Opinion of the Advocate General — ECLI:EU:C:2010:784
Date: 2010-12-16
Language of the case: Lithuanian
Subject matter: Anti-discrimination;Fundamental rights;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the Judgment 1. Union law – Principles – Equal treatment – Equal treatment of persons irrespective of racial or ethnic origin – Directive 2000/43 – Ambit (Charter of Fundamental Rights of the European Union, Art. 21; Council Directive 2000/43, Art. 3(1)) 2. Citizenship of the European Union – Right of freedom of movement and freedom to reside within the territory of the Member States – Rules governing the spelling of the official language of a Member State applicable to certificates of civil status (Art. 21 TFEU) 3. Citizenship of the European Union – Right of freedom of movement and freedom to reside within the territory of the Member States – Rules governing the spelling of the official language of a Member State applicable to certificates of civil status (Art. 21 TFEU) 4. Citizenship of the European Union – Right of freedom of movement and freedom to reside within the territory of the Member States – Rules governing the spelling of the official language of a Member State applicable to certificates of civil status (Art. 21 TFEU) 1. National rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language relate to a situation which does not come within the scope of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Although, in the light of the objective of that directive and the nature of the rights which it seeks to safeguard, and in view of the fact that it is merely an expression, within the area under consideration, of the principle of equality, which is one of the general principles of European Union law, as recognised in Article 21 of the Charter of Fundamental Rights of the European Union, its ambit may not be defined restrictively, it cannot be held that such national rules come within the concept of a ‘service’ within the meaning of Article 3(1) of that directive. (see paras 43, 45, 48, operative part 1) 2. Article 21 TFEU must be interpreted as not precluding the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend, on the birth certificate and marriage certificate of one of its nationals, the surname and forename of that person in accordance with the spelling rules of another Member State. The fact that a person’s surname and forename cannot be changed and entered in documents relating to civil status issued by that person’s Member State of origin except using the characters of the language of that latter Member State cannot constitute treatment that is less favourable than that which he enjoyed before availing himself of the opportunities offered by the Treaty in relation to free movement of persons and hence is not liable to deter him from exercising the rights of movement recognised in Article 21 TFEU. (see paras 69-70, 94, operative part 2) 3. Article 21 TFEU must be interpreted as not precluding the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surname and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend the joint surname of a married couple who are citizens of the Union, as it appears on the certificates of civil status issued by the Member State of origin of one of those citizens, in a form which complies with the spelling rules of that latter State, on condition that that refusal does not give rise, for those Union citizens, to serious inconvenience at administrative, professional and private levels, this being a matter which it is for the national court to decide. If that proves to be the case, it is also for that court to determine whether the refusal to make the amendment is necessary for the protection of the interests which the national rules are designed to secure and is proportionate to the legitimate aim pursued. The objective pursued by such rules, designed to protect the official national language by imposing the rules which govern the spelling of that language, constitutes, in principle, a legitimate objective capable of justifying restrictions on the rights of freedom of movement and residence provided for in Article 21 TFEU and may be taken into account when legitimate interests are weighed against the rights conferred by European Union law. (see paras 87, 94, operative part 2) 4. Article 21 TFEU must be interpreted as not precluding the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surname and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend the marriage certificate of a citizen of the Union who is a national of another Member State in such a way that the forenames of that citizen are entered on that certificate with diacritical marks as they were entered on the certificates of civil status issued by his Member State of origin and in a form which complies with the rules governing the spelling of the official national language of that latter State. (see para. 94, operative part 2)