Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien.
Date: 2010-12-22
38. Although, as European Union law stands at present, the rules governing a person’s surname and the use of titles of nobility are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with European Union law (see, to that effect, Grunkin and Paul , paragraph 16).
39. It is common ground that the applicant in the main proceedings is a national of a Member State and, in her capacity as citizen of the Union, has made use of the freedom to move to and reside in another Member State. She is therefore entitled to rely on the freedoms conferred by Article 21 TFEU on all citizens of the Union.
41. It is common ground that, in the present case, the referring court asks the Court about the interpretation of Article 21 TFEU, in conjunction with the judgment in Grunkin and Paul , and the non-recognition in a Member State of a surname obtained in another Member State, irrespective of whether the person concerned engaged in an economic activity. It is noteworthy, in that regard, that the referring court does not consider it necessary to state in what capacity the applicant in the main proceedings resides in Germany. By its question, it wishes in essence to ascertain whether reasons of a constitutional nature may authorise a Member State not to recognise all the elements of a name obtained by one of its nationals in another Member State and not whether a failure to recognise a name legally acquired in another Member State constitutes an obstacle to the freedom to provide services guaranteed by Article 56 TFEU.
42. It is therefore necessary to examine in the light of Article 21 TFEU the refusal by the authorities of a Member State to recognise all the elements of a surname of a national of that State obtained by means of adoption in another Member State, in which that national resides.
Existence of a restriction on the freedom of movement and residence enjoyed by citizens of the Union
Observations submitted to the Court
52. It must be noted 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. Even though Article 8 of that convention does not refer to it explicitly, a person’s name, as a means of personal identification and a link to a family, none the less concerns his or her private and family life (see, inter alia, European Court of Human Rights judgments Burghartz v. Switzerland  of 22 February 1994, Series A No 280-B, p. 28, § 24, and Stjerna v. Finland  of 25 November 1994, Series A No 299-B, p. 60, § 37).
53. 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 (see, inter alia, Grunkin and Paul , paragraph 21; Case C-221/07 Zablocka-Weyhermüller  [2008] ECR I‑9029, paragraph 35; and Case C-544/07 Rüffler  [2009] ECR I‑3389, paragraph 73).
54. According to the case-law of the Court, 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 the right, established in Article 21 TFEU, to move and reside freely within the territory of the Member States ( Grunkin and Paul , paragraphs 21 and 22).
55. In Case C-148/02 Garcia Avello  [2003] ECR I-11613, the Court held legislation of a Member State which obliged a person to use different family names in different Member States to be incompatible with Articles 12 EC and 17 EC. In that context the Court held, as regards children with the nationality of two Member States, that 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 the Member State of which they are nationals, from the legal effects of diplomas or documents drawn up in the name recognised in another Member State of which they are also nationals. The person concerned may also encounter difficulties linked inter alia to the drawing up of certificates or diplomas which clearly reveal a name that differs from his surname. That fact may give rise to doubts as to the person’s identity, the authenticity of the documents submitted or the veracity of their content (see, to that effect, Garcia Avello , paragraph 36).
56. The Court held in paragraph 24 of Grunkin and Paul  that such serious inconvenience may likewise arise where the child concerned holds the nationality of only one Member State, but that State of origin refuses to recognise the family name acquired by the child in the State of birth and residence.
66. Confusion and inconvenience are liable to arise from a divergence between the two names used for the same person.
67. Thus, for the applicant in the main proceedings, ‘serious inconvenience’ within the meaning of Grunkin and Paul  results from having to alter all the traces of a formal nature of the name ‘Fürstin von Sayn-Wittgenstein’ left in both the public and the private spheres, given that her official identity documents currently refer to her by a different name. Even if, once carried out, the alteration will eliminate all future divergence, it is probable that the applicant in the main proceedings is in possession of and will be required to produce documents issued or drawn up before the alteration, which show a different surname from that appearing in her new identity documents.
69. The Court has already held that, every time the surname used in a specific situation does not correspond to that on the document submitted as proof of a person’s identity, or the surname in two documents submitted together is not the same, such a difference in surnames is liable to give rise to doubts as to the person’s identity and the authenticity of the documents submitted, or the veracity of their content ( Grunkin and Paul , paragraph 28).
70. Even if that risk may not be as grave as the serious inconvenience to be feared for the child in question in the case which gave rise to the judgment in Grunkin and Paul , the real risk, in circumstances such as those in the main proceedings, of being obliged because of the discrepancy in names to dispel doubts as to one’s identity is such as to hinder the exercise of the right which flows from Article 21 TFEU.
71. Consequently, the refusal, by the authorities of a Member State, to recognise all the elements of the surname of a national of that State as determined in another Member State, in which that national resides, and as entered for 15 years in the register of civil status of the first Member State, is a restriction on the freedoms conferred by Article 21 TFEU on every citizen of the Union.
Existence of a justification for the restriction on the freedom of movement and residence enjoyed by citizens of the Union
Observations submitted to the Court
81. In accordance with settled case-law, an obstacle to the freedom of movement of persons can be justified only where it is based on objective considerations and is proportionate to the legitimate objective of the national provisions (See Case C-406/04 De Cuyper  [2006] ECR I-6947, paragraph 40; Case C-76/05 Schwarz and Gootjes-Schwarz  [2007] ECR I‑6849, paragraph 94; Grunkin and Paul , paragraph 29; and Rüffler , paragraph 74).
85. Objective considerations relating to public policy are capable of justifying, in a Member State, a refusal to recognise the surname of one of its nationals, as accorded in another Member State (see, to that effect, Grunkin and Paul , paragraph 38).
86. The Court has repeatedly noted that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the European Union institutions (see Case C-36/02 Omega  [2004] ECR I‑9609, paragraph 30, and Case C-33/07 Jipa  [2008] ECR I‑5157, paragraph 23). Thus, public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see Omega , paragraph 30 and the case‑law cited).
87. The fact remains, however, that the specific circumstances which may justify recourse to the concept of public policy may vary from one Member State to another and from one era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the Treaty (see Omega , paragraph 31 and the case-law cited).
90. Measures which restrict a fundamental freedom may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to secure and only in so far as those objectives cannot be attained by less restrictive measures (see Omega , paragraph 36, and Jipa , paragraph 29).
91. The Court has already explained in that regard that it is not indispensable for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected and that, on the contrary, the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another State (see Omega , paragraphs 37 and 38).
92. It must also be noted that, in accordance with Article 4(2) TEU, the European Union is to respect the national identities of its Member States, which include the status of the State as a Republic.