FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33572/02
by Alexandra VON REHLINGEN and Others
against Germany
The European Court of Human Rights (Fifth Section), sitting on 6 May 2008 as a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
Eckart Klein, ad hoc judge,
and Claudia Westerdiek, Registrar,
Having regard to the above application lodged on 6 September 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The four applicants are Mrs Alexandra Freifrau von Rehlingen, Mr Matthias Prinz and their two children: Antonia Luisa Alexandrine, and Fidelius Friedrich Günter. They are all German nationals who were born in 1955, 1956, 1990 and 1992 respectively and live in Hamburg.
The applicants were all represented before the Court by the second applicant, Mr M. Prinz, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
I. Background to the case
According to the initial regulation of Article 1616 of the German Civil Code (Bürgerliches Gesetzbuch) of 18 August 1896, a child born in wedlock would obtain the surname of the father, which would also be the common family name. With the introduction of the Act on the Reform of the Marital and Family Law (Erstes Gesetz zur Reform des Ehe- und Familienrechts) of 14 June 1976, a married couple could choose either of the spouses’ surnames as the family name. Their children would then obtain the same family name. If the parents were unable to choose a family name, the husband’s surname would automatically become the family name according to the then applicable version of Article 1355 § 2 of the German Civil Code. That provision was held to be unconstitutional and incompatible with the prohibition of discrimination against women (Article 3 § 2 of the Basic Law) by the Federal Constitutional Court on 5 March 1991.
The Federal Constitutional Court ordered that, until the legislator had found a new regulation, couples who married after the day of the publication of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames. In such an instance, their children were provisionally able to obtain a compound name composed of both surnames of the parents, in order to leave to the legislator the option to introduce the possibility to obtain such names.
On 1 April 1994, the Act on the Regulation of the Law of Family Names (Gesetz zur Neuordnung des Familiennamensrechts) came into force which corrected the above constitutional flaws. Article 1355 of the Civil Code was amended by giving both spouses the possibility to keep their surnames. According to the henceforth relevant Article 1616 § 2 (replaced in 1997 by Article 1617 § 1 of the Civil Code), a child would either obtain the surname of the father or the mother. Currently, if the parents cannot agree, the competent family court will refer the right to determination to one parent.
A compound name for the child was not provided for by the new Act.
II. Proceedings before the domestic courts
The first two applicants married in 1990 and decided to keep their birth names. After the birth of their children, they applied to the Hamburg Registry Office (Standesamt) in order to obtain for their children the surnames “Freiherr von Rehlingen-Prinz” and “Freiin von Rehlingen-Prinz”. Their applications were to no avail.
On 23 March 1994, they applied again to the Hamburg Registry Office in order to be considered for the period indicated by the Federal Constitutional Court in its judgment of 1991 during which compound names were provisionally permitted. Moreover, they argued that the current law as provided for by the Act on the Regulation of the Law of Family Names was unconstitutional in as far as it precluded compound names for children. Their application was dismissed by the Hamburg Registry Office which found that both children had obtained the last name “Prinz” in accordance with the then applicable Article 1355 § 2 of the German Civil Code.
On 28 June 1994, the Hamburg District Court dismissed the first two applicants’ claim to order the Hamburg Registry Office to register their children with compound names. It held that, both under the present law and under the law that had been in force before the judgment of the Federal Constitutional Court in 1991, their children were not entitled to obtain compound names. The District Court did not find any reasons for the unconstitutionality of the present law, nor had any concerns been raised by academics and legal scholars in that connection. In its judgment of 1991, the Federal Constitutional Court had indicated a provisional period in which compound names could be obtained only with respect to those marriages that were concluded after the date of the publication of the judgment.
The District Court found that that judgment was plain and unambiguous in this respect, and the applicants were clearly not concerned by the provisional period as they had married the year before the judgment was published.
On 21 September 1994, the Hamburg Regional Court dismissed the first two applicants’ appeal against the decision of the District Court of 28 June 1994. The first two applicants’ further appeal was dismissed by the Hanseatic Court of Appeal on 18 September 1995. The court found that Article 1616 § 2 of the Civil Code was constitutional and neither violated the right to a family (Article 6 § 1 of the Basic Law) nor the right to educate one’s own children (Article 6 § 2 of the Basic Law). A positive obligation on the legislator to provide the possibility for children to obtain a compound name could not be derived from the Federal Constitutional Court’s judgment of 1991. On the contrary, the Federal Constitutional Court had granted the legislator a wide margin of appreciation when setting the law on family names, and the provisional period in which compound names could be obtained had only been introduced in order to allow the legislator the choice of all existing options within that margin.
The first applicant lodged a constitutional complaint against the Act on the Regulation of the Law of Family Names in 1995. On 1 August 2000, the Federal Constitutional Court refused to admit that complaint.
On 7 February 2002, the Federal Constitutional Court refused to admit the constitutional complaint (1 BvR 2300/95) of all four applicants lodged in 1995 against the above decisions by referring to a leading judgment of 30 January 2002 (see “Relevant domestic law and practice” below) in which the constitutionality of Article 1617 of the Civil Code had been confirmed.
The applicant children’s younger siblings bear a compound name, but are neither born, nor registered in the birth register, in Germany.
B. Relevant domestic law and practice
I. Relevant domestic law
Article 1355 of the Civil Code provides:
Ҥ 1 Spouses should designate a common family name (marital name). The spouses shall use the marital name which they have designated. If the spouses do not designate a family name, they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage.
§ 2 By declaration to the registrar, the spouses may designate, as their marital name, the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name. (...)
§ 4 A spouse whose name does not become the marital name may, by declaration to the registrar, attach, before or after the marital name, his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name. This shall not apply if the marital name consists of more than one name. If the name of one of the spouses consists of more than one name, only one of these names may be attached. (...)”
Article 1617 of the Civil Code provides:
Ҥ 1 If the parents do not have a marital name but if they have joint parental responsibility, they shall, by declaration to the registrar, designate the surname that the father or the mother has at the time of the declaration as the birth name of the child. (...)
§ 2 If parents make no designation within one month of the birth of the child, the family court shall transfer the right of designation to one of the parents. Subsection (1) applies mutatis mutandis. The court may impose a time-limit on the parent for the exercise of the right of designation. If, after the time-limit has expired, the right of designation had not been exercised, the child shall be given the name of the parent to whom the right of designation was transferred.”
Under German law, authentic compound names are permitted only in very specific circumstances. For example, compound names may be retained if they were used prior to state regulation of the law governing names. Moreover, pursuant to the Act on Change of Family Names and Forenames, compound names may come into being when persons with surnames which are highly common in Germany such as “Schmidt” or “Müller” (so-called Sammelnamen) add another name to render their family name easier to distinguish. Compound names created in this way may be passed on to children.
II. Case-law of the Federal Constitutional Court
In a leading judgment of 30 January 2002, the Federal Constitutional Court held, by six votes to two, the former version of Article 1616 § 2 of the German Civil Code (which is identical to Article 1617 § 1 of the current version of the Civil Code) to be constitutional. In particular, the Federal Constitutional Court found that the provision neither constituted a violation of the right to a family (Article 6 § 1 of the Basic Law), the right to educate one’s own children (Article 6 § 2 of the Basic Law) nor the children’s right to protection of their personality rights as guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law.
The Federal Constitutional Court considered that, once children would be allowed to obtain compound names, the number of surnames could exponentiate with each future generation. The next generation would already be able to obtain a surname comprised of four names. Such growing “chains of surnames” would not only be impracticable, they would also be to the detriment of future generations whose surnames would be at risk of losing their function as a means of identification. The Basic Law would not prohibit the legislator from reducing the number of possible surnames to avoid such “name chains” in order to secure the function of the surnames of future generations.
The Federal Constitutional Court considered that a different way of avoiding “name chains” would have been to allow compound names, but to restrict the number of surnames to two. This method, however, would prevent parents who already bear a compound name to give their children a compound name comprised of both parents’ surnames, or obtain such a surname themselves. A person with a compound name could no longer keep his or her surname after marriage and add the surname of his or her partner, as currently provided for by Article 1355 of the Civil Code. Therefore, the introduction of an option to let children obtain compound names would at the same time reduce the choice of surnames for those who already bear a compound name. Such a situation, in which one fundamental right restricts another, would consequently require a balancing of interests, which the legislator had done when introducing the former version of Article 1616 § 2 of the German Civil Code (now Article 1617 § 1). The Federal Constitutional Court stated that the legislator had had several options to balance the above interests. The option which the legislator chose was thereby neither required nor prohibited by the Basic Law.
Lastly, the Federal Constitutional Court found that the former version of Article 1616 § 2 of the German Civil Code did not violate the prohibition of discrimination on grounds of sex as guaranteed in Article 3 § 2 of the Basic Law. If each spouse kept his or her surname after marriage, married couples could choose one of their surnames as the surname for their children. Article 1616 § 2 of the German Civil Code reduced the possible options to give their children a surname, but this concerned spouses of both sexes alike.
The fact that married couples with different surnames were in practice more likely to choose the husband’s surname for their children was not considered to suggest a different finding. Even though this could possibly indicate a widespread affirmation of traditional marriage patterns, Article 3 § 2 of the Basic Law could not be interpreted as containing a positive obligation on the State to introduce a parents’ right to choose a compound name for their children. In any case, such a regulation had only minor effects on the State’s positive obligation to secure equality of the sexes as contained in the second sentence of Article 3 § 2 of the Basic Law.
That children could still obtain a compound name under certain circumstances, particularly in cases in which one parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name. In both instances, children were only allowed to obtain either the surname of the mother or the father.
COMPLAINTS
The applicants complained under Articles 8 and 14 of the Convention about Article 1617 § 1 of the Civil Code and the domestic court decisions confirming the constitutionality of that provision. They claimed that Article 1617 § 1 of the Civil Code was an unlawful restriction on the parents’ right to give their children a name, and also deprived children of the possibility to obtain a compound name and, therefore, refusing their application to register a compound name for the third and fourth applicants.
THE LAW
1. The applicants complained under Article 8 of the Convention that the parents’ right to designate a surname is restricted and that the possibility of the children taking a compound name is ruled out. Article 8 of the Convention provides:
“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.”
The Government contested that argument. In their submissions, the legislator’s stipulation that parents may not give their children compound surnames composed of their respective surnames did not constitute an interference with Article 8, since that provision does not establish any right for parents to pass on their birth names to their children as a compound name. There was no common human rights standard in the Contracting States either specifically in respect of a child’s family name or generally within the field of law governing names. The law in Europe governing children’s names was extremely varied in nature, and was influenced by objectives, social developments and traditions which differ widely.
As different States had extremely diverse systems of regulation, they enjoyed a wide margin of appreciation in this respect. The different models range from simply adopting the name of the father as the child’s surname (Turkey) to the possibility of the person with parental responsibility freely designating the name (Denmark and Norway). The Government submitted an expert opinion by the President of the German Section of the International Commission on Civil Status entitled “On the law relating to the naming of children in Europe” in this connection. Under German law, compound names were permitted only in very specific exceptional circumstances. Nothing could be derived from these exceptional circumstances that would apply to the “normal” case of a family with children. Given the situation as a whole, a fair balance was established under the German law governing family names between individuals’ interests and those of the general public.
The Government submitted that the applicant children did not suffer any disadvantages in their everyday lives as they had been able to use their compound names within their social sphere and would continue to do so. They would also later be able to have these compound names entered in their passports and identity cards as pseudonyms or professional names, as well as use them vis-à-vis the registration authorities. The fact that the applicant children’s younger siblings bore a compound name did not alter the situation, because they were neither born nor registered in the birth register in Germany.
The applicants maintained that, while the applicant parents decided to keep their last names for professional reasons, the applicant children had an interest in obtaining a family name which indicated filiation to both parents and which served as a symbol of family solidarity. The applicant children had been using a compound name in their everyday lives for ten and twelve years respectively, that is, their school certificates, club membership cards and insurance papers have been issued using compound names. They had meanwhile identified with their compound names, and their younger siblings had obtained the same compound name. The use of their compound names in everyday life did not, contrary to the legislator’s predicted consequences, create any practical problems. Neither did the provisional period during which compound names were permissible under certain circumstances prove that practical problems would generally arise. The applicants did not agree that compound names merely serve as a “gift for one generation”. They found that the present law entirely eliminated the last name of one parent for the next generation. The present law was a more severe interference with fundamental rights than the impossibility for future generation parents to pass at least parts of their last names to their children, and therefore disproportionate. Moreover, that interference lacked a legitimate and convincing reason.
The applicants further submitted that other European countries such as Spain, Portugal and Greece recognise compound names in their legal systems. From the time when the applicant children were born until the present application was lodged, four Ministers of Justice at the federal level and two Ministers of Justice in the Land Hamburg had compound names, which made the fears of the German legislator rather specious. If the applicant children were able to have compound names entered in their passports and identity cards as pseudonyms or professional names in the future, there was no convincing reason why they should not be able to officially bear that compound name in the first place.
The Court notes that Article 8 of the Convention does not contain any explicit provisions on names (see G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97). As a means of personal identification and of linking to a family, a person’s name nonetheless concerns his or her private and family life (see Ünal Tekeli v. Turkey, no. 29865/96, § 35, ECHR 2004‑X (extracts)). The fact that society and the State have an interest in regulating the use of names does not exclude this, since these public-law aspects are compatible with private life conceived of as including, to a certain degree, the right to establish and develop relationships with other human beings
(see Burghartz v. Switzerland, judgment of 25 November 1994, Series A no. 299-B, p. 61, § 24).
Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private and family life. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The Court has held that not all regulation of names will necessarily constitute an interference. While it is true that an obligation to change one’s name would be regarded as an interference, the refusal to allow an individual to adopt a new name cannot necessarily be considered an interference (see Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299‑B, pp. 60-61, § 38; Johansson v. Finland, no. 10163/02, § 29, ECHR 2007‑...). The applicable principles are nonetheless similar. In particular, in both contexts regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007-...).
In the present case, the Court finds that the principal issue is whether in the special circumstances of the case the German authorities struck a fair balance between the competing public and private interests involved when refusing registration of the compound names. The Court’s task is not to substitute itself for the competent German authorities or legislator in determining the most appropriate policy for the attribution of family names to children in Germany, but rather to review under the Convention the grounds adduced in respect of the decisions taken in the present case
(see, mutatis mutandis, Stjerna, cited above, p. 61, § 39).
The margin of appreciation which the State authorities enjoy in the sphere under consideration is wide (see, inter alia, Stjerna, cited above, ibid. and Johansson, cited above, § 31), having particular regard to the fact that, as demonstrated by the expert opinion by the President of the German Section of the International Commission on Civil Status submitted by the Government, there appears to be little common ground amongst Convention States in this area.
Having regard to the above considerations, the Court will examine whether the respondent State’s refusal to register the chosen names in the instant case raises an issue of failure to respect the applicants’ private and family life. In weighing up the different interests at stake, consideration should be given, on the one hand, to the applicants’ interest to allow the children officially to use both parents’ surnames and, on the other hand, the public interest in regulating the choice of names.
With regard to the public interest, the Court has accepted that legal restrictions on changing one’s name may be justified in the public interest; for example, in order to ensure accurate population registration or to safeguard the means of personal identification (see Stjerna, cited above, p. 61, § 39). It may also be justified in the public interest to restrict the attribution of compound surnames. As the Commission found in the case of Fornaciarini, Gianettoni and Fornaciarini v. Switzerland (no. 22940/93, Commission decision of 12 April 1996), the refusal to register a compound name composed of both parents’ surnames for a child born out of wedlock did not constitute a lack of respect for the applicant’s private life within the meaning of Article 8, having particular regard to the fact that the applicant had not established that he suffered any inconveniences by being prevented from bearing both parents’ names.
Turning to the reasons adduced by the German authorities for refusing registration of compound surnames, the Court notes the leading judgment of 30 January 2002 of the Federal Constitutional Court which held that the applicable law on compound names was constitutional, in particular because the general possibility to obtain compound names would lead to growing “chains of surnames” which would not only be impracticable, but also to the detriment of future generations whose surnames would be at risk of losing their function as a means of identification. The situation in which one fundamental right restricts another would consequently require a balancing of interests, and the option which the legislator chose had neither been required nor prohibited by the German constitution. In the light of the wide margin of appreciation left to the domestic authorities in such matters, the Court finds that the German legislator’s general decision in this connection had neither been incomprehensible nor unreasonable.
Having regard to the specific circumstances of the case, the Court notes that the applicant children had been able to use their compound names within their social sphere and would continue to do so. The fact that the use of their compound names in everyday life did not create any practical problems does however not, in the Court’s view, contradict the legislator’s general decision to restrict the official passing on of compound names to children in order to avoid disadvantages for future generations.
In view of these circumstances the Court finds that the refusal by the German authorities to register the compound surnames did not constitute a lack of respect for the applicants’ private and family life under Article 8 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
2. The applicants were also of the opinion that German law violates the prohibition of discrimination as laid down in Article 14 of the Convention. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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.”
The Government considered the complaint to be manifestly ill-founded as Article 1617 of the Civil Code was worded neutrally in terms of gender. No unequal treatment based on sex had occurred in the present matter, because each parent had an equal chance of being in a situation in which he or she was unable to pass his or her name on to their children.
The applicants submitted that Article 1617 §§ 1 and 2 of the Civil Code violates Article 14 taken in conjunction with Article 8 of the Convention because the provision ultimately deprives one parent of the possibility to let his or her children obtain his or her surname. In practice this would most often be to the wife’s disadvantage and therefore constitute discrimination on grounds of sex. Moreover, if the family courts exercised the determination in accordance with Article 1617 § 2 of the Civil Code without having been given any criteria by the legislator, it was likely that the judges would follow traditional and conventional beliefs.
In cases arising from individual applications it is, however, not the Court’s task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances (Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003‑VIII (extracts)). In the present case, the applicant parents had to choose to employ the husband’s or the wife’s name as the family name, but they were free to make their choice. The Court considers that this cannot be considered as a difference in treatment which is discriminatory within the meaning of Article 14 of the Convention.
It follows that the remainder of the application is also manifestly
ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy