CELEX: 62004CJ0096
Preliminary reference
Determination of a child's surname
Procedure to transfer that determination to one of the parents
Lack of jurisdiction of the Court

This reference for a preliminary ruling concerns the interpretation of Articles 12 EC and 18 EC.
The reference was made in the course of proceedings brought by the Standesamt Stadt Niebüll (the Registry Office, Niebüll)
(‘the Standesamt’) in order to transfer the right to determine a child’s surname to one of his parents. They had previously
refused to give the child any name other than a double-barrelled name composed of their respective surnames, under which that
child was already registered in Denmark where he was born.

National law

Private international law
Paragraph 10(1) of the Law introducing the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch) (‘the EGBGB’) provides:
‘A person’s name falls to be decided by the law of the State of his or her nationality.’

Civil law
As regards the determination of the name of a child whose parents bear different surnames, Paragraph 1617 of the German Civil
Code (Bürgerliches Gesetzbuch) (‘the BGB’) provides:
‘(1)      If the parents do not share a married surname but have joint custody of the child, they shall, by declaration before a registrar,
choose either the father’s or the mother’s surname at the time of the declaration to be the surname given to the child at
birth. …
(2)      If the parents have not made that declaration within a period of one month following the child’s birth, the Familiengericht
shall transfer the right to determine the child’s surname to one of the parents. Subparagraph 1 shall apply
mutatis mutandis
. The court may lay down a time-limit for the exercise of that right. If the right to choose the child’s surname has not been
exercised on the expiry of that period, the child shall bear the surname of the parent to whom the right was transferred.
(3)      Where a child is born outside German territory, the court shall not transfer the right to choose the child’s surname in accordance
with subparagraph 2 unless either a parent or the child so requests or unless it is necessary to record the child’s surname
on a German registration or identity document.’
Paragraph 46 of the Law on non-contentious proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit)
states:
‘Before making a decision transferring to one parent the right to determine the surname pursuant to Paragraph 1617(2) of the
[BGB], the Familiengericht shall hear both parents and seek to bring them to an agreed choice. The Familiengericht’s decision
need not state the grounds on which it is based; no appeal shall lie from it.’

The procedure in the main proceedings and the question referred for a preliminary ruling
The child Leonhard Matthias was born on 27 June 1988 to a married couple, Dorothee Paul and Stefan Grunkin, both of German
nationality. The child, who also had German nationality, was living in Denmark at the date of the order for reference.
In accordance with a certificate (‘navnebevis’) issued by the competent Danish authority attesting to that name, the child
was given, in accordance with Danish law, the surname Grunkin-Paul, which was entered on his birth certificate drawn up in
Denmark.
The Registrar’s Office in Germany refused to recognise the surname of the child of Ms Paul and Mr Grunkin as it had been determined
in Denmark on the ground that, under Paragraph 10 of the EGBGB, the name of a person falls to be decided under the law of
the country of his nationality, and that German law does not allow a child to bear a double-barrelled name composed of his
father and mother’s surnames. The actions brought by Ms Paul and Mr Grunkin against that refusal were dismissed at final instance
by the judgment of the Kammergericht (Higher Regional Court) Berlin. The Bundesverfassungsgericht (Federal Constitutional
Court) refused to examine the constitutional complaint brought in the child’s name.
Ms Paul and Mr Grunkin, who had divorced in the meantime, did not use a common married name and refused to determine the name
of their child in accordance with Paragraph 1617(1) of the BGB.
The Standesamt brought the matter before the Amtsgericht (Local Court) Niebüll, as Familiengericht, in order to transfer the
right to determine the child’s surname to one of his parents in accordance with Paragraph 1617(2) and (3) of the BGB. Taking
the view that, if Community law requires that the name which is valid under Danish law be recognised under the German legal
system, the proceedings pending before it would have no purpose, the Amtsgericht Niebüll decided to stay the proceedings before
it and to refer the following question to the Court for a preliminary ruling:
‘In light of the prohibition on discrimination set out in Article 12 EC and having regard to the right to the freedom of movement
for every citizen of the Union laid down by Article 18 EC, is the provision on the conflict of laws contained in Article 10
of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?’

The jurisdiction of the Court
Under the first paragraph of Article 234 EC, the Court of Justice has jurisdiction to give preliminary rulings concerning,
inter alia, the interpretation of the EC Treaty and of the acts of the institutions of the European Community. The second
paragraph of that article adds that ‘where such a question is raised before any court or tribunal of a Member State, that
court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request
the Court of Justice to give a ruling thereon’. The third paragraph of Article 234 EC states that ‘where any such question
is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy
under national law, that court or tribunal shall bring the matter before the Court of Justice’.
In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, which is
a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established
by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is
inter partes
, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96
Dorsch Consult
[1997] ECR I-4961, paragraph 23, and the case-law cited; Joined Cases C-110/98 to C-147/98
Gabalfrisa and Others
[2000] ECR I-1577, paragraph 33; Case C-178/99
Salzmann
[2001] ECR I-4421, paragraph 13; and Case C-182/00
Lutz
and Others
[2002] ECR I-547, paragraph 12).
Furthermore, whilst Article 234 EC does not make a reference to the Court subject to there having been an
inter partes
hearing in the proceedings in the course of which the national court refers a question for a preliminary ruling (see Case
C-18/93
Corsica Ferries
[1994] ECR I-1783, paragraph 12), it follows none the less from that article that a national court may refer a question to
the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead
to a decision of a judicial nature (see orders in Case 138/80
Borker
[1980] ECR 1975, paragraph 4, and in Case 318/85
Greis Unterweger
[1986] ECR 955, paragraph 4; and judgments in Case C-111/94
Job Centre
[1995] ECR I-3361, paragraph 9;
Salzmann
, paragraph 14;
Lutz
, paragraph 13; and Case C-165/03
Längst
[2005] ECR I-5637, paragraph 25).
Therefore, when it exercises administrative authority, without at the same time being called on to decide a dispute, the referring
body, even if it satisfies the other conditions mentioned in paragraph 12 of the present judgment, cannot be regarded as exercising
a judicial function (see
Job Centre
, paragraph 11;
Salzmann
, paragraph 15; and
Lutz
, paragraph 14).
In that connection it must be observed that where parents who do not use a married name but who jointly exercise custody of
a child have not chosen, by declaration before a Registry Office official, either the father’s or the mother’s name as the
birth name of that child, German law provides that the Familiengericht is competent to transfer the right to determine the
child’s surname to one of the parents.
It follows that the Familiengericht is required to adopt a decision without a Registry Office official having taken, or been
able to take, an earlier decision on the matter. Thus, it is apparent from the file that, in the case in the main proceedings,
the Standesamt merely brought the matter before the Amtsgericht Niebüll.
In those circumstances it must be held that the Amtsgericht Niebüll exercises administrative authority, without at the same
time being called on to decide a dispute.
It is true that there was a dispute between the parents and the administration as to the possibility of registering the double-barrelled
name ‘Grunkin-Paul’ in Germany. However, that dispute was settled at last instance by the Kammergericht Berlin and is not
the subject of the proceedings before the Amtsgericht Niebüll.
Furthermore, there is no dispute, in the case in the main proceedings, between the parents, since they are in agreement about
the name they wish to give to their child, namely the double-barrelled name composed of their respective surnames.
It is clear from all of the foregoing that, in those proceedings, the Amtsgericht Niebüll cannot be regarded as exercising
a judicial function. Therefore, the Court has no jurisdiction to answer the question referred by the Amtsgericht Niebüll in
its decision of 2 June 2003.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the Amtsgericht
Niebüll, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than
the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
The Court of Justice of the European Communities has no jurisdiction to answer the question referred by the Amtsgericht Niebüll
in its decision of 2 June 2003.
[Signatures]
*
Language of the case: German.