AS TO THE ADMISSIBILITY OF
Application No. 25080/94
by Elisabeth WOLF
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 15 June 1994 by
Elisabeth WOLF against Austria and registered on 5 September 1994 under
file No. 25080/94;
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, born in 1957, is an Austrian national residing in
Vienna. In the proceedings before the Commission she is represented by
Mrs. B. Weirather, a lawyer practising in Innsbruck.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 25 May 1992 the applicant, whose maiden name was Loibner, was
married to Mr. Wolf. 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.
Accordingly, the applicant is now called Wolf.
On 28 February 1994 the Constitutional Court (Verfassungs-
gerichtshof), referring to its decision of 18 December 1993, in which
it had already ruled on the constitutionality of S. 93 of the Civil
Code, rejected the applicant's complaint.
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 intended 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 did not agree on their common
family name. She invokes Article 8 alone and in combination with
Article 14, as well as Article 12 in combination with Article 14 and
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) alone and in combination with Article 14
(Art. 8+14), as well as Article 12 in combination with Article 14 and
Article 5 of Protocol No. 7 (Art. 12+14+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 intended 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 pp. 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