Carlos Garcia Avello v Belgian State. - Reference for a preliminary ruling: Conseil d'État - Belgium. - Citizenship of the European Union - Transfer of surname - Children of nationals of Member States - Dual nationality

Tax and legal
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Opinion of the Advocate General

  1. The present case concerns the surnames of children born in Belgium to a married couple resident in Belgium. The father of the children is a Spanish national, the mother is a Belgian national and the children have dual nationality.

  2. When newborn children were entered in the Belgian population register, the children were given a two-part surname used by their father - Garcia Avello - which, in accordance with Spanish law and tradition, consists of the first part of his own father’s surname and the first part of that mother’s surname.

  3. The parents subsequently requested the Belgian authorities to change the children’s surname to Garcia Weber so that, in accordance with the Spanish model, it consisted of the first part of their father’s surname and the first part of their mother’s surname (used when unmarried). The application was rejected in breach of Belgian practice.

  4. The Belgian Conseil d’État now asks whether principles of Community law, such as those relating to citizenship of the European Union and the free movement of persons, may preclude the rejection of (an application).

Naming systems

  1. In Europe, people usually have two kinds of names. Others, which I call first names, are considered (as general as they may be) personal, private, and unique identifiers, while surnames (in the broadest sense of the term) almost always serve as a person’s identifier, linking him or her to his or her family or family, and are often considered inalienable. birthright. In addition to this basic classification, there are numerous variations.

  2. The differences and difficulties are already revealed in the “names of the names”. For example, in Dutch, French and German, the word “name” means a surname, while a nickname is used as a first name. However, such a practice would be inappropriate for Hungarians, who are expected to become citizens of the Union soon and who place their surname before their first name. In Italian and Spanish (and to a large extent also in English), the word “name” means a first name, and a different word is used for a surname. It can be misleading to talk about a last name as a “family name” because not all family members may have the same last name. For example, in Iceland (which is not a member of the Union but belongs to the European Economic Area), most people are identified by a first name and a name that indicates that the person is the son or daughter of their father (or mother), which is also referred to only by the first name. “Patronymic” is not necessarily a sufficiently precise name: a surname can also be a “metronym”, and it is relevant to the present case that the surname of Spanish children is not the same as either of their parents, but each generation creates a new surname that includes parts of both parents. family name.

  3. In order to assess the significance of the present case, it may be useful to consider briefly the rules in force in the Member States concerning the determination and modification of surnames. For the sake of simplicity, I am mainly considering a case such as that at issue in the main proceedings, namely the surname given to a child born to a married couple. In other cases - such as cases where the parents are not married to each other when the child is born, or where the parent’s surname changes later due to marriage, divorce and / or remarriage, or when the child is adopted - the situation may be different.

Applicable law

  1. In conflicts over surnames, most Member States give priority to the national law of the person’s home country, which determines his or her legal status. However, in Denmark and Finland the national law of those countries shall apply to persons domiciled in those States; In Sweden, Swedish law applies to resident Nordic citizens, and citizens of other countries are subject to their own national law. Ireland and the United Kingdom do not have a specific rule applicable in conflict situations; there is little need for such a rule, as the laws of the Member States concerned are so flexible that they allow any name to be taken or used under the system.

  2. Where the person concerned has the nationality of more than one country, one of which is Belgian, Belgian law shall apply in Belgium. The same solution has been adopted in Spanish law, with the necessary amendments, so that in the present case Belgian law takes precedence in Belgium and Spanish law in Spain.

Determining the surname to be given to the child

  1. In most Member States, children actually use their father’s surname, although there are differences in degree as to whether this practice is dictated by law or tradition.

  2. A child born to a married couple in Italy always seems to receive his father’s surname, even though this rule is rooted in custom and not in the law laid down, and other legislation has been proposed to allow greater flexibility. In most other Member States, it is possible for parents to choose from a number of options, although the choice is usually limited to the parents’ own surnames.

  3. As a general rule, when the parents have a common surname (usually the surname of one of the spouses), the child is given this surname, but otherwise the child can be given either the father’s or the mother’s surname. Another rule in several Member States is that all the children of a married couple must have the same surname, in which case the choice is in fact limited to the first child.

  4. The provisions of the various Member States differ as to whether it is possible to combine the surnames of the parents in the surname of the child. In some it is explicitly allowed or even prescribed, in others it is explicitly forbidden. In Denmark, it seems possible to use parents’ surnames combined with a hyphen, but not without a hyphen. The Portuguese rule seems much more flexible: a child’s surname can be made up of up to four different parts, chosen either from the surnames used by one or both parents or, in fact, from one or more grandparents, although it seems that surnames are usually Spanish; the relationship between part of the name and part of the mother’s name is usually the opposite).

  5. In the European Union, the greatest freedom of choice seems to exist in the United Kingdom, where (as in many other common law jurisdictions around the world) there is no rule of law governing the child’s surname. Thus, when announcing the birth of a child to the population register, parents can, in theory, choose any surname of their choice, although the social fact is that the father’s surname prevails predominantly.

  6. Under the rule in Article 335 of the Belgian Civil Code, a child receives only his father’s surname, except in cases where paternity has not been established or the father is married to a woman other than the child’s mother, in which case the child receives his mother’s surname.

  7. Numerous proposals have been made to the Belgian Federal Legislature to amend the law. If these proposals were adopted, the changes would allow greater freedom to choose a surname and perhaps also follow similar principles as in Spain. At the hearing, the representative of the Belgian Government pointed out that those proposals had been made by individual Members of Parliament and not by the Government, and that consideration of the proposals had been postponed indefinitely due to the forthcoming parliamentary elections.

  8. In Spain, the relevant rules are set out mainly in Articles 108 and 109 of the Código civil. As I have already explained, the general and traditional rule is that each child born in the couple’s last name has two parts consisting of the first part of the father’s last name and the mother’s surname first part of this order.

  9. In 1999, Article 109 of the Law was amended so that parents may, before the birth of their first child, decide to give all their children a surname consisting of those same parts in reverse order, with the first part of the mother’s surname coming first.

Changing the last name

  1. As with the determination of a surname, there are numerous variations between Member States in situations where a person may take a surname or use a surname other than that mentioned in his birth certificate. The relationship between an individual and his or her surname is mostly considered to be lifelong, both before the law and socially (with the exception of changes related to marriage and / or divorce). However, exceptions to the general rule are possible.

  2. Attitude is again the most liberal in the United Kingdom, where it is possible either to simply use another name in everyday life without any formalities or to change one’s name by a unilateral or statutory declaration, which usually does not need to be formally confirmed. In most other Member States, however, the official name change must be approved by the authorities and a good reason must be given.

  3. In Belgium, a change of name is permitted only in exceptional cases and the application must be justified on compelling grounds. Such a reason may be that the current surname makes the applicant ridiculed or that it is more difficult for the holder of the foreign name to integrate into Belgian society. A special reason considered serious is if the children of the same parents have different surnames, one under Spanish law and the other under Belgian law. A good reason must also be given in Spain. In both countries, the possibility to apply for a change of surname is limited to nationals of a Member State.

  4. In some Member States, such as France, it is possible and legal to use pseudonyms or pseudonyms in everyday life and even in some official documents, despite the strict rules on name changes in the population register. Such names are purely personal and cannot be given to offspring. However, such liberalism does not seem possible in Belgium.

Relevant provisions of the EC Treaty

  1. The main proceedings in the present case are Articles 17 and 18 of the EC Treaty, which provide:

"Article 17

  1. Citizenship of the Union is hereby established. A citizen of the Union is anyone who holds the nationality of a Member State. Citizenship of the Union complements and does not replace national citizenship.

  2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

Article 18

  1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
    • "
  1. As the Commission has pointed out in particular, Article 12 EC may also be relevant. Its first paragraph reads as follows:

“Without prejudice to any special provisions contained in this Agreement, any discrimination on grounds of nationality shall be prohibited within the scope of this Agreement.”

  1. Articles 39 EC and 43 EC are also mentioned. Article 39 guarantees the free movement of workers within the Community and Article 43 prohibits restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State. However, restrictions on those rights may be justified on grounds of public policy, public security or public health (Articles 39 (3) EC and 46 (1) EC).

European Convention on Human Rights

  1. Article 8 of the Agreement, which reads as follows, was cited during the proceedings:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. The authorities shall not interfere with the exercise of this right except where permitted by law and necessary in a democratic society for reasons of national and public security or the economic well-being of the country, or to prevent disorder and crime, protect health or morals, or protect the rights and freedoms of others. . "

  2. In a number of cases, in particular Burghartz and Stjerna, the European Court of Human Rights has ruled that, although Article 8 of the Treaty does not refer directly to names, a person’s name is linked to his private and family life because he can be identified and linked to his family.

Other international instruments

  1. A situation such as that which has given rise to the present problem is not new (although likely to become more widespread) and a number of attempts have been made to deal with it in the framework of international conventions on conflicts of law.

  2. Article 1 of the Convention on the Law Applicable to Surnames and Forenames of the International Commission on Civil Status (ICCS) provides:

"1. A person’s surname and forenames shall be determined by the law of the Member State of which he is a national. For that purpose alone, the assessment of the factors affecting surnames and forenames shall be governed by the law of that Member State.

  1. In the event of a change of nationality, the law of the new home State shall apply. "

  2. Under Article 2 of the Convention, the law designated by the agreement is to apply even if the State in question is not a Contracting State, and Article 4 provides that the law may be departed from only if it is manifestly contrary to public policy.

  3. The Convention does not apply to cases of dual nationality. The report acknowledges the existence of the problem, but concluded that “the name issue was too narrow to warrant an order”.

  4. Article 3 of the Hague Convention on the Choice of Law on Certain Nationalities provides that a person holding two or more nationalities may be considered a national of each of the States of which he is a national. Although Spain has not ratified the agreement, both Belgium and Spain appear to follow this principle in their choice of law when ordering the surname of a child with multiple nationalities - Belgian or Spanish, as the case may be, and one or more other nationalities.

  5. A problem such as that in the present case is approached in a different way by the ICCS Agreement on the Certificate of Surnames, Article 1 of which provides:

"1. The purpose of the certificate of different surnames obtained by this Agreement is to facilitate the identification of persons who, due to differences between the laws of certain States, have different particularly in connection with marriage, kinship and adoption, there is more than one surname.

  1. The sole purpose of the certificate shall be to establish that the surnames mentioned therein relate to the same person under different laws. It cannot override legislation on names. "

  2. Article 2 of the Convention provides that "either the competent authorities of the Contracting State of which he is a national or the competent authorities of the Contracting State under whose law a person, even though he is a national of another State, has been given a different surname than under his national law shall issue such a certificate. to each person when he submits the supporting documents for the application ". Under Article 3 of the Agreement, each Contracting State is required to accept such a certificate, which “proves the accuracy of the information it contains with regard to the surnames of the person named therein, unless and until proven otherwise”.

  3. Many Member States of the European Union have signed both ICCS agreements, including Belgium and Spain. But although Spain has ratified both and the agreements are in force between it and the other contracting states that have ratified the agreement, Belgium is not yet one of them.

  4. Finally, mention may be made of the United Nations Convention on the Rights of the Child. Article 3 (1) of the Agreement provides: “In all actions relating to children, whether taken by public or private social services, courts of law, administrative authorities or legislative bodies, the child’s best interests must be a primary consideration.” Article 7 (1) of the Convention provides, inter alia, that a child shall be “registered immediately after birth and shall have the right to a name from birth”; and Article 8, paragraph 1: “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and relationship, as provided by law without unlawful interference.”

The main proceedings

  1. Carlos Garcia Avello, a Spanish national, and Isabelle Weber, a Belgian national, were married in 1986. In 1988 and 1992, they had two children in Belgium who have dual Spanish and Belgian nationality. In accordance with Belgian law and Belgian practice, Garcia Avello was entered on the children 's Belgian birth certificates in accordance with Belgian law and Belgian practice. The children were also registered in the consular section of the Spanish Embassy in Brussels in accordance with Spanish law and Spanish practice under the surname Garcia Weber.

  2. In 1995, the parents asked the Belgian authorities to change their children’s surnames from Garcia Avello to Garcia Weber. They stressed that the roots of Spanish surname practice are deeply rooted in Spanish law, tradition and customs that children perceive as closer to themselves. In this system, the children ‘s surname, Garcia Avello, implied that the children would be their father’ s siblings and not his children, and that they would not have a contact with their mother through the name. The requested change would allow children to use the same surname in Belgium as in Spain; the name is not likely to harm anyone or cause confusion, and the permanence of the first part of the name “Garcia” would be sufficient to ensure the continuity of the name on the father’s side.

  3. In 1997, the Belgian Ministry of Justice proposed that the children’s surname be simplified to “Garcia”. The parents did not agree to the proposal, after which the Ministry informed Garcia Avello that the Government considered that there were insufficient grounds for approving the applicants’ initial application, as "applications for a child’s surname with mother’s name are usually rejected on the grounds that children receive name ".

  4. Mr Garcia Avello appealed against the decision to the Conseil d’État on a number of grounds, in particular on the ground that it infringed both the Belgian Constitution and Article 18 EC by treating persons in different situations (only Belgian nationals and dual nationals) in the same way. without objective justification.

  5. In its reply, the Belgian State stated that (i) surnames are governed by the rules on the personal status of the persons concerned, that is to say, by national law; where persons have dual nationality, the Hague Convention, signed in 1930, gives priority to the law of the seat of the court, in this case Belgium; (ii) the administrative practice in question is not established for all Belgian nationals, but for persons with dual nationality, so that persons in different situations are not, in fact, treated in the same way; (iii) where Belgian children have only the name of their father, the granting of another name may raise questions in Belgian society as to who the parents of that child are; (iv) in order to mitigate the disadvantages of dual nationality, applicants are asked to whether they are willing to take only the father’s first surname; in exceptional cases, where there are few connections to Belgium or where it is desired to obtain the same surname for the siblings, a positive decision may be taken, but in the present case these conditions are not fulfilled; (v) finally, freedom of movement under Article 18 EC takes the form, above all, of the abolition of frontiers and border controls, and freedom of residence means the possibility of settling in the Member States of the European Union; the contested measure cannot infringe that provision, since the exercise of those freedoms does not in any way require the use of a particular surname.

  6. The Conseil d’État acknowledges that the administrative practice in question applies only to persons with dual nationality and that they are not treated in the same way as persons with only Belgian nationality. However, it considers that Article 18 EC may be relevant - but not Article 43 EC, which concerns freedom of establishment, which is clearly not the case in an application for a change of surname on behalf of minor children.

  7. It therefore stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

'Are the principles of Community law on citizenship of the European Union and the free movement of persons laid down in Articles 17 and 18 of the Treaty establishing the European Community of 25 March 1957 to be interpreted as precluding the Belgian authorities from refusing to reject Belgian and Belgian and Spanish nationals an application for a change of name which is not justified by specific circumstances other than the fact that the children should have a name in accordance with Spanish law and traditions, arguing that such an application is normally rejected on the grounds that children receive their father’s name in Belgium, in particular that it considers that giving another name may raise questions in Belgian society as to who the parents of the child in question are, but in order to alleviate the disadvantages associated with dual citizenship, applicants are advised to take only the father’s first name and, in exceptional cases, a positive decision may be taken where there are few access points to Belgium or where the same generation of members of a particular family is to be given the same name? "

  1. Written observations have been submitted by Garcia Avello, the Belgian, Danish and Netherlands Governments and the Commission, all of which presented oral argument at the hearing.

Judgment

  1. The Belgian, Danish and Netherlands Governments submit that the situation at issue in the main proceedings does not fall within the scope of Community law at all. This question must be examined first before it can be considered whether the rejection of an application such as the present one infringes the rights of citizens of the European Union and, if so, whether such an infringement is justified.

Does the case fall within the scope of Community law?

  1. ​​In that regard, it is essential to identify who is affected by the rejection of an application for a change of surname of a child.

  2. The three Governments submit that the rejection concerns only children and that they are Belgian nationals resident in Belgium who have not exercised their right to freedom of movement; therefore, the situation is entirely internal to Belgium and does not fall within the scope of Community law. The Commission, for its part, contends that, above all, Garcia Avello has been denied the right to change the surname of his children; the applicant is a Spanish national who has exercised his right to freedom of movement by coming to live and work in Belgium, which is what Community law enters. The Commission submits that the situation of children is in itself a matter for Community law.

  3. The difference of opinion is linked to the settled case-law of the Court, which seeks to ensure that no rights are conferred by the Treaty unless there are sufficient links with Community law for its provisions to apply. In the case of freedom of movement, there is no such connection where the present case concerns a relationship between a Member State and a person who has never exercised his right to freedom of movement. In Uecker and Jacquet, the Court stated that 'citizenship of the Union, as provided for in Article [17 EC], is not intended to extend the material scope of the Treaty to matters within the territory of the Member States which have no connection with Community law. under the law of that Member State falls within the scope of that Member State’s law and must therefore be accordance with this Regulation. "

  4. I agree with the Commission.

  5. In the first place, it seems clear to me that the contested rejection does in fact concern Garcia Avello. He and his wife, as “legal representatives of minor children”, originally applied for a change of surname in 1995, but both responses to the application from the Ministry of Justice were addressed solely to Garcia Avello and Garcia Avello is a plaintiff in the annulment proceedings before the Conseil d’État. More importantly, it is not just a question of choosing the children’s surname per se, but of how one generation’s surname is determined by the names used or used by the previous generation; Indeed, the Belgian Government strongly emphasizes this aspect. Such a matter clearly concerns both generations, and it is just as much in the interests of the father to ensure the transfer of his surname in accordance with the principles on which it was formed as it is in the interests of children to inherit a surname in an appropriate manner and form.

  6. Since Mr Garcia Avello is a national of one Member State who has exercised his right to move and work in another Member State and a Union citizen who has exercised his right to move and establish himself freely in the territory of the Member States, his situation falls well within Community law.

  7. Secondly, in any event, I cannot agree that the situation of children is a purely internal matter in Belgium. Although the children are Belgian nationals, born in Belgium and have never lived outside that country, they all equally have the nationality of another Member State. This fact is essentially related to the fact that their father, whose dependent children are, has exercised his right to free movement. Although the 1930 Hague Convention entitles the Belgian authorities to treat children as Belgian nationals in that country, it does not require them to disregard their other nationality. If their mother were Spanish and not Belgian, the situation of children as minor children of nationals of a Member State who have exercised their right to freedom of movement within the Community would clearly fall within the scope of Community law. What is relevant to that right is the fact that they have the nationality of two Member States, and it is unacceptable for one nationality to be overshadowed by another, depending on where the parties happen to be.

  8. I am therefore of the opinion that the present situation in the main proceedings falls within the scope of Community law.

Has a right under Community law been infringed?

  1. It is necessary to consider the question of the adverse effects of the present rejection. There seem to be two sides to this.

  2. First of all, as I have stated, both Mr Garcia Avello and his children may object to the fact that he can not pass his surname for their children - and the children can inherit it from him - in accordance with the principles adopted by the name is formed. The objection is not merely principled, since, as has been shown, the application of the Belgian system to a Spanish surname is liable to distort the image of family relations for those familiar with the Spanish system: it appears as if Garcia Avello’s children were his siblings.

  3. Secondly, children may face obvious practical difficulties as a result of the Belgian authorities registering their surnames in a different form from the Spanish authorities. At the hearing, Mr Garcia Avello’s legal assistant drew attention, by way of example, to the situation in which a school certificate was issued in Belgium under a name which is not recognized in Spain as a person’s name; other examples are given in the report section of the 1982 Hague Agreement.

  4. It is common ground that Community law does not provide for the entry of names in the registers of births, marriages, deaths or marriages or for changes in registration. Such matters fall, in principle, within the legislative competence of the Member States, as do all provisions relating to private international law, provided that the Member States comply with their obligations under Community law when deciding on such matters.

  5. The Court has considered such a question of entry in the light of Community law in the context of an earlier case: Konstantinidis. In that case, a Greek national who had been an entrepreneur in Germany had found that his name had been transliterated in the Latin alphabet in the German population register in a form which was both very unexpected and strikingly inappropriate, albeit according to the Greek alphabet to Latin alphabet.

  6. In my Opinion in that case, see essentially, that the applicant’s rights under Community law had been infringed on the ground that he had been discriminated against, as prohibited by the combined provisions now Articles 12 EC and 43 EC, due to the fact that only Greek nationals had to accept transliteration of his name in Germany. both to deprive them of dignity and to cause inconvenience in everyday and professional life. In the alternative, I considered that such transliteration could infringe his fundamental rights, as enshrined, inter alia, in the European Convention on Human Rights, which are guaranteed to every Community citizen who exercises his right of free establishment.

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