OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 24 November 2016 ( 1 )

Case C‑541/15

Mircea Florian Freitag(Request for a preliminary ruling from the

Amtsgericht Wuppertal (Local Court, Wuppertal, Germany))

‛Reference for a preliminary ruling — Citizenship of the European Union — Rights to move and reside freely in the territory of the Member States — Articles 18 and 21 TFEU — Person holding the nationality of two Member States (Romania and the Federal Republic of Germany) who is habitually resident in Germany — Change of name acquired in Romania, at the request of the person concerned and in the absence of a change in family-law status — Refusal to recognise the change of name by the German register office — Conformity with EU law’

Introduction

1. The Court is being asked once again to rule on a question concerning European Union citizenship in connection with surnames. The legal framework for the present reference for a preliminary ruling is Articles 18 and 21 TFEU. More precisely, the question asked by the Amtsgericht Wuppertal (Local Court, Wuppertal, Germany) will lead the Court to consider whether a German national who also holds Romanian nationality may be refused recognition of a change of name lawfully made by the competent Romanian authorities.

2. The legislation at issue in the main proceedings, namely Article 48 of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Law introducing the Civil Code) of 21 September 1994, ( 2 ) in the version applicable to the facts in the main proceedings (‘the EGBGB’), which concerns the choice of a name acquired in another Member State, was recently adopted by the German legislature. The article was introduced following delivery of the judgment in Grunkin and Paul. ( 3 ) In that judgment the Court ruled that Article 21 TFEU ‘precludes the authorities of a Member State, in applying national law, from refusing to recognise a child’s surname, as determined and registered in a second Member State in which the child — who, like his parents, has only the nationality of the first Member State — was born and has been resident since birth’. ( 4 )

3. However, Article 48 of the EGBGB does not appear to satisfy fully the requirements laid down by the Court. Its scope is limited by the fact that, first, the option to choose and register a surname in Germany exists only where the name is subject to German law and, second, the name must be acquired during habitual residence in another Member State. Many situations are not therefore covered by this new provision.

4. However, the German Government has claimed that there are public-law provisions which permit the applicant in the main proceedings to submit an application for a change of name to another authority. The question raised by this request for a preliminary ruling is thus whether the German legislation as a whole, that is, taking into account the two procedures in German law under which a German national is able to change his name to a name lawfully acquired in another Member State, is consistent with Articles 18 and 21 TFEU.

Legal framework

5. In Germany, Article 5 of the EGBGB, entitled ‘Personal status’, provides, in the first and second sentences of paragraph 1: ‘Where reference is made to the law of the State of which a person is a national and the person is a national of several States, the law to be applied is the law of the State with which the person is most closely linked, in particular by his habitual residence or by the course of his life. If the person is also German, that legal status takes precedence.’

6. Article 10 of the EGBGB, entitled ‘Name’, provides, in paragraph 1: ‘A person’s name is subject to the law of the State of which the person is a national.’

7. Article 48 of the EGBGB, entitled ‘Choice of a name acquired in another Member State of the European Union’, stipulates: ‘If a person’s name is subject to German law, he may, by declaration to the register office, choose the name acquired during habitual residence in another Member State of the European Union and entered in a register of civil status there, where this is not manifestly incompatible with essential principles of German law. The choice of name shall take effect retroactively from the date of entry in the register of civil status of the other Member State, unless the person expressly declares that the choice of name is to have effect only for the future. The declaration must be publicly attested or certified. …’ ( 5 )

8. As the German Government asserted in its written observations, in Germany, in so far as the right to choose a name is not subject to civil law, the change of name is subject to public law, and more precisely to the exceptional procedure for a change of family name under the Gesetz über die Änderung von Familiennamen und Vornamen (NamÄndG) (Law on changes of family names and first names) of 5 January 1938 (RGBl. 1938 I, p. 9), as last amended by Paragraph 54 of the Law of 17 December 2008 (BGBl. 2008 I, p. 2586) (‘the Law on changes of name’).

9. Under Paragraph 1 of the Law on changes of name, the family name of a German national who has his residence or habitual abode in Germany may be changed on application. The application for a change of family name must be made, under Paragraph 5(1) of that law, to the lower administrative authority in whose district the applicant has his residence or abode (‘the competent administrative authority’).

10. Under Paragraph 3(1) of the Law on changes of name, a family name may be changed only if the change is justified by a compelling reason (‘ein wichtiger Grund’). The facts of the case that are relevant to the decision must be assessed ex officio under Paragraph 3(2) of that law. In this regard, it would be necessary to hear, in addition to the persons directly concerned, the competent local police authorities and persons whose rights are affected by the change of name applied for.

11. In principle, a reason capable of justifying a change of name can be described as compelling where the applicant’s personal interest prevails over the principles governing the use of the name, including the public interest in the retention of the current name, but also over third-party interests which merit protection.

12. The Allgemeine Verwaltungsvorschrift zum Gesetz über die Änderung von Familiennamen und Vornamen (NamÄndVwV) (General administrative provisions relating to the Law on changes of family names and first names) of 11 August 1980, as last amended by the Administrative provisions of 11 February 2014 (BAnz. AT, 18 February 2014, B2) (‘the Administrative provisions’), was adopted in pursuance of the Law on changes of name.

13. Under point 27(1) of the Administrative provisions, ‘[t]he name of persons is governed in detail and — in principle — exhaustively by the relevant provisions of civil law. A change of name which is subject to public law serves to eliminate detrimental effects in a specific case. It has exceptional character. …’

14. Point 33 et seq. of the Administrative provisions set out, as criteria for assessing the compelling reason for a change of family name, the most common types of cases in practice.

15. Point 49 of the Administrative provisions stipulates, with regard to the case of ‘elimination of inconsistent use of the name’: ‘Where a German national who also holds the nationality of another State uses, under the law of that other State, a family name other than that which he is required to use by law within the territorial scope of the Law, such inconsistent use of the name may be eliminated by changing the family name to be used within the territorial scope of the Law to the family name to be used under the law of the other State. If, on the other hand, it is the other family name which is to be relinquished, the person concerned should be referred to the authorities of the other State of which he is also a national.’

16. If the competent administrative authority under the law of the Land finds the application to be unfounded, it must refuse the change of name. Administrative remedies are available to challenge such a decision refusing an application.

17. If the competent administrative authority under the law of the Land grants the application for a change of family name, it must ensure inter alia that the change of name gives rise to an update or is recorded in the register of births.

The facts of the case in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

18. Mircea Florian Freitag was born on 25 April 1986 in Romania under the family name Pavel. He is the child of Angela Freitag and Vica Pavel, who are Romanian nationals.

19. After the divorce of the parents of the applicant in the main proceedings, his mother, Angela Freitag, married a German national, Mr Freitag. On 21 May 1997, Mr Freitag adopted the applicant in the main proceedings, who thereby also acquired German nationality and has since then borne the family name Freitag.

20. By administrative act of the District Council of Braşov (Romania) of 9 July 2013, the applicant in the main proceedings changed his family name, at his own request, back to Pavel. During the process of the name change in Romania, the applicant in the main proceedings was habitually resident in Germany.

21. The applicant in the main proceedings then presented himself at the register office in Wuppertal, producing his new Romanian passport issued in the name of Pavel, and requested that the name change also be recognised under German law and that the local register of births be updated accordingly.

22. Since they entertained doubts as to whether it is possible to make a subsequent entry in the register of births, the register office in Wuppertal and the register office lower supervisory authority referred the matter to the Amtsgericht Wuppertal (Local Court, Wuppertal) for assessment.

23. According to the referring court, it is not possible to apply the relevant provision of German law, Article 48 of the EGBGB, in adjudicating on the dispute as that provision makes the right to choose a name acquired in another EU Member State subject to the condition that the name in question was acquired during habitual residence in that other Member State, which is not met in this case. Mr Freitag was habitually resident in Germany during the process for the change of name in Romania.

24. The referring court states that an application by analogy of Article 48 of the EGBGB is also not possible. According to materials relating to the legislative process, the legislature intended, in particular, to give effect to the requirements resulting from the judgment in Grunkin and Paul ( 6 ) and was aware that that rule cannot cover all conceivable inconsistent (‘limping’) name situations.

25. The referring court therefore asks whether Articles 18 and 21 TFEU contain an obligation to recognise a change of name which has taken place in another Member State where, although the person concerned was not habitually resident in that other Member State, he has another connection with that Member State by virtue of his dual nationality.

26. In these circumstances, by decision of 24 September 2015, received at the Court Registry on 16 October 2015, the Amtsgericht Wuppertal (Local Court, Wuppertal) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Are Articles 18 and 21 TFEU to be interpreted as meaning that the authorities of a Member State are obliged to recognise the change of name of a national of that State if that person is at the same time a national of another Member State and has, in that other Member State, by means of a change of name not associated with a change in family-law status, (re-)acquired his original family name received at the time of birth, even though the acquisition of that name did not take place during the habitual residence of that national in that other Member State and was carried out at his own request?’

27. Written observations were submitted by the Federal Republic of Germany, the Portuguese Republic and the European Commission.

28. The Federal Republic of Germany, Romania and the Commission presented oral argument at the hearing on 15 September 2016.

Analysis

29. By its question the referring court asks, in essence, whether Articles 18 and 21 TFEU preclude the competent authorities of a Member State from refusing to recognise a change of name made in another Member State where, although the person concerned was not habitually resident in that other Member State when the process for the change of name was ongoing, he was nevertheless linked to that State by virtue of his dual nationality.

30. It should be stated at the outset that, in the procedure providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. ( 7 )

31. In the present case, if the Court concurred with my conclusion that Mr Freitag’s situation falls within the scope of provisions of EU law, since German law provides for two different procedures for name changes, depending on the situation of the person concerned, the question asked by the referring court would therefore have to be reformulated.

32. Accordingly, I believe that the question should be understood as seeking, in essence, to ascertain whether Articles 18 and 21 TFEU preclude the authorities of a Member State from refusing to recognise a change of name on the basis of a provision of national law laying down the right to choose a name acquired in another Member State on condition that the name was acquired there during habitual residence in that other Member State, where other provisions of national law permit the applicant to submit an application for a change of name to another authority.

33. In answering this question, I will first set out the context of the case in the main proceedings, making a few comments regarding the two procedures in German law under which a German national is able to change his name to a name lawfully acquired in another Member State. I will then address the question whether Mr Freitag’s situation falls within the scope ratione materiae of EU law. Lastly, after recalling the relevant case-law, I will suggest to the Court helpful guidance to give to the referring court so that it can determine whether EU law precludes the German legislation at issue in the main proceedings, which it will be for the referring court to assess.

The procedures in German law under which a German national is able to change his name to a name lawfully acquired in another Member State

34. It should be noted, first of all, that, according to the referring court, the central provision of German law relating to the case in the main proceedings is Article 48 of the EGBGB.

35. In this regard, while the German Government acknowledges that in the dispute in the main proceedings the declaration made by Mr Freitag at the register office pursuant to Article 48 of the EGBGB does not permit him to acquire the desired change of name, it submits that German law nevertheless provides for two separate procedures for making a change of name, the private-law procedure at issue in the main proceedings relating to the choice of a name acquired in another Member State under Article 48 of the EGBGB and the public-law procedure laid down in the Law on changes of name.

The procedure relating to the choice of a name acquired in another Member State under Article 48 of the EGBGB

36. According to the Federal Government’s explanatory memorandum for the draft law on the adaptation of the rules of private international law to Regulation (EU) No 1259/2010 and on the amendment of other rules of private international law (‘the reasons for Article 48 of the EGBGB’), the adoption of that provision stems from the German Government’s wish to comply with the judgment in Grunkin and Paul, ( 8 ) while stressing the concern to safeguard the coherence of the German system based on linking the name to the holder’s nationality. ( 9 )

37. According to German legal literature, for the implementation of the duty arising from the judgment in Grunkin and Paul, ( 10 )‘the discussion … in Germany … focused on three options, ranging from administrative law and practice to substantive civil law ( 11 ) and to conflict-of-laws’. ( 12 ) The German legislature finally adopted Article 48 of the EGBGB, a provision of substantive civil law with a foreign element, namely habitual residence in another EU Member State. ( 13 )

38. According to the written observations of the German Government, it is clear from the explanatory memorandum for Article 48 of the EGBGB that the German legislature’s intention was to offer a legal basis, in the German legislation governing names of persons, for the registration of a name acquired in another EU Member State and entered in that State’s register of civil status. That article thus permits the person concerned to decide, by declaration to the registrar, to use the name acquired in another Member State rather than the name determined under the German legislation governing names of persons. However, that paragraph is applicable only where the change of name was acquired during habitual residence in another Member State.

39. Consequently, its objective was not to resolve exhaustively the problem of changes of name. ( 14 ) In addition to the present case, which is that of a German national who also holds the nationality of another Member State but has never resided in that State, situations which are not subject to German law but to the law of another Member State do not fall within the scope of that provision. ( 15 ) That would be the case, for example, with a French national established in Germany who changed his name during habitual residence in Spain and who was seeking recognition of that change of name in Germany.

The application procedure for a change of name in public law

40. The German Government explains in its observations that, as public-law legislation, the Law on changes of name is applicable to German nationals in so far as the right to choose a name is not subject to civil law, which is the case with Mr Freitag, in view of the fact that, even though Article 48 of the EGBGB is applicable to him, he does not satisfy the condition of habitual residence in another Member State under that provision. Consequently, the German Government asserts that the procedure for a change of name, where an application is to be lodged with the competent administrative authority under the law of Land, might possibly permit Mr Freitag to obtain the right to use the name acquired under Romanian law.

41. According to the German Government, it was not therefore necessary, in the light of this procedure for a change of name, to introduce provisions supplementary to Article 48 of the EGBGB in order to resolve inconsistent use of names for persons holding both German nationality and the nationality of another Member State. Under Paragraph 3(1) of the Law on changes of name, a family name may be changed only if this is justified by a compelling reason. Eliminating inconsistent use of the name does, according to the German Government, constitute a ‘compelling reason’ within the meaning of Paragraph 3 of the Law on changes of name in conjunction with point 49 of the Administrative provisions.

42. It nevertheless seems important to state that it is clear from the wording of the provisions applicable under the Law on changes of name, in particular point 27(1) of the Administrative provisions, that this public-law procedure is strictly exceptional in nature. That provision stipulates, in essence, that the German legislation on family names and first names is in principle governed entirely by the relevant provisions of German private law and that the administrative procedure for changes of name constitutes an ‘exception’. ( 16 ) I will return to this point later. ( 17 )

43. Mr Freitag’s situation must now be examined in the light of EU law.

The scope of EU law

44. As a preliminary point, it should be examined whether Mr Freitag’s situation falls within the scope ratione materiae of EU law and, in particular, of the rules governing the exercise by a citizen of the Union of his right of free movement and his right not to suffer discrimination.

45. In this respect, all those who submitted written observations and presented oral argument agreed that the situation of the applicant in the main proceedings falls within the scope of EU law.

46. I note at the outset that Article 20 TFEU confers on any person holding the nationality of a Member State the status of citizen of the Union. ( 18 ) In the present case, Mr Freitag holds the nationality of two Member States and therefore enjoys the status of citizen of the Union.

47. As the Court has stated several times, that citizenship of the Union is intended to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy, within the scope ratione materiae of the FEU Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. ( 19 )

48. The Court has also held that the situations falling within the scope ratione materiae of EU law include the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those concerning the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU. ( 20 )

49. It is settled case-law in this regard that although, as EU law stands at present, the rules governing the way in which a person’s surname and forename are entered on certificates of civil status are matters coming within the competence of the Member States, the Member States must nonetheless, when exercising that competence, comply with EU law and, 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. ( 21 )

50. In the case in the main proceedings I note that Mr Freitag is a Romanian national and is resident in the Federal Republic of Germany. Consequently, there is little doubt in my view that Mr Freitag’s situation is linked to EU law. Such a link exists, according to settled case-law, ‘in regard to persons … who are nationals of one Member State lawfully resident in the territory of another Member State’. ( 22 )

51. In addition, as the Court has stated in its case-law, the fact that Mr Freitag is also a German national does not preclude this link to EU law. The Court has ruled that ‘it is not permissible for a Member State to restrict the effects of the grant of the nationality 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’. ( 23 )

52. It follows, in my view, that Mr Freitag’s situation falls within the scope of EU law.

53. It must nevertheless be ascertained whether the refusal by the German authorities to grant Mr Freitag’s application for the change of his name to be recognised by German law and entered in the register of births restricts his right to freedom of movement under Article 21 TFEU.

54. This is the question to which I will now turn, after first recalling the Court’s relevant case-law.

The obligation to recognise in a Member State a surname acquired in another Member State

The Court’s existing case-law

55. Consideration must be given to several cases concerning European citizenship in connection with surnames.

56. With regard to Garcia Avello, ( 24 ) I note that the Court was asked to rule on the refusal by the Belgian administrative authorities of an application for a change of surname made by children residing in Belgium who had dual Belgian and Spanish nationality and who wished to change their surname to another ‘in accordance with well-established usage in Spanish law’. ( 25 ) The Court held, following the view of Advocate General Jacobs, ( 26 ) that ‘it is common ground that such a discrepancy in surnames is liable to cause serious inconvenience for those concerned at both professional and private levels resulting from, inter alia, difficulties in benefiting, in one Member State of which they are nationals, from the legal effects of diplomas or documents drawn up in the surname recognised in another Member State of which they are also nationals’. ( 27 )

57. Going on to examine the grounds relied on by the Belgian Government and by the Danish and Dutch Governments to justify the practice of the Belgian administrative authorities, the Court held that the refusal by the Belgian authorities was disproportionate and ruled that ‘Articles [18 and 21 TFEU] must be construed as precluding … the administrative 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’. ( 28 )

58. This approach was subsequently confirmed by the judgment in Grunkin and Paul ( 29 ) in which the Court had to rule on the refusal by the German authorities to recognise the surname of a child as already determined and registered in Denmark, ( 30 ) where the child, a German national, had been born and had been resident since birth. The ground for this refusal was that, under Article 10 of the EGBGB, the surname of a person is governed by the law of the State of his or her nationality and that German law does not allow a child to bear a double-barrelled surname composed of the surnames of both the father and mother. ( 31 )

59. The Court held in that case too that the existence of ‘serious inconvenience’ was linked to the discrepancy in surnames of those concerned and that Article 21 TFEU ‘precludes the authorities of a Member State, in applying national law, from refusing to recognise a child’s surname, as determined and registered in a second Member State in which the child — who, like his parents, has only the nationality of the first Member State — was born and has been resident since birth’. ( 32 )

60. It is interesting to note that the Court then applied the same reasoning in respect of the existence of a restriction on the freedom of movement and residence enjoyed by citizens of the Union in Sayn-Wittgenstein ( 33 ) and Bogendorff von Wolffersdorff, ( 34 ) whilst nevertheless acknowledging that such a restriction could be justified on grounds relating to the public policy of the Member States. ( 35 )

61. In the light of this case-law I will now address the question of the existence of a restriction on free movement under Article 21 TFEU. ( 36 )

The existence of a restriction on freedom of movement: Article 21 TFEU

62. I note, as a preliminary point, that a person’s name is a constituent element of his identity and of his private life, the protection of which is enshrined in Article 7 of the Charter of Fundamental Rights of the European Union and in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. ( 37 )

63. It is settled case-law that national legislation which places certain of the nationals of the Member State concerned at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union. ( 38 ) The Court has also ruled that obliging a person who has exercised his right to move and reside freely in the territory of another Member State to use a surname, in the Member State of which he a national, which is different from that already conferred and registered in the Member State of birth and residence is liable to hamper the exercise of that right. ( 39 )

64. According to the judgment cited in point 56 above, a discrepancy in surnames is ‘liable to cause serious inconvenience for those concerned’. In the present case, using two different names, the names Pavel and Freitag, is likely to cause difficulties for the applicant in the main proceedings, in particular ‘at administrative, professional and private levels’. ( 40 ) There is undoubtedly a real risk for a national of two Member States, such as Mr Freitag, of being obliged to dispel doubts as to his identity and the authenticity of the documents submitted, or the veracity of their content, which, as the Court has ruled, ‘is such as to hinder the exercise of the right which flows from Article 21 TFEU’. ( 41 )

65. Consequently, the refusal by the competent German authorities of Mr Freitag’s application for a change of name with a view to recognition of the name Pavel, as determined and registered in Romania, a Member State of which he is also a national, solely on the basis of Article 48 of the EGBGB, which provides for the right to choose a name acquired in another Member State if it was acquired during habitual residence in that other Member State, could constitute a restriction of the freedoms recognised in Article 21 TFEU.

66. The German Government acknowledges in this regard that this provision of German law is not intended to resolve exhaustively the problem of changes of name. ( 42 ) It nevertheless states that, because German law includes other legal bases for changing a name at the request of the person concerned, namely the relevant provisions of the Law on changes of name, ( 43 ) that legislation does not give rise to an obstacle to the free movement of persons which could stem from inconsistent use of names.

67. I will consider below the relevance of this possibility.

The relevance of the possibility of a change of name under the Law on changes of name

68. The German Government claims that the crucial element for the purposes of the ‘recognition’ obligation in accordance with the Court’s case-law ( 44 ) is the conformity of the decision in the respective national procedures with EU law. Consequently, in a situation like that in the main proceedings, there is no obligation under Article 21 TFEU formally and automatically to recognise in German law the family name used by Mr Freitag by virtue of Romanian law, without going through the procedure provided for by German law, namely the procedure provided for by the Law on changes of name. ( 45 ) In addition, the German Government states that it is for national law to lay down the procedure under which changes of name may be made and to determine the competent authority for that purpose. ( 46 )

69. I concur with the German Government’s view that the two procedures provided for by German law should be examined in the light of Article 21 TFEU. A feature of the case in the main proceedings is that, first, Article 48 of the EGBGB has limited scope and, second, there are other provisions in German legislation permitting a person like the applicant in the main proceedings to submit an application for a change of name to another national authority.

70. In these circumstances, as the Commission rightly asserts, it is immaterial in principle, from the point of view of EU law, under which provision or internal administrative procedure the applicant is able to assert his rights concerning his name. However, like the Commission, I take the view that for the German legislation as a whole to be consistent with EU law, the procedure for changes of name under the Law on changes of name must not render impossible or excessively difficult the enforcement of the rights conferred by Article 21 TFEU.

71. Thus, in the absence of EU legislation in respect of modification of surnames, it is for the domestic legal system of each Member State to determine the detailed rules laid down by national law and intended to safeguard the rights which individuals derive from EU law, provided, first, that those rules are not less favourable than those governing rights which originate in domestic law (principle of equivalence) and, second, that they do not render impossible or excessively difficult in practice the exercise of rights conferred by the EU legal order (principle of effectiveness). ( 47 )

72. The following question thus arises: should the possibility of making an application for a change of name under Paragraph 1 of the Law on changes of name be considered compatible with the principle of effectiveness?

73. I have doubts.

74. As I stated in point 42 of this Opinion, it is clear from the wording of point 27(1) of the Administrative provisions that the procedure for changes of name, which comes under public administrative law, is exceptional in nature. Paragraph 3(1) of the Law on changes of name provides that a change is possible only if it is justified by a compelling reason. Consequently, even though the German Government states that eliminating the inconsistent use of names constitutes a compelling reason within the meaning of that provision, it follows from point 31 of the Administrative provisions that that compelling reason, if accepted, does not give entitlement to a change of name, as the competent authority still has the discretionary power to refuse it.

75. However, at the hearing the German Government asserted that the fact that, under those provisions, the competent German authorities enjoy a discretionary power to refuse the change of name applied for cannot call into question the exercise of the applicant’s rights under Articles 18 and 21 TFEU. Under German administrative law, a public authority must always comply with its duty of diligence in exercising its discretion and may not exceed the legal limits assigned to it, including by EU law. Any national authority must, in the diligent exercise of its discretion, always take EU law into consideration. Consequently, if an authority refuses a change of name in contravention of the requirements of Articles 18 and 21 TFEU, it may be the subject of a review with unlimited jurisdiction in Germany. The interpretation of the concept of ‘compelling reason’ under the Law on changes of name must therefore, according to the German Government, comply with Articles 18 and 21 TFEU.

76. Against this background, if, as the German Government claims, the discretionary power enjoyed by the competent German authorities is reduced to nothingness by reason of Articles 18 and 21 TFEU and the administrative procedure provided for by the Law on changes of name does not therefore render impossible or excessively difficult the enforcement of the rights conferred by those articles, the principle of effectiveness would be satisfied, which must be determined by the referring court.

77. I therefore propose that the question asked by the referring court be answered to the effect that Article 21 TFEU does not preclude the authorities of a Member State from refusing to recognise a change of name on the basis of a provision of national law laying down the right to choose a name acquired in another Member State on the condition that the name was acquired there during habitual residence in that other Member State, in so far as, first, other provisions of national law permit the applicant to submit an application for a change of name to another authority and, second, those provisions do not render impossible or excessively difficult the enforcement of the rights conferred by Article 21 TFEU.

Conclusion

78. In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Amtsgericht Wuppertal (Local Court, Wuppertal, Germany) as follows: Article 21 TFEU does not preclude the authorities of a Member State from refusing to recognise a change of name on the basis of a provision of national law laying down the right to choose a name acquired in another Member State on the condition that the name was acquired there during habitual residence in that other Member State, in so far as, first, other provisions of national law permit the applicant to submit an application for a change of name to another authority and, second, those provisions do not render impossible or excessively difficult the enforcement of the rights conferred by Article 21 TFEU.

( 1 ) Original language: French.

( 2 ) BGBl. 1994 I, p. 2494, and corrigendum in BGBl. 1997 I, p. 1061.

( 3 ) Judgment of 14 October 2008 (C‑353/06, EU:C:2008:559).

( 4 ) Judgment of 14 October 2008, Grunkin and Paul (C‑353/06, EU:C:2008:559, paragraph 39).

( 5 ) Article 48 of the EGBGB was created by the Gesetz zur Anpassung der Vorschriften des Internationalen Privatrechts an die Verordnung (EU) Nr. 1259/2010 und zur Änderung anderer Vorschriften des Internationalen Privatrechts (Law on the adaptation of the rules of private international law to Regulation (EU) No 1259/2010 and on the amendment of other rules of private international law) of 23 January 2013 (BGBl. 2013 I, p. 101), which entered into force on 29 January 2013.

( 6 ) Judgment of 14 October 2008 (C‑353/06, EU:C:2008:559).

( 7 ) See, inter alia, judgment of 19 September 2013, Betriu Montull (C‑5/12, EU:C:2013:571, paragraph 40).

( 8 ) Judgment of 14 October 2008 (C‑353/06, EU:C:2008:559).

( 9 ) The German Government states in its written observations that Article 48 of the EGBGB is applicable under Article 10(1) of the EGBGB in conjunction with Article 5(1) of the EGBGB because, first, the person concerned is also a German national and, second, he is most closely linked with the Federal Republic of Germany by his habitual residence in that State (see point 5 of this Opinion). In addition, it is apparent from the documents before the Court that Article 10(2) and (3) of the EGBGB permits German law to be chosen for determination of the name, in particular where the person concerned is habitually resident in the Federal Republic of Germany.

( 10 ) Judgment of 14 October 2008 (C‑353/06, EU:C:2008:559).

( 11 ) The first option, ‘the least “invasive” into domestic law, was to allow a name change under the administrative procedure provided by the [Law on changes of name]’, whilst the second option ‘was the introduction of a rule of substantive law which would have achieved the result required’. See Kohler, C., ‘Towards the Recognition of Civil Status in the European Union’, Yearbook of Private International Law, Vol. 15, 2013/2014, Sellier European Law Publishers, pp. 13 to 30, in particular p. 21.

( 12 ) The third option ‘was to change the conflict rule relating to surnames, namely [Article 10] EGBGB, in order to allow the person(s) with parental responsibility to choose, as the law applicable to the determination of the child’s surname, the law of the State of the habitual residence of one of the parents. In order to do so, it would have sufficed to “bilateralise” the provisions of [Article 10(3)(2)], which in its current wording allows for the choice of German law if one of the parents has his or her habitual residence in Germany’ (see Kohler, C., loc. cit., p. 22). However, as is clear from the explanatory memorandum for Article 48 of the EGBGB, the German legislature did not make provision to extend the existing choice-of-law options for names, the option of ‘bilateralising’ the choice of German law where the person concerned is habitually resident in Germany having been formally rejected.

( 13 ) This provision ‘was not inserted in the “Private International Law” chapter of the EGBGB, but in the following chapter, entitled “Adaptation”, where it is added to Article 47, which relates to the change of surname acquired under a foreign law but now governed by German law’. The purpose of Article 47 of the EGBGB is ‘to allow, on request, for the adaptation of the content or grammatical form of a surname, formed in a foreign language or according to foreign law or traditions, to the German language or traditions’. See Kohler, C., loc. cit., p. 22.

( 14 ) See point 66 of this Opinion.

( 15 ) According to the legal literature, ‘[i]t is true that the possibilities offered by [Article 10(3)] of the EGBGB to choose the law applicable to the child’s name can prevent such situations in many cases. But no solution exists when the child does not have German nationality and the surname acquired in the Member State of habitual residence differs from that provided for by national law … Consequently, the reaction of the German legislature stops halfway and fails to comply, in a significant number of cases, with the Court’s case-law …’. See Kohler, C., loc. cit., p. 22.

( 16 ) See also, in this regard, the information note for German diplomatic and consular missions in France concerning the administrative procedure for changes of name.

( 17 ) See in this regard points 8 and 13 of this Opinion.

( 18 ) Judgments of 11 July 2002, D’Hoop (C‑224/98, EU:C:2002:432, paragraph 27); 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 59); and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 28).

( 19 ) Judgments of 20 September 2001, Grzelczyk (C‑184/99, EU:C:2001:458, paragraph 31); 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraphs 60 and 61); and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraphs 29 and 30).

( 20 ) Judgments of 20 September 2001, Grzelczyk (C‑184/99, EU:C:2001:458, paragraph 33); 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 62); and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 31).

( 21 ) Judgments of 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 25); 14 October 2008, Grunkin and Paul (C‑353/06, EU:C:2008:559, paragraph 16); 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraphs 38 and 39); 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 63); and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 32).

( 22 ) Judgment of 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 27).

( 23 ) Judgments of 7 July 1992, Micheletti and Others (C‑369/90, EU:C:1992:295, paragraph 10), and 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 28).

( 24 ) Judgment of 2 October 2003 (C‑148/02, EU:C:2003:539).

( 25 ) Judgment of 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 15). At the material time ‘the surname of children of a married couple consist[ed] of the first surname of the father followed by that of the mother’.

( 26 ) See point 56 of the Opinion of Advocate General Jacobs in Garcia Avello (C‑148/02, EU:C:2003:311).

( 27 ) Judgment of 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 36).

( 28 ) Judgment of 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 45).

( 29 ) Judgment of 14 October 2008 (C‑353/06, EU:C:2008:559).

( 30 ) The child had been given, pursuant to Danish law, the double-barrelled surname ‘Grunkin-Paul’ composed of the surnames of both the father and mother, which had also been entered on his Danish birth certificate.

( 31 ) Judgment of 14 October 2008, Grunkin and Paul (C‑353/06, EU:C:2008:559, paragraph 7).

( 32 ) Judgment of 14 October 2008, Grunkin and Paul (C‑353/06, EU:C:2008:559, paragraph 39). On the other hand, in its judgment of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291) the Court established limits for the concept of ‘serious inconvenience’ and ruled that ‘the refusal of the competent authorities of a Member State, pursuant to the applicable national rules, 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 in the form in which 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 State does not, in a situation such as that at issue in the main proceedings, constitute a restriction on the freedoms conferred by Article 21 TFEU on every citizen of the Union’ (paragraph 82).

( 33 ) Judgment of 22 December 2010 (C‑208/09, EU:C:2010:806). That case concerned the refusal to recognise the surname of an Austrian national as determined in Germany, her Member State of residence, at the time of her adoption by a German national, which included a title of nobility which was not permitted in Austria under its constitutional law.

( 34 ) Judgment of 2 June 2016 (C‑438/14, EU:C:2016:401). That case concerned the refusal by the German authorities to recognise the name of a national holding dual German and British nationality who had acquired in the United Kingdom a name which he had chosen freely and which contained a number of tokens of nobility, which were not accepted by German law.

( 35 ) It should be noted that the German legislation concerned in the judgment of 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401), differed from the provisions of Austrian law examined in the judgment of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806), in that it did not provide for a strict prohibition on the use and transmission of titles of nobility, which could be borne as an integral part of a name. The Court nevertheless held that in that first case it had to be accepted that, considered in the context of the German constitutional choice, the German legislation, as an element of the national identity of a Member State, referred to in Article 4(2) TEU, could be taken into account as an element justifying a restriction on the right to freedom of movement of persons recognised by EU law (judgment of 2 June 2016, Bogendorff von Wolffersdorff, C‑438/14, EU:C:2016:401, paragraph 64).

( 36 ) According to the Court’s settled case-law, since Article 21 TFEU contains not only the right to move and reside freely in the territory of the Member States but also a prohibition of any discrimination on grounds of nationality, it is necessary to examine, in the light of that provision alone, the situation of the applicant in the main proceedings. See, by analogy, judgments of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 65), and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 34).

( 37 ) See judgments of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 52 and the case-law cited); 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 66); and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 35).

( 38 ) Judgments of 14 October 2008, Grunkin and Paul (C‑353/06, EU:C:2008:559, paragraph 21); 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 53); 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 68); and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 36).

( 39 ) Judgments of 14 October 2008, Grunkin and Paul (C‑353/06, EU:C:2008:559, paragraph 22), and 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 54).

( 40 ) See, to that effect, judgments of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 76), and 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 38).

( 41 ) See judgment of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 70). See also judgment of 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 40).

( 42 ) See also point 39 of this Opinion. It should be noted in this regard that, according to German legal literature, Article 48 of the EGBGB is a ‘minimal response’ by the German legislature to the requirements imposed by the Court’s case-law. It is clear from the travaux préparatoires for that provision that in its opinion the Bundesrat (Federal Council, Germany) had expressed its disagreement with the proposal by the Federal Government, stating that the Court’s case-law required a reaction not in substantive law but in private international law. The interest in avoiding ‘limping’ situations and creating legislation which could be properly implemented by the register authorities should lead to a solution being sought in the context of Article 10 of the EGBGB. In addition, the Bundesrat compiled an inventory of questions left open by the solution proposed by the Federal Government. See in this regard Kohler, C., ‘La reconnaissance de situations juridiques dans l’Union européenne: le cas du nom patronymique’, La reconnaissance des situations en droit international privé, sous la direction de Paul Lagarde, Actes du colloque international de la Haye du 18 janvier 2013, Éditions Pedone, 2013, p. 75.

( 43 ) In this regard, Mr Freitag was asked to inform the Court if he had lodged an application for a change of name under the Law on changes of name and, if so, what had been the response to that application. Mr Freitag answered that question in the negative and explained that, in an interview at the register office in Wuppertal, he had been told that the procedure for a change of name was not possible in his case because he had acquired the name Freitag by a Romanian judicial decision (see civil judgment No 458/s of Braşov District Court of 21 May 1997). An administrative decision could not thus annul a judicial decision. At the hearing, the German Government expressed its doubts regarding the accuracy of the information received by Mr Freitag. According to the German Government, it is not relevant to the acceptance of an application under the Law on changes of name whether a name used in another Member State originated from a declaration under family law, an administrative procedure, a judicial decision or a State act.

( 44 ) According to legal literature, the term ‘recognition’, as reflected in the judgments of the Court, should not be understood as referring, for example, to the recognition of judicial decisions. Instead, the term refers to ‘the process by which the host Member State accepts the surname as it exists in another Member State [of origin] and refrains from taking a position on its legality. The object of recognition is thus the legal status … concerning the surname of a person as it exists in another Member State’. See Kohler, C., loc. cit., p. 71. See also, in this regard, Mayer, P., ‘La reconnaissance: notions et méthodes’, La reconnaissance des situations en droit international privé, op. cit., pp. 27 to 33.

( 45 ) See in this regard point 41 of this Opinion.

( 46 ) I note that Article 48 of the EGBGB provides that ‘… [t]he choice of name shall take effect retroactively from the date of entry in the register of civil status of the other Member State, unless the person expressly declares that the choice of name is to have effect only for the future. The declaration must be publicly attested or certified …’. However, as the German Government confirmed at the hearing, the procedure for changes of name under the Law on changes of name does not have retroactive effect, which, as the Commission also stated at the hearing, is not contrary to EU law as it does not give rise to an obligation of retroactivity.

( 47 ) See, inter alia, by analogy, judgment of 12 September 2006, Eman and Sevinger (C‑300/04, EU:C:2006:545, paragraph 67).