to integrate into Belgian society. One specific ground 19. As with the determination of surnames, considered to be serious is where children there is wide variation between the of the same parents bear different sur- Member States as regards the circum- names, one determined by Spanish law and stances in which a person may acquire or the other by Belgian law. In Spain too, use a surname other than that which good cause must be shown. In both coun- appears on his or her birth record. For the tries, the possibility of applying for a most part, the connection between an change of surname is confined to the State's individual and his or her surname is own nationals. regarded as lifelong, both in law and as a matter of social practice (with the excep- tion of changes occurring on the creation and/or dissolution of marriage). Exceptions to the general principle are however poss- 2 2 . In some Member States — for ible. example, France — although the provi- sions governing a change of name in the registers of civil status are strict, it is possible and lawful to use pseudonyms or aliases in daily life and even on some official documents. Such names are purely personal and cannot be passed on to descendants. There does not, however, 20. Again, the most liberal position is to be appear to be any such tolerance in Belgium. found in the United Kingdom, where it is possible either simply to use a different name in daily life, without going through any formality whatever, or to change one's name officially by deed poll or statutory declaration, a process which in general requires no authorisation. In most other Member States, however, an official change Relevant Treaty provisions of name must be approved by the auth- orities and some good cause for the change must be shown.

1. Citizenship of the Union is hereby estab- lished. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall com- 'Within the scope of application of this plement and not replace national citizen- Treaty, and without prejudice to any ship. 10 special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.'

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. 25. In addition, Articles 39 and 43 EC have been mentioned. Article 39 guarantees freedom of movement for workers and Article 43 prohibits restrictions on the freedom of establishment of nationals of one Member State in the territory of Article 18 another. Limitations on those freedoms may however be justified on grounds of public policy, public security or public health (Articles 39(3) and 46(1) EC).

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. European Convention on Human Rights

9 — Until 30 April 1999 (thus at the time when the decision contested in the main proceedings was adopted and at the time when those proceedings were commenced) Articles 8 and 8a of the EC Treaty; however, it is more convenient to refer, as the national court does in its question, to the 26. Article 8 of the Convention has been present numbering. 10 — The last sentence of this paragraph was added by the cited in the course of the proceedings. It Treaty of Amsterdam, with effect from 1 May 1999. reads as follows:

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30. Under Article 2, the law designated by 33. The type of problem arising in the the convention is to apply even if it is not present case is addressed in a different way the law of a Contracting State and, under by another ICCS Convention on the issue Article 4, the application of that law may of a certificate of differing surnames, 15 be excluded only if it is manifestly incom- Article 1 of which provides: patible with public policy.

' 1 . The certificate of differing surnames created by this Convention is intended to facilitate proof of identity for persons who, owing to differences between the laws of 31. That convention does not cover cases certain States, particularly regarding mar- of dual nationality. The explanatory report riage, filiation or adoption, are not desig- acknowledges the problem but explains nated by one and the same surname that it was decided that 'the subject of names was too limited in scope for a rule to be laid down'.

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Article 3 requires such certificates to be is to be 'registered immediately after birth accepted in each Contracting State 'as and shall have the right from birth to a evidencing the correctness of the particulars name'; and under Article 8(1): 'States they contain concerning the different sur- Parties undertake to respect the right of names of the person designated therein, the child to preserve his or her identity, unless and until the contrary is proved'. including nationality, name and family relations as recognised by law without unlawful interference'.

16 — A further ICCS Convention on changes of surnames and 38. In 1995, the parents formally requested forenames, Convention No 4 signed in Istanbul on 4 September 1958 (and again ratified by Spain but not the Belgian authorities to change their Belgium), does not contain any provisions relevant to the present case, except to the marginal extent that each children's surname from Garcia Avello to Contracting State undertakes not to authorise name changes for nationals of another Contracting State unless Garcia Weber. They pointed out that the they are also nationals of the first-mentioned State. Spanish system of surnames was deeply 17 — Adopted and opened for signature, ratification and acces- rooted in Spanish law, tradition and cus- sion by General Assembly resolution 44/25 of 20 November 1989; ratified by Spain on 6 December tom to which the children felt more inti- 1990 and by Belgium on 16 December 1991 and entered mately related. For the children to bear the into force in those States on the 30th day following the respective dates of ratification. surname of Garcia Avello suggested, under I - 11624

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(iii) since Belgian children take the surname of their father alone, the grant of a different surname may, in Belgian society, raise questions as to a child's parentage; 40. Mr Garcia Avello challenged that refusal before the Conseil d'État on a number of grounds, in particular that it infringed both the Belgian Constitution and (iv) to reduce the difficulties associated Article 18 EC because it treated two with dual nationality, applicants are different situations (that of children with asked if they wish to adopt only the purely Belgian nationality and that of those father's first surname; exceptionally, where there are few connecting factors to Belgium or it is appropriate to 18 — On the grounds, it was stated at the hearing, that such a change would not reflect either the Spanish or the Belgian system and that Garcia was an extremely common surname. 19 — Cited above in note 13.

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re-establish the same surname among Court of Justice for a preliminary ruling: siblings, a favourable decision may be taken but in this case those conditions were not met;

44. Written observations have been lodged by Mr Garcia Avello, the Belgian, Danish and Netherlands Governments and the 43. It has therefore stayed the proceedings Commission, all of whom also presented and referred the following question to the oral argument at the hearing. I-11626

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Assessment situation of the children itself falls within the sphere of Community law.

45. The Belgian, Danish and Netherlands Governments contend that the situation in the main proceedings does not fall within 48. The context of that difference of views the sphere of Community law at all. That is the Court's consistent case-law to the question must be examined first, before it effect that no rights are conferred by the can be considered whether the type of Treaty unless there is a sufficient connec- refusal in issue may infringe the rights of tion with Community law to justify the European Union citizens and, if so, whether application of its provisions. Where free- it may none the less be justified. dom of movement is concerned, there is no such connection when the situation in issue concerns relations between a Member State and one of its own nationals who has never exercised such freedom. 20 In Uecker and jacquet 21 the Court confirmed that 'citi- zenship of the Union, established by Article Does the situation fall within the sphere of [17 EC], is not intended to extend the scope ratione materiae of the Treaty also to Community law? internal situations which have no link with Community law.... Any discrimination which nationals of a Member State may suffer under the law of that State fall within 46. In this regard it is relevant to identify the scope of that law and must therefore be who is affected by the refusal to change the dealt with within the framework of the children's surname. internal legal system of that State.'

him and his wife acting 'as parents and 52. Second, I cannot in any event agree that legal representatives of their minor the situation of the children themselves is children', but the Ministry of Justice's two wholly internal to Belgium. Even if they responses to that application were have Belgian nationality, were born in addressed to Mr Garcia Avello alone and Belgium and have never resided outside it is Mr Garcia Avello who is the applicant that country, they none the less also possess in the annulment proceedings before the the nationality of another Member State. Conseil d'État. More importantly, the issue That fact is inseparable from the exercise is not the choice of a surname for the by their father, whose dependants they are, children viewed independently but the way of his right to freedom of movement. in which the surname borne by one gener- Whilst the 1930 Hague Convention entitles ation is to be determined by the name or the Belgian authorities to treat the children names borne by the previous generation; as Belgian nationals within Belgium, it does indeed, the Belgian Government lays great not require those authorities to ignore their stress on this aspect of the case. Clearly other nationality. If their mother had not such an issue concerns both generations had Belgian but Spanish nationality, their and it is just as much in the father's interest situation as dependent children of nationals to ensure that his surname is passed on in of a Member State having exercised free- accordance with the principles on which it dom of movement within the Community was formed as it is in the children's interest would clearly have fallen within the sphere to inherit a surname in the appropriate of Community law. From the point of view manner and form. of that law, the fact that they possess the nationalities of two Member States is relevant and it cannot be acceptable that one nationality should eclipse the other depending on where they happen to be. 24

57. There is no doubt that Community law does not itself regulate the registration, or any change to the registration, of names in 55. First, as I have stated, both Mr Garcia registers of births, marriages, deaths or civil Avello and his children may object to the status. Such matters are in principle for the fact that he cannot pass his surname on to Member States to regulate, in compliance them — and they cannot inherit it from with any applicable provisions governing him — in accordance with the principles private international law aspects, provided on which it was formed. That is no mere that in doing so they do not act in any way abstract objection since, as has been which is incompatible with their obli- pointed out, application of the Belgian gations under Community law. system to a Spanish surname is liable to present a distorted image of family rela- tionships to those familiar with the Spanish system: Mr Garcia Avello's children appear to be his siblings. 25

59. In my Opinion in that case, I con- to use, in the pursuit of his occupation, a sidered primarily that his rights under transliteration of his name used in the Community law had been violated because registers of civil status which modifies its he had suffered discrimination, prohibited pronunciation and if the resulting distor- by the joint provisions of what are now tion entails the risk that potential clients Articles 12 and 43 EC, on account of the may confuse him with other persons. fact that essentially only Greek nationals were obliged to accept in Germany a transliteration of their names likely to cause both loss of dignity and inconven- ience in daily and professional life. Second- arily, I took the view that the transliter- ation in question could infringe his funda- mental rights as set out in, inter alia, the 61. In the present case, the Commission European Convention on Human Rights submits that the introduction of citizenship and as guaranteed to any Community of the Union, with its attendant enjoyment national exercising his right of freedom of of all the rights conferred by the Treaty — establishment. including, thus, the right to be free from any discrimination on grounds of national- ity — is a new factor enabling the Court to reach a decision in this case on a rather broader basis than it did in Konstantinidis. I agree that Article 17 makes clearer the applicability of the principle of non-dis- crimination to all situations falling within the sphere of Community law, without there being any need to establish a specific interference with a specific economic free- dom.

63. I disagree. What is at issue is a refusal to change a surname so that it (i) reflects the paternal surname in accordance with the way that surname itself was formed and 65. It also however affects those in the (ii) avoids any discrepancy between the position of Mr Garcia Avello, since it is forms of surname registered by the auth- their surname, formed according to the law orities of two Member States both of whose of their nationality, which is being passed nationalities are held by the bearer of the on to their children in a form inappropriate surname. It appears that the Belgian auth- to the way in which it was itself formed. orities will not consider themselves com- The refusal to allow Mr Garcia Avello's petent to make any change to the name of a surname to be passed on in accordance person who is not a Belgian national, with its method of formation is a con- whether that person possesses any other sequence of his exercise of the right of nationality or not. The first aim described freedom of movement since, had he not above would appear to be relevant above exercised that right, the situation in which all, and the second aim only, when another the refusal was made would not have nationality is also present. Since a change arisen. The existence of an administrative of surname may be accorded under Belgian practice leading systematically to such a law when serious grounds are given for the refusal is thus likely to render the exercise application, a systematic refusal to grant a of that right less attractive. change when the grounds given are linked to or inseparable from the possession of another nationality must be regarded as discriminating on grounds of nationality. Such a practice in fact accords the same treatment both to those who, as a result of possessing a nationality other than Belgian, bear a surname or have a parent who bears a surname not formed in accordance with 66. Having reached the view that the Belgian rules and to those who possess only circumstances of the case reveal a discrimi- Belgian nationality and bear a surname nation on grounds of nationality prohibited formed according to those rules, despite the by Articles 12 and 17 EC, read together, I fact that their situations are objectively do not consider it necessary to examine different. whether there is an infringement of any other fundamental right guaranteed by Community law, in particular as regards freedom from interference in private and family life in accordance with Article 8 of the European Convention on Human 64. That discrimination clearly affects Rights. In that regard, it may be noted that those — in this case the children — who the European Court of Human Rights has

67. Discriminatory treatment may be justi- fied if it is based on objective consider- ations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national rule or practice. 30 69. I would accept that the aim of pre- venting confusion over identity by placing limitations on the right to change surnames is a legitimate one. It is desirable to avoid such confusion both in relations between the individual and the authorities and in 68. The Belgian Government argues that relations among individuals. Excessive free- the administrative practice in question is dom in such matters might well offer opportunities for criminal or dishonest behaviour. 29 — See, for example, the decisions on admissibility of 27 April 2000 in Bijleveld v Netherlands and of 27 September 2001 in GMB and KM v Switzerland. 30 — See, for example, D'Hoop, cited above in note 23, at 31 — 23 August 1794, in the French Revolutionary Calendar paragraph 36. then in force.

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71. As regards social order in the broader sense, it does not seem to me that there is any overriding public interest in ensuring 73. Nor does it seem to me that the fact that one particular pattern of surname that the effects of the refusal may be limited transmission should always prevail for the to Belgium in any way limits their serious- citizens of a Member State within its ness for those concerned. From the point of territory. This is a field in which both legal view of the cultural objection to seeing the rules and social practice have been chang- surname passed on in a manner other than ing in recent years, and continue to change, that in which it was designed to be passed throughout the European Union. Increases on, the effects are felt for as long as the in numbers of divorces and remarriages, family is resident in Belgium. From the together with a significant decrease in the point of view of the practical difficulties social stigma of illegitimacy, have consider- which arise, the effects may be felt through- ably reduced the rigidity of expectations as out the European Union since the children to identity of surname between father and in fact bear two different surnames. 33 child. Increased mobility for citizens of the Union has led to increased familiarity with other naming systems. Thus, whilst con- 32 — See the preamble to the Treaty on European Union and formity with the norm in the home Articles 3(1)(q) and 151(4) EC. Member State remains one factor to be 33 — Such difficulties might, it is true, be attenuated if Mr Garcia Avello's children were to obtain from the Spanish taken into consideration when deciding authorities a certificate of differing surnames in accord- ance with the 1982 Hague Convention. However, the whether it is in the interest of a child — position under Community law cannot be affected by an intergovernmental convention binding (at present) on only or of society — for his or her surname to four Member States. Indeed, the approach of Community be changed, it is neither the only nor the law should be to prevent such situations from arising within its sphere of application, rather than to lessen their preponderant factor in that regard. effects.

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