Opinion of the Advocate General — ECLI:EU:C:2005:419
Date: 2005-06-30
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Germany

Summary of the Judgment Preliminary rulings – Reference to the Court – National court for the purposes of Article 234 EC – Definition (Art. 234 EC) It is clear from Article 234 EC 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. Therefore, when it exercises administrative authority, without at the same time being called on to decide a dispute, the Amtsgericht (Germany), as Familiengericht, cannot be regarded as exercising a judicial function. That is the case where it is called upon to transfer the right to determine the child’s surname to one of the parents 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, since the Familiengericht is required to adopt a decision without the Registry Office official which brought the action having taken, or been able to take, an earlier decision on the matter, since the dispute between the parents and the administration as to the possibility of registering the double-barrelled name consisting of the parents’ surnames was settled at last instance by another Court and is not the subject of the proceedings before the Amtsgericht and since there is no dispute between the parents, because they are in agreement about the name they wish to give to their child, namely the double-barrelled name composed of their respective surnames. (see paras 13-19)