Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others.
Date: 2011-05-12
30. It must be recalled in this regard that, within the framework of the cooperation between the Court and national courts and tribunals established by Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, and Case C‑45/09 Rosenbladt  [2010] ECR I‑0000, paragraph 32).
31. Moreover, according to the case-law of the Court, Article 267 TFEU establishes a non-contentious procedure which is in the nature of a step in the action pending before the national court and the parties to the main proceedings are merely invited to state their case within the legal limits laid down by the national court. In that context, the Court noted that, by the expression ‘parties’, the first paragraph of Article 23 of the Statute of the Court of Justice refers to the parties to the action before the national court (see, inter alia, Case 62/72 Bollmann [1973] ECR 269, paragraph 4, and the order in Case C‑73/07 Satakunnan Markkinapörssi and Satamedia [2007] ECR I‑7075, paragraph 11).
33. With regard to the task conferred on the Court by Article 267 TFEU, it is true that the Court has held that it cannot give a ruling on a question referred by a national court where it is quite obvious that the interpretation or the assessment of the validity of a provision of European Union law sought by the national court bear no relation to the actual nature of the case or to the subject-matter of the main action (see, inter alia, Case C‑143/94 Furlanis [1995] ECR I‑3633, paragraph 12).
41. As regards the substantive scope of Directive 2000/43, recital 12 in its preamble states that, in order to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, specific action in the field of discrimination based on racial or ethnic origin should go beyond access to employed and self-employed activities and cover areas such as those listed in Article 3(1) of that directive.
43. It should be noted in those circumstances that, in the light of the objective of Directive 2000/43 and the nature of the rights which it seeks to safeguard, and in view of the fact that that directive 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, the scope of that directive cannot be defined restrictively.
45. Although Article 3(1)(h) of Directive 2000/43 makes general reference to access to and supply of goods and services which are available to the public, it cannot be held, as the Advocate-General stated in point 58 of his Opinion, that such national rules come within the concept of a ‘service’ within the meaning of that provision.
53. With regard to the application ratione temporis of those provisions to the present case, it should be noted that the main proceedings do not concern the recognition of rights derived from European Union law and allegedly acquired prior to the accession of the Republic of Lithuania and the entry into force of the provisions on citizenship of the Union for that Member State. This case concerns an allegation of current discriminatory treatment or a current restriction in respect of a citizen of the Union (see, to that effect, Case C‑224/98 D’Hoop [2002] ECR I‑6191, paragraph 24).
55. T he Court has already held that the provisions on citizenship of the Union are applicable as soon as they enter into force. They must for that reason be applied to the present effects of situations arising previously ( D’Hoop , paragraph 25).
59. It must be recalled in this regard that Article 20 TFEU confers the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, D’Hoop , paragraph 27, and Case C‑34/09 Ruiz Zambrano [2011] I‑0000, paragraph 40). The first applicant in the main proceedings, who holds the nationality of a Member State of the European Union, enjoys that status.
60. Recognising the importance attached by primary law to the status of citizen of the Union, the Court has stated on several occasions that that status is intended to be the fundamental status of nationals of the Member States (see Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 82; Case C‑135/08 Rottmann [2010] ECR I‑0000, paragraphs 43 and 56; and Ruiz Zambrano , paragraph 41).
61. That status enables those among such nationals who find themselves in the same situation to enjoy, within the scope ratione materiae  of the Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (see, inter alia, Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31).
62. The situations falling within the scope ratione materiae of European Union law include those which involve 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 21 TFEU (see Grzelczyk , paragraph 33, and D’Hoop , paragraph 29).
63. Although, as European Union 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 latter must none the less, when exercising that competence, comply with European Union 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 (see, to that effect, Case C‑148/02 Garcia Avello  [2003] ECR I‑11613, paragraphs 25 and 26; Case C‑353/06 Grunkin and Paul [2008] ECR I‑7639, paragraph 16; and Case C‑208/09 Sayn-Wittgenstein [2010] ECR I‑0000, paragraphs 38 and 39).
65. Since Article 21 TFEU contains not only the right to move and reside freely in the territory of the Member States but also, as may be seen from paragraphs 61 and 62 of the present judgment and as the Commission has submitted in its observations, a prohibition of any discrimination on grounds of nationality, it is necessary to examine, in the light of that provision, the refusal by the authorities of a Member State to amend certificates of civil status in circumstances such as those at issue in the main proceedings.
The existence of a restriction on freedom of movement
66. It must be noted, as a preliminary point, that a person’s forename and surname are 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. Even though Article 8 of that convention does not refer to it expressly, a person’s forename and surname, as a means of personal identification and a link to a family, none the less concern his private and family life (see, inter alia, Sayn-Wittgenstein , paragraph 52 and the case-law cited).
67. In so far as a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to the nationals of those Member States who find themselves in the same situation, it would be incompatible with the right of freedom of movement if a citizen, in the Member State of which he is a national, were to receive treatment that is less favourable than that which he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to free movement ( D’Hoop , paragraph 30).
68. The Court has already held 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 (see, inter alia, Grunkin and Paul , paragraph 21, and Sayn-Wittgentstein , paragraph 53).
73. Many daily actions, both in the public and in the private domains, require a person to provide evidence of his or her own identity and also, in the case of a family, evidence of the nature of the links between different family members. A couple who are both citizens of the Union, such as the couple in the main proceedings, residing and working in a Member State other than their Member States of origin, must, in accordance with the provisions of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77; corrigenda in OJ 2004 L 229, p. 35, OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28), be in a position to prove the relationship which exists between them.
75. Such inconvenience might arise from the discrepancy in the forms in which the same surname is entered for two persons constituting the same married couple (see, to that effect, Garcia Avello , paragraph 36, and Sayn-Wittgenstein , paragraphs 55 and 66).
76. However, according to the Court’s case-law, in order to constitute a restriction on the freedoms recognised by Article 21 TFEU, the refusal to amend the joint surname of the applicants in the main proceedings under the national rules at issue must be liable to cause ‘serious inconvenience’ to those concerned at administrative, professional and private levels (see, to that effect, Garcia Avello , paragraph 36; Grunkin and Paul , paragraphs 23 to 28; and Sayn-Wittgenstein , paragraphs 67, 69 and 70).
77. It is therefore for the national court to decide whether there is a real risk, for a family such as that of the applicants in the main proceedings, because of the refusal on the part of the competent authorities to change the letter ‘V’ into a ‘W’ in the spelling of the surname of one of the members of that family, that family members will be obliged to dispel doubts as to their identity and the authenticity of the documents which they submit. If, in the circumstances of the case in the main proceedings, that refusal involves the possibility that the truthfulness of the information contained in those documents will be called into question and the identity of that family and the relationship which exists between its members placed in doubt, that might have significant consequences as regards, among other things, the exercise of the right of residence conferred directly by Article 21 TFEU (see, also to that effect, Garcia Avello , paragraph 36, and Sayn-Wittgenstein , paragraphs 55 and 66 to 70).
83. In the event that the national court finds that the refusal to amend the joint surname of the applicants in the main proceedings constitutes a restriction of Article 21 TFEU, it should be noted that, according to settled case-law, a restriction on 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, inter alia, Grunkin and Paul , paragraph 29, and Sayn-Wittgenstein , paragraph 81).
85. In that regard, it should be noted that the provisions of European Union law do not preclude the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the first official language (see Case C‑379/87 Groener [1989] ECR 3967, paragraph 19).
86. According to the fourth subparagraph of Article 3(3) EU and Article 22 of the Charter of Fundamental Rights of the European Union, the Union must respect its rich cultural and linguistic diversity. Article 4(2) EU provides that the Union must also respect the national identity of its Member States, which includes protection of a State’s official national language.
88. Measures which restrict a fundamental freedom, such as that provided for in Article 21 TFEU, may, however, be justified by objective considerations 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 Sayn-Wittgenstein , paragraph 90 and the case-law cited).
90. Furthermore, the importance of ensuring the protection of the family life of citizens of the Union in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty has been recognised under European Union law (see Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri  [2004] ECR I‑5257, paragraph 98).