Some time ago, in 2006, we noted a strange case, C-96/04Standesamt Stadt Niebüll in which the Court of Justice declined jurisdiction to respond to a preliminary question referred by a national court exercising an administrative rather than a judicial function.
That case came back to the Court of Justice as Case C-353/06 Grunkin and Paul. This time there was no doubt that the court referring the question was exercising a judicial function as it clearly had to adjudicate a dispute. Consequently, the Court dealt with the substance of the case which concerned the relationship between the form of surname of a person and the law of the nationality of that person.
The facts are as follows. The case concerns the family name of a German child of German parents. According to German law, a person’s name falls to be decided by the law of the State of his or her nationality. Also, German law does not allow a child to have a double-barrelled name made of a his father's and mother's surnames. But, the child was born in Denmark and was registered there with just the double-barrelled name not allowed in Germany, but allowed in Denmark. The Registrar’s Office (Standesamt) in Germany refused to recognize the double-barrelled surname as it had been given in a manner contrary to German private international law (according to the law of the nationality of the child). To cut a long story short, the Registrar's office referred the matter to the Amtsgericht (Local Court). But then the Local Court wondered whether EC law requires that the name that is valid under Danish law must be recognized by German law and referred the matter to the Court of Justice in Case C-96/04Standesamt Stadt Niebüll. As the Court of Justice declined jurisdiction at that time, the German Local Court refused to register the child's double-barrelled name. The parents then appealed to the Amtsgericht Flensburg which held that it could not order the Standesamt Niebüll to register a surname which is not allowed under German law, but had doubts as to whether it is compatible with EC law for a citizen of the Union to be required to bear a different surname in different member States.
The Court of Justice held that, in the circumstances of this case, it was contrary to EC law to require a person to have different surnames in different member States. The Court held that Article 18 EC precludes the authorities of a member State, in applying its national law, from refusing to recognise a child’s surname, as determined and registered in another member State in which the child – who, like his parents, has only the nationality of the first Member State – was born and has been resident since birth.
The Court first stated that there was a connecting factor with EC law. It stated that while the rules governing a person’s surname are matters coming within the competence of the member States, the latter must, when exercizing that competence, comply with EC law. The situation of the child in this case falls within the scope of EC law because he is a national of one member State and is lawfully resident in the territory of another member State. The Court finds that having to use a surname, in the member State of which the person concerned is a national, that is different from that conferred and registered in the member State of birth and residence is liable to hamper the exercise of the right, established in Article 18 EC, to move and reside freely within the territory of the member States. The Court gave quite a long list of examples of how having different names in different states is likely to cause trouble. Thus, the Court recalled its caselaw according to which national legislation of a member State that places certain of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another member State is a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union (see Case C-406/04 De Cuyper, paragraph 39, and Case C-499/06 Nerkowska, paragraph 32).
The German government tried to justify their refusal to register a double-barrelled name on two grounds.
First, the German, and indeed other governments, stated that they considered nationality as the sole connecting factor for the determination of surnames, and that such a connecting factor constitutes an objective criterion which makes it possible to determine a person’s surname with certainty and continuity, to ensure that siblings have the same surname and to preserve relationships between members of an extended family. That seems a pretty strong justification. But the Court rejected it. It held that none of the grounds put forward in support of the connecting factor of nationality for determination of a person’s surname, however legitimate those grounds may be in themselves, warrants having such importance attached to it as to justify, in circumstances of this case, a refusal by the authorities of a member State to recognize the surname of a child as already determined and registered in another member State in which that child was born and has been resident since birth.
The Court was clearly not impressed with nationality as a connecting factor. It went on to the effect that in so far as the connecting factor of nationality seeks to ensure that a person’s surname may be determined with continuity and stability, in circumstances of this case, that connecting factor will result in an outcome contrary to that sought: Every time the child crosses the border between Denmark and Germany, he will bear a different name.
The second justification advanced by the German government seems, to a non German, quite frankly hilarious. That government stated that double-barrelled names should not be allowed for reasons of convenience because it must be possible to limit the length of surnames! When one wonders just how mind-bogglingly polysyllabic many nouns are in the German language, one just has to laugh incredulously at such a justification. Well, the Court was unimpressed too and held tartly that administrative convenience was no excuse for maintaining an obstacle to free movement.