Fundamental freedom and names in the EU

by George Rosa-Acosta, student of the Master's degree in EU Law of UMinho

Case law from the European Court of Justice demonstrates that in the domain of establishing identity and citizenship, the names of natural persons are paramount. Naming practices straddle public and private law: they are the means by which a state identifies its citizens and by which those citizens embark upon most joint activities with others. In order to rationalise these practices, European Union harmonisation through its long historical arc — helped along copiously and often quietly by the ECJ — involves an evolving system of principles for answering the politically charged imbroglios provoked by disputes over naming rights and formulae. Three cases are of singular importance in defining this emerging EU naming regime: Konstantinidis v Stadt Altensteig, Garcia Avello v Belgian State and Sayn-Wittgenstein v Landeshauptmann von Wien. These cases demonstrate that the ECJ is willing to oblige Member-State liberalisation in conformity with the emerging EU personal nomenclature regime, but not at the point of surrendering bedrock cultural-juridical values that are consistent with the progressive ideology of EU human rights principles.

In Portugal and Spain compound surnames are the norm. As the Advocate General Jacobs notes in his opinion, the Portuguese system is a literal mirror for the Spanish system in that it reverses the latter’s tendency toward having maternal names follow those that are paternal. In each Iberian case a compound surname typically consists of the one dominant surname from each parent, though in Portugal one can actually elect up to four constituent surnames to pass on to one’s children from the pool formed by the last names of oneself and one’s partner.

Even before the Spain-oriented Garcia Avello case, the ECJ began shaping an EU-wide naming regime with its decision in Case C-168/91 Christos Konstantinidis v Stadt Altensteig (1993), which states that in accordance with article 52 of the EEC Treaty, a Member-State cannot impose a transliteration of a Greek citizen’s name which distorts its pronunciation and thereby creates the hazard that potential clients may confuse his identity. As the decision reads,”[a]rticle 52 of the Treaty constitutes one of the fundamental legal provisions of the Community. By prohibiting any discrimination on grounds of nationality resulting from national laws, regulations or practices, that article seeks to ensure that, as regards the right of establishment, a Member State accords to nationals of other Member States the same treatment as it accords to its own nationals”.

Christos Konstantinidis, a Greek national, was self-employed in Germany when the local Registry Office transliterated his name (Χρήστος Κωνσταντινίδης) as “Christos Konstadinidis”. He requested that this spelling be changed to Konstantinidis so as to conform to the Latin transliteration in his passport, which most approximates the original pronunciation. The district court instead followed German case law to apply a rule of the Convention on the Representation of Names and Surnames in Registers of Civil Status, signed by both Germany and Greece, resulting in the transcription, “Hréstos Kónstantinidés”. This unhappy change of course resulted in an appeal, a staying of proceedings, and the ECJ’s preliminary ruling.

The year after Konstantinidis, the Strasbourg Court declared that the European Convention on Human Rights’ Article 8 protects names as essential to family life. And a decade later came the ruling in case C-148/02 Garcia Avello v Belgian State (2003). At stake on the surface here were the surnames for children from a mixed-nationality couple resident in Belgium. Carlos Garcia Avello was Spanish, Isabelle Weber was Belgian and their children had dual citizenship. As we have seen, Hispanic tradition and law mandate a particular pattern for surnames that is at odds with the dominant Western European system of children born in wedlock receiving their fathers’ single last name. The parents registered their children at the Spanish embassy consistent with this pattern, which produced the compound ‘Garcia Weber’, but the Belgian civil registry listed them under the father’s surname of ‘Garcia Avello’. Hence the Belgians imposed their tradition of paternally derived surnames upon citizens from another Member-State, with the unwieldly (and interconstitucional) result of failing to truly satisfy either Belgian or Spanish tradition: neither Belgian because Belgian surnames are typically single, nor Spanish because Spanish surnames emerge from both paternal and maternal elements.

For the Belgian State, “the immutability of surnames is a founding principle of social order, of which it continues to be an essential element”. Furthermore, the children’s rights were not infringed insofar as they could circulate in every Member State other than Belgium using the names and identities conferred by their Spanish nationality, which allegedly “makes it possible to avoid risks of confusion as the identity or parentage” of the children. The Danish government for its part argued that the Belgian practice “contributes to facilitating integration…in Belgium and to attainment of the objective pursued by the principle of non-discrimination”.

The ECJ, however, found these arguments unpersuasive and ruled that EC Articles 12  and 17 prevent a Member-State from refusing to permit its own citizens who are also citizens of another Member State to adopt surnames consistent with the laws of the second Member State. Article 12, we must recall, prohibits discrimination against nationals of other Member-States. The Court also cited Article 18 but only to establish that the case indeed fell within the Community framework. It did not manage, however, to preemptively silence the subsequent criticism related to whether the ECJ had unduly interfered in a matter which was properly internal to Member States alone.

More recently, in case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (2010), the ECJ seemed to rein in its interventionism, and affirm once again the preeminence of national citizenship. The case concerned an Austrian citizen who had been adopted at age forty-seven by a noble in Germany, where she was resident, and consequently listed herself with the Austrian civil register as ‘Ilona Fürstin von Sayn-Wittgenstein’, adding ‘Fürstin von’ to her surname in its previous incarnation. This nobiliary particle served as an important marker of authority in her occupation as a salesperson of castles and other luxury real estate. She had used it continuously for fifteen years. The German and Austrian authorities subsequently determined that they had erroneously permitted Sayn-Wittgenstein to bear the nobiliary particle, when they should instead have heeded the historic Austrian ban on noble titles. Hence the ECJ received the request for a preliminary ruling on the question of whether the Austrians’ non-recognition of Sayn-Wittgenstein’s German-acquired title violated Article 21 of the TFEU (the old Article 18 under the EC). The Luxembourg court upheld the destitution of Sayn-Wittgenstein’s nobiliary particle, citing the EU’s obligation to respect Member States’ national identities enshrined in Article 4(2) TEU, and the possibility of derogations from fundamental freedoms in the name of objectively enforcing public policy.

It is in this tethering of the prohibition to Austria’s fundamental values as a nation and constitutional polity that we see the case’s strongest theoretical connection to each previously discussed ruling. In Konstantinidis, the weight of long-established tradition and bedrock constitutional values fell in favour of the Greek applicant, thus easily tipping the scale. The Germans were here denying a man the right to his very name on the basis of a detested, obscure and visibly flawed convention. It was not so easy to decide Garcia Avello — the Belgians argued that having a single paternally-derived surname was essential to the social order in their country, and that the absence of it would retard assimilation into the nation for immigrants and dual nationals. In the cases from 1993 and 2003, at stake were congresses of unmet cultures: a Greek in Germany, Spanish children in Belgium (with dual citizenship). But the cultural-juridical differences between Austria and Germany are not so acute. The absence of a language barrier mattered greatly to the court, and the principle of cultural difference was a constitutional one: as the Italian and Slovak Governments contended, the Austrian ban on noble titles “is fundamental in the republican order”. It is an underlying value of the country’s entire cultural-juridical-political armature. The ECJ followed a similar logic in the celebrated Omega case, in which it determined that Germany was entitled to privilege its constitutionally-enshrined national values that banned a video game which simulates killing over the country’s obligation to protect fundamental market freedoms.

It is clear that the ECJ’s central role in European Union harmonisation has entailed intervention in the way that Member-States handle affairs over which they alone have had sovereignty for their entire existence. The emergence of an EU nomenclature regime is a prime example of this process.

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