Opinion of the Advocate General — ECLI:EU:C:2014:296
Date: 2014-04-30
Language of the case: German
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 2 October 2014 1. Border controls, asylum and immigration — Crossing of external borders of the Member States — Common rules on standards and procedures for border controls — Passports and travel documents issued by the Member States — Regulation No 2252/2004 on standards for security features and biometrics in those passports and documents — Obligation to include in the machine readable personal data page of passports all the compulsory specifications provided for by Part 1 of Document 9303 of the International Civil Aviation Organisation (ICAO) (Council Regulation 2252/2004, as amended by European Parliament and Council Regulation No 444/2009, Annex) 2. Border controls, asylum and immigration — Crossing of external borders of the Member States — Common rules on standards and procedures for border controls — Passports and travel documents issued by the Member States — Regulation No 2252/2004 on standards for security features and biometrics in those passports and documents — National legislation providing that a person’s name comprises his forenames and surname — Possibility for the Member State to enter the birth name as a primary identifier in Field 06 of the machine readable personal data page of the passport, as a secondary identifier in Field 07 of that page or in a single field composed of Fields 06 and 07 — Lawfulness (Council Regulation No 2252/2004, as amended by European Parliament and Council Regulation No 444/2009, Recitals 2 and 3 and Annex) 3. Border controls, asylum and immigration — Crossing of external borders of the Member States — Common rules on standards and procedures for border controls — Passports and travel documents issued by the Member States — Regulation No 2252/2004 on standards for security features and biometrics in those passports and documents — National legislation providing that a person’s name comprises his forenames and surname — Possibility for the Member State to enter the birth name as an optional item of personal date in Field 13 of the machine readable personal data page of the passport — Not permissible (Council Regulation No 2252/2004, as amended by European Parliament and Council Regulation No 444/2009, Annex) 4. Border controls, asylum and immigration — Crossing of external borders of the Member States — Common rules on standards and procedures for border controls — Passports and travel documents issued by the Member States – Regulation No 2252/2004 on standards for security features and biometrics in those passports and documents — Article 7 of the Charter of Fundamental Rights — Right to respect for private and family life — State having chosen to include the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport — Obligation for the Member State to state clearly in the caption of those fields that the birth name is entered there (Charter of Fundamental Rights of the European Union, Art. 7; Council Regulation No 2252/2004, as amended by European Parliament and Council Regulation No 444/2009, Annex) 1. The Annex to Regulation No 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation No 444/2009 must be interpreted as requiring the machine readable personal data page of passports issued by the Member States to satisfy all the compulsory specifications provided for by Part 1 of Document 9303 of the International Civil Aviation Organisation (ICAO). (see para. 26, operative part 1) 2. The Annex to Regulation No 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation No 444/2009, read in conjunction with International Civil Aviation Organisation (ICAO) Document 9303, Part 1, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as not precluding that State from being entitled nevertheless to enter the birth name either as a primary identifier in Field 06 of the machine readable personal data page of the passport or as a secondary identifier in Field 07 of that page or in a single field composed of Fields 06 and 07. In that regard, it is apparent from ICAO Document 9303, Part 1, Section IV, point 5.2, that the specifications relating to the content of the machine readable personal data page of the passport were designed so as to accommodate the various requirements of the laws and practices of the issuing States. It follows that, subject to the requirements connected with the standardised formatting of that page, the issuing States have some leeway in the choice of the elements to be entered in the various data fields of that page. Given that leeway granted to the States and since ICAO Document 9303, Part 1, Section IV, point 8.6, refers to ‘the full name ..., as identified by the issuing State’, without explaining that term further, the term in question must be interpreted as leaving those States some discretion in the choice of elements constituting the ‘full name’. Such a conclusion is borne out by the objective pursued by Regulation No 2252/2004 of establishing a reliable link between the holder and the passport. (see paras 30-32, 36, operative part 2) 3. The Annex to Regulation No 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation No 444/2009, read in conjunction with the provisions of International Civil Aviation Organisation Document 9303, Part 1, Section IV, point 8.6, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as precluding that State from being entitled to enter the birth name as an optional item of personal date in Field 13 of the machine readable personal data page of the passport. Field 13 may contain only data elements in respect of which it has not already been provided that they must, on account of their nature, be entered in another field and therefore that they are mandatory in character. Moreover, were the issuing States entitled to enter elements relating to the name in fields other than those expressly provided for that purpose, this would lead to a risk that certain public authorities would be misled in their identification of the passport holder, which would run counter to that objective of ensuring, by means of sufficiently standardised formatting of the relevant data, a satisfactory level of confidence in the reliability of travel documents, so that inspection procedures are thereby facilitated. (see paras 38, 41, 42, operative part 3) 4. The Annex to Regulation No 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation No 444/2009, read in conjunction with International Civil Aviation Organisation Document 9303, Part 1, must be interpreted, in the light of Article 7 of the Charter of Fundamental Rights of the European Union, as meaning that, where a Member State whose law provides that a person’s name comprises his forenames and surname chooses nevertheless to include the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport, that State is required to state clearly in the caption of those fields that the birth name is entered there. In that regard, although, with a view to attaining the objectives of Regulation No 2252/2004, a State has the option of adding to the name of the passport holder, as defined in its national law on civil status, other elements, in particular the birth name, the fact remains that the way in which that option is exercised must observe that individual’s right to protection of his private life. Thus, in order for that right to be observed, the name of the holder must be clearly distinguished from those additional elements, such clarification moreover in no way preventing the objectives of Regulation No 2252/2004 from being achieved. It is not disputed that, where the name of a person appears incorrectly or ambiguously in documents issued by a State in order to prove his identity, this is liable to cause serious inconvenience for that person both in his professional and in his private life in so far as it may give rise to doubts as to his real identity, the authenticity of the passport or the veracity of the information contained in it. (see paras 49-51, operative part 4)