Stefan Grunkin and Dorothee Regina Paul.
Date: 2008-10-14
16. Although, as Community law stands at present, the rules governing a person’s surname are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with Community law unless what is involved is an internal situation which has no link with Community law (see Case C‑148/02 Garcia Avello  [2003] ECR I-11613, paragraphs 25 and 26, and the case-law cited).
17. The Court has already held that such a link with Community law does exist in regard to children who are nationals of one Member State and are lawfully resident in the territory of another Member State (see Garcia Avello , paragraph 27).
21. 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 18(1) EC on every citizen of the Union (see Case C-406/04 De Cuyper  [2006] ECR I-6947, paragraph 39, and Case C-499/06 Nerkowska  [2008] ECR I-0000, paragraph 32).
22. Having to use a surname, in the Member State of which the person concerned is a national, that is different from that conferred and registered in the Member State of birth and residence is liable to hamper the exercise of the right, established in Article 18 EC, to move and reside freely within the territory of the Member States.
23. The Court has already 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 surname recognised in another Member State of which they are also nationals. ( Garcia Avello , point 36).
24. Such serious inconvenience may likewise arise in a situation such as that of the main proceedings. It matters little in that regard whether the discrepancy in surnames is the result of the dual nationality of the persons concerned or of the fact that, in the State of birth and residence, the connecting factor for determination of a surname is residence whilst, in the State of which those persons are nationals, it is nationality.
25. As the Commission observes, many everyday dealings, in both the public and the private spheres, require proof of identity, which is usually provided by a passport. As the child Leonhard Matthias has only German nationality, the issuing of that document falls within the competence of the German authorities alone. If those authorities refuse to recognise the surname as determined and registered in Denmark, the child will be issued with a passport by those authorities in a name that is different from the name he was given in Denmark.
26. Consequently, every time the child concerned has to prove his identity in Denmark, the Member State in which he was born and has been resident since birth, he risks having to dispel doubts concerning his identity and suspicions of misrepresentation caused by the difference between the surname he has always used on a day-to-day basis, which appears in the registers of the Danish authorities and on all official documents issued in his regard in Denmark, such as, inter alia, his birth certificate, and the name in his German passport.
27. Furthermore, the number of documents, for instance attestations, certificates and diplomas, on which there is a difference in the surname of the child concerned is likely to increase with the passing years, in so far as the child has strong links with both Denmark and Germany. It is apparent from the file that, although he lives mainly with his mother in Denmark, the child regularly stays in Germany on visits to his father, who settled there after the couple divorced.
28. 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, inter alia with a view to obtaining benefits or an entitlement of some sort or to prove that examinations have been passed or skills acquired, or the surname in two documents submitted together is not the same, such a difference in surnames is likely to give rise to doubts as to the person’s identity and the authenticity of the documents submitted, or the veracity of their content.
29. An obstacle to freedom of movement such as that resulting from the serious inconvenience described in paragraphs 23 to 28 of this judgment could be justified only if it was based on objective considerations and was proportionate to the legitimate aim pursued (see, to that effect, Case C‑318/05 Commission  v Germany  [2007] ECR I-6957, paragraph 133, and the case-law cited).
38. In addition, it must be pointed out that no specific reason was cited before the Court that might possibly preclude recognition of the child Leonhard Matthias’s surname, as conferred and registered in Denmark, for instance that that name was contrary to public policy in Germany.