Opinion of the Advocate General — ECLI:EU:C:2003:311
Date: 2003-05-22
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
Origin: Belgium

Summary of the Judgment 
1. Citizenship of the European Union — Treaty provisions — Scope ratione per­
sonae — National of one Member State lawfully residing on the territory of another 
I-11613 
SUMMARY — CASE C-148/02 
Member State — Whether included — Effect — Benefit of rights attaching to the 
status of citizen of the Union — Persons concerned also nationals of the State of 
residence — Not relevant — Discrimination on grounds of nationality in regard to 
the rules governing the surname — Not permissible 
(Arts 12 EC, 17 EC and 18 EC) 
2. Community law — Principles — Equal treatment — Discrimination on grounds of 
nationality — Minor children resident in a Member State and having dual nationality 
of that State and of another Member State — Application for a change of surname to 
enable those minor children to bear the surname to which they are entitled in the 
second Member State — Refusal of the administrative authority to grant that 
application — Not permissible 
(Arts 12 EC and 17 EC) 
1. Nationals of one Member State who 
are lawfully resident in the territory of 
another Member State may rely on the 
right set out in Article 12 EC not to 
suffer discrimination on grounds of 
nationality in regard to the rules gov­
erning their surname. 
Citizenship of the Union is destined to 
be the fundamental status of nationals 
of the Member States, enabling those 
nationals who find themselves in the 
same situation to enjoy, within the 
scope ratione materiae of the 
EC Treaty, the same treatment in law 
irrespective of their nationality, subject 
to such exceptions as are expressly 
provided for. The situations falling 
within the scope ratione materiae of 
Community law include those invol­
ving the exercise of the fundamental 
freedoms guaranteed by the Treaty, in 
particular those involving the freedom 
to move and reside within the territory 
of the Member States, as conferred by 
Article 18 EC. 
Although, as Community law stands at 
present, the rules governing a person's 
surname are matters coming within the 
competence of the Member States, the 
latter must none the less, when exercis­
ing that competence, comply with 
Community law, in particular with 
the Treaty provisions on the freedom 
of every citizen of the Union to move 
and reside in the territory of the 
Member States. Citizenship of the 
Union, established by Article 17 EC, 
is not, however, intended to extend the 
scope ratione materiae of the Treaty 
also to internal situations which have 
no link with Community law. Such a 
link with Community law does, how­
ever, exist in regard to persons in a 
situation such as that of a national of 
one Member State who is lawfully 
resident in the territory of another 
Member State. That conclusion cannot 
be invalidated by the fact that the 
persons concerned also have the 
nationality of the Member State in 
which they have been resident since 
their birth and which, according to the 
authorities of that State, is by virtue of 
that fact the only nationality recog­
nised by the latter. It is not permissible 
for a Member State to restrict the 
effects of the grant of the nationality 
I - 11614 
GARCIA AVELLO 
of another Member State by imposing 
an additional condition for recognition 
of that nationality with a view to the 
exercise of the fundamental freedoms 
provided for in the Treaty. 
(see paras 22-29) 
2. Articles 12 EC and 17 EC must be 
construed as precluding the adminis­
trative authority of a Member State 
from refusing to grant an application 
for a change of surname made on 
behalf of minor children resident in 
that State and having dual nationality 
of that State and of another Member 
State, in the case where the purpose of 
that application is to enable those 
children to bear the surname to which 
they are entitled according to the law 
and tradition of the second Member 
State. 
First, with regard to the principle of the 
immutability of surnames as a means 
designed to prevent risks of confusion 
as to identity or parentage of persons, 
although that principle undoubtedly 
helps to facilitate recognition of the 
identity of persons and their parentage, 
it is still not indispensable to the point 
that it could not adapt itself to a 
practice of allowing children who are 
nationals of one Member State and 
who also hold the nationality of 
another Member State to take a sur­
name which is composed of elements 
other than those provided for by the 
law of the first Member State and 
which has, moreover, been entered in 
an official register of the second 
Member State. Furthermore, by reason 
in particular of the scale of migration 
within the Union, different national 
systems for the attribution of surnames 
coexist in the same Member State, with 
the result that parentage cannot necess­
arily be assessed within the social life of 
a Member State solely on the basis of 
the criterion of the system applicable to 
nationals of that latter State. In addi­
tion, far from creating confusion as to 
the parentage of the children, a system 
allowing elements of the surnames of 
the two parents to be handed down 
may, on the contrary, contribute to 
reinforcing recognition of that connec­
tion with the two parents. 
Second, with regard to the objective of 
integration pursued by the practice in 
issue, the practice in issue is, in view of 
the coexistence in the Member States of 
different systems for the attribution of 
surnames applicable to those there 
resident, neither necessary nor even 
appropriate for promoting the inte­
gration of the nationals of other 
Member States within their State of 
residence. 
(see paras 42-43, 45, operative part) 
I - 11615