AS TO THE ADMISSIBILITY OF
Application No. 24260/94
by Maria SCHEIBELHOFER-KÖSTNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 May 1994 by
Maria SCHEIBELHOFER-KÖSTNER against Austria and registered on
3 June 1994 under file No. 24260/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national, residing in Vienna. In the
proceedings before the Commission she is represented by
Mrs. Ch. Kolbitsch, a lawyer practising in Vienna.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 16 October 1992 the applicant, whose maiden name was Köstner,
got married to Mr. Scheibelhofer. Both, she and her husband wanted to
keep their former family names. However, S. 93 para. 1 of the Austrian
Civil Code (Allgemeines Bürgerliches Gesetzbuch), in the version
applicable at the time, provided that spouses had to assume one of
their names as their common family name. In case they did not provide
otherwise, the husband's family name was to become the common family
name. The applicant, making use of the possibility to add her former
name with a hyphen, is now called Scheibelhofer-Köstner.
On 18 December 1993 the Constitutional Court dismissed the
applicant's complaint, in which she had alleged that S. 93 of the Civil
Code was unconstitutional as being discriminatory against women. The
Court found that S. 93 of the Civil Code had to be seen in its context.
It provided that the spouses could choose either the husband's or the
wife's family name as their common name. The spouse who gave up his or
her name could add his or her former name to the common family name.
The rule that the husband's name became the family name if the spouses
did not provide otherwise did not discriminate against women but had
regard to the fact that this was the usual choice. The applicant had
not claimed that habits in this respect had changed to an extent which
would make this provision unobjective.
B. Relevant domestic law
Civil Code
S. 93 para. 1 of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch), in the version which was applicable when the applicant
concluded her marriage, provided that the spouses had to assume a
common family name, i.e. the name of one of the spouses which they had,
before or at the time of the marriage, declared that they intended to
assume in a public document or a document certified by a notary public.
In case the spouses did not make such a declaration the husband's name
became the common family name.
On 1 May 1995 an amendment of the Civil Code entered into force
(Federal Law Gazette Nr. 1995/25). S. 93 para. 1 remained unchanged.
However, S. 93 para. 3 states that the spouse, who would have to give
up her name in accordance with paragraph 1, may, before or at the time
of the marriage, in a public document or a document certified by a
notary public, declare that she wants to keep her name. In this case
both spouses keep their former family names.
Law on Civil Status
Also on 1 May 1995 an amendment to the Law on Civil Status
(Personenstandsgesetz) entered into force (Federal Law Gazette
Nr. 1995/25). S. 72a para. 4 provides that persons who had to assume
their spouses' family name upon concluding a marriage before
1 May 1995, may declare that they intend to assume their former family
name again.
COMPLAINTS
The applicant complains that S. 93 of the Austrian Civil Code is
discriminatory in that she had to assume her husband's name. She
submits in particular that there is no objective reason why the wife
should give up her name if the spouses do not agree on their common
family name. If the legislature insisted on a common family name for
spouses, it was bound to treat husband and wife on an equal basis. She
invokes Article 8 of the Convention alone and in combination with
Article 14, as well as Article 5 of Protocol No. 7.
THE LAW
The applicant complains that S. 93 of the Austrian Civil Code is
discriminatory in that she had to assume her husband's name. She
invokes Article 8 (Art. 8) of the Convention alone and in combination
with Article 14 (Art. 8+14), as well as Article 5 of Protocol No. 7
(Art. 8+P7-5).
Before examining the applicant's complaint, the Commission has
to consider whether the applicant can still claim to be a victim of a
violation of the Convention rights invoked by her.
Article 25 para. 1 (Art. 25-1) of the Convention is worded as
follows:
"The Commission may receive petitions addressed to the Secretary
General of the Council of Europe from any person, non-
governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties
of the rights set forth in this Convention, ... ".
The Commission notes that the relevant domestic law has changed
since the introduction of the application. Under S. 93 of the Austrian
Civil Code in the version which entered into force on 1 May 1995, both
spouses retain their former names, if the wife declares before or at
the time of the marriage that she wants to keep her name. Moreover,
this amendment was given retroactive effect in that persons who had to
assume their spouses' family name upon concluding a marriage before
1 May 1995, may declare that they intend to assume their former family
name again in accordance with S. 72a para. 4 of the Law on Civil
Status.
Having regard to the amendment of the Austrian law, which enables
the applicant to assume her former family name, the Commission
considers that she can no longer claim to be a victim within the
meaning of Article 25 (Art. 25) of the Convention of a violation of
Article 8 (Art. 8) of the Convention alone or in combination with
Article 14 (Art. 8+14), or of Article 5 of Protocol No. 7 (Art. 8+P7-5)
(see mutatis mutandis No. 14723/89, Dec. 9.7.1992, D.R. 73 p 81, 94).
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy