FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42973/98
by Catharina C.J.H. BIJLEVELD
against the Netherlands
The European Court of Human Rights (First Section), sitting on 27 April 2000 as a Chamber composed of
MrsE. Palm, President,
MrJ. Casadevall,
MrL. Ferrari Bravo,
MrC. Bîrsan,
MrB. Zupančič,
MrsW. Thomassen,
MrT. Panţîru, judges,
andMrM. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 23 March 1998 and registered on 26 August 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1958, and living in Leiden. She is represented before the Court by Ms A.N.H.M. Spruit, a lawyer practising in Rotterdam.
A.Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and her husband have two sons, born in 1988 and 1991 respectively, and two daughters, born in 1994 and 1997 respectively.
Pursuant to the relevant rules of Dutch law, these children bear the surname of the applicant’s husband. As the applicant and her husband wished their sons to bear the surname of their father and their daughter to bear the surname of the applicant, the applicant filed a request on 12 September 1994 to change the surname of her, at that time still unborn, daughter.
On 24 November 1994, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request. The applicant’s subsequent appeal to the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 23 May 1996. The applicant filed a further appeal with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).
In its decision of 25 September 1997, the Administrative Law Division rejected the applicant’s appeal against the decision of 23 May 1996. It noted that, under the relevant domestic rules, a minor child’s surname could be changed into the mother’s surname upon a request to this effect, when the mother - after the dissolution of the marriage or termination of the non-marital cohabitation with the father - has raised the child as an unmarried parent for at least three years immediately prior to the request. It further noted that permission to change the surname of a minor child could also be granted when, considering the particular circumstances of the case, a refusal to do so would entail serious damage to the child’s physical or mental health.
It recalled that the State Secretary had based the refusal of the applicant’s request on a finding that the relevant rules on the chance of surnames did not foresee in a request like the applicant’s one and that it had not been established that there were such special circumstances on the basis of which a strict application of the relevant rules would not be acceptable ex aequo et bono. It further noted that the Regional Court had also not found such circumstances.
Insofar as the applicant argued that the Dutch rules on surnames are contrary to Article 26 of the International Covenant on Civil and Political Rights in that they amount to a discriminatory treatment between men and women, the Administrative Law Division held that the request at issue only concerned one of the applicant’s children whereas no such request had been made for her other two children. The refusal at issue was not found to be discriminatory as it achieved that all children having the same parents bear the same surname and that therefore no difference between boys and girls was made. Moreover, in the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code (Burgerlijk Wetboek), the legislator had, in the meantime, created the possibility for parents to choose themselves which of their respective surnames their children will bear, albeit with the restriction that all of their children must bear the same surname. It held that this restriction was in conformity with its consideration as to the alleged discriminatory character of the refusal of the applicant’s request.
As to the applicant’s argument that the refusal of her request was in violation of Article 8 of the Convention, the Administrative Law Division held that there was no interference, as such, with the applicant’s rights under this provision in that the refusal did not alter the applicant’s personal situation or her family life with her daughter. As to the question whether the Netherlands were under a positive obligation under Article 8 of the Convention to grant the applicant’s request, it was held that the applicant’s personal interest, i.e. the continuation of her family name by her daughter’s surname, was outweighed by the general interest in preserving the stability required in the legal rules governing names (“de handhaving van de nodige stabiliteit in het namenrecht”) and that, therefore, the Netherlands authorities were not under a positive obligation to grant the applicant’s request.
B.Relevant domestic law and practice
Until 1 January 1998, a child born in wedlock or a child whose father had recognised his paternity automatically obtained the father’s surname. Only limited possibilities existed to obtain change of one’s surname.
On 1 January 1998, as a result of the entry into force of the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code, the rules governing surnames were changed.
Under the new situation, married parents may make a joint formal declaration, either before or when formally registering the birth of their first child, stating whether the child will bear the surname of the father or the mother. This declaration will continue to apply to any children born subsequently to the couple. In the absence of any declaration, a child will automatically obtain the father’s surname.
If the parents are not married, the child will obtain the mother’s surname; also where the father has recognised his paternity. If unmarried parents wish their child to bear the father’s surname, a joint formal declaration to this effect must be made at the time of the father’s recognition of his paternity.
The change in the law also included transitory rules in respect of children born before 1 January 1998, provided that the oldest child, at the time the parents make their formal declaration, has not yet attained the age of twelve. These transitory rules remained in force until 1 January 2000. Under these transitory rules, parents may make a joint formal declaration to the effect that their child or children bear the mother’s surname. Any children born subsequently to the couple will then automatically obtain the mother’s surname.
COMPLAINTS
The applicant complains that the former Dutch rules on surnames constitute a flagrant violation of the principle of non-discrimination as well as an unlawful interference with her right to respect for her private and family life. She relies on Article 8 and 14 of the Convention as well as on Article 26 of the International Covenant on Civil and Political Rights and Articles 2 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women.
The applicant further submits that also the new rules on surnames are not in conformity with Articles 8 and 14 of the Convention. She argues that it is not the legislator but those involved - i.e. the parents - who must have the opportunity to choose the surname of their children. However, having made that choice for the parents, the legislator continues to interfere with the right to respect for a person’s private and family life by depriving those directly involved of the right to choose a name themselves. She argues that parents must have equal rights in choosing the surname for their children. Under the new rules, in case of a conflict between the parents, the child will automatically obtain the father’s surname. As, for the purpose of passing on her surname to her children, a mother’s right to choose is therefore restricted by the father’s power of veto, the new rules are also contrary to Article 14 of the Convention in conjunction with Article 8 in that it constitutes discrimination on the mere grounds of sex without any objective justification;
PROCEDURE
The application was introduced on 23 March 1998 and registered on 26 August 1998.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicant complains that both the former Dutch rules on surnames as well as the new rules in force as from 1 January 1998 are contrary to Article 8 of the Convention, both taken alone and in conjunction with Article 14 of the Convention. She further relies on Article 26 of the International Covenant on Civil and Political Rights and Articles 2 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women.
1.The Court observes in the first place that, under the terms of Article 19 of the Convention, it is not competent to examine the applicant’s complaints under the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women.
2.Secondly, the Court notes that the relevant domestic rules have changed on 1 January 1998, that these new rules included a transitory regime for children born before 1 January 1998 which regime was applicable to the applicant’s children, and that, in the instant case, the Administrative Law Division has had regard to these new rules in its decision of 25 September 1997. In this situation, the Court is of the opinion that it is not necessary to examine the compatibility of the former rules with Articles 8 and 14 of the Convention, but will limit its examination to the question whether or not the rules currently in force are in conformity with these two provisions of the Convention.
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
3.The Court recalls that, although Article 8 of the Convention does not contain any explicit reference to names, a person’s name does concern his or her private and family life as it constitutes a means of personal identification and a link to a family (cf. Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, p. 60, § 37; and Guillot v. France judgment of 24 October 1996, Reports of Judgments and Decisions 1996-V, p. 1602, § 21).
The refusal of the Netherlands authorities to grant the applicant’s request cannot, in the view of the Court, necessarily be regarded as an interference in the exercise of the applicant’s right to respect for her family and private life (cf. Stjerna v. Finland judgment, loc. cit., § 38).
However, the Court reiterates that the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective "respect" for private and family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (cf. Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C, p. 56, § 31; and X, Y and Z v. the United Kingdom judgment of 22 April 1997, p. 631, § 41).
The present case raises the question whether the Netherlands authorities were under a duty to grant the applicant’s request to change the surname of her daughter. The Court will, therefore, view the case as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation.
The Court recalls that legal restrictions on the possibility of changing surnames may be justified in the public interest, that Contracting States enjoy a wide margin of appreciation in this legal area and that it is not the task of the Court to substitute itself for the competent domestic authorities in determining the most appropriate policy for regulating changes of surnames in a particular Contracting State, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (Stjerna v. Finland judgment, loc. cit., p. 61, § 39).
The Court notes that the applicant’s request at issue only concerned her daughter. No request was made to alter the surname of her two sons. The Court further notes that, both under the former and current rules on surnames in the Netherlands, the applicant’s request was bound to fail in that the requirements under these rules for changing a surname were not met. It further notes that, in reply to the applicant’s argument under Article 8 of the Convention, the Administrative Law Division held that the applicant’s personal interest, i.e. the continuation of her family name through her daughter, was outweighed by the general interest in preserving the stability required in the legal rules governing names.
Noting the current possibilities under Dutch law for parents to choose whether their children will bear either the surname of the father or of the mother and recalling the Contracting States’ wide margin of appreciation in this legal area, the Court cannot find, in the particular circumstances of the present case, that the refusal of the applicant’s request to give a different surname to her daughter than the surname given to her sons constituted a lack of respect for her private and family life within the meaning of Article 8 of the Convention.
It follows that this part of the application must be rejected as being manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.
4.As regards the applicant’s complaint under Article 14 in conjunction with Article 8 of the Convention, the Court recalls that Article 14 affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. For the purposes of Article 14 of the Convention, a difference in treatment is discriminatory if it has no objective or reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (cf. Stjerna v. Finland judgment, loc. cit., p. 63, § 48).
The Court further reiterates that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be put forward before a difference in treatment on the sole ground of sex could be regarded as compatible with the Convention (cf. Burghartz v. Switzerland judgment of 22 February 1994, Series A no. 280-B, p. 29, § 27).
The Court notes that the applicant’s request was rejected as the relevant rules did not provide for the possibility sought by the applicant, i.e. to solely change the surname of her daughter. Noting that it has not been argued and that it has not appeared that any requests to this effect made by others have in fact been granted, the Court fails to see in what manner the applicant received a different treatment from others.
As to the question whether the rules currently in force entail a difference in treatment based on sex, the Court observes that these rules left the starting point that children of married parents and children whose paternity has been recognised by the father automatically bear the surname of the father. After the amendment of the rules on surnames, parents may choose which of their respective surnames will be given to their children, albeit with the restriction that all of their children will bear the same surname. The children of married parents will automatically bear the surname of their father. They can, however, obtain the mother’s surname where the parents have made a joint declaration to this effect. Furthermore, this rule applies to both male and female children. Therefore, the Court finds no indication of a difference in treatment based on sex in their respect.
As regards the position of the parents on this point, it is true that the possibility to pass on the mother’s surname to children of a married couple is made subject to the making of a joint declaration of the parents and that, in case the parents disagree on this point, the rule that children automatically bear the father’s surname applies. There is therefore a difference in treatment between men and women in that the possibility to pass on a mother’s surname is made dependent on an explicit agreement between both parents, whereas the possibility to pass on the father’s surname is not based on such an agreement.
The question therefore arises whether there is an objective or reasonable justification for this difference in treatment. It appears from the decision of the Administrative Law Division that the legitimate aim pursued is to achieve that all children having the same parents bear the same surname. The Court observes that the automatic rule at issue only applies where parents have not made a joint formal declaration as to their children’s surname and that it appears that this automatic rule is based on the rules in force until 1 January 1998.
Recalling the margin of appreciation of Contracting States as to the assessment whether and to what extent differences in otherwise similar situations justify a difference in treatment, the Court accepts that a Contracting State may regard as undesirable a situation in which the surname of a child would remain undetermined until both parents have reached an agreement on this point and, in order to prevent such a situation, establish an automatic rule which applies in the absence of such an agreement. It therefore considers that, as to the difference in treatment complained of in the present case, there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
It follows that this part of the application must also be rejected as being manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy