Carlos Garcia Avello v Belgian State.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Cunha Rodrigues
• ECLI: ECLI:EU:C:2003:539
• Celex Number: 62002CJ0148
• Date: 02 October 2003
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-148/02

Case C-148/02


Carlos Garcia Avello
v
État belge


(Reference for a preliminary ruling from the Conseil d'État (Belgium))

«(Citizenship of the European Union – Handing down of surnames – Children of nationals of Member States – Dual nationality)»

Opinion of Advocate General Jacobs delivered on 22 May 2003

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Judgment of the Court (Full Court), 2 October 2003

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Summary of the Judgment

1..

Citizenship of the European Union – Treaty provisions – Scope ratione personae – National of one Member State lawfully residing on the territory of another Member State – Whether included – Effect – Benefit of rights attaching to the status of citizen of the Union – Persons concerned also nationals of the State of residence – Not relevant – Discrimination on grounds of nationality in regard to the rules governing the surname – Not permissible

(Arts 12 EC, 17 EC and 18 EC)

2..

Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Minor children resident in a Member State and having dual nationality of that State and of another Member State – Application for a change of surname to enable those minor children to bear the surname to which they are entitled in the second Member State – Refusal of the administrative authority to grant that application – Not permissible

(Arts 12 EC and 17 EC)

1.

Nationals of one Member State who are lawfully resident in the territory of another Member State may rely on the right set out in Article 12 EC not to suffer discrimination on grounds of nationality in regard to the rules governing their surname. Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those nationals who find themselves in the same situation to enjoy, within the scope ratione materiae of the EC Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. The situations falling within the scope ratione materiae of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC. Although, as Community law stands at present, the rules governing a person's surname are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with Community law, in particular with the Treaty provisions on the freedom of every citizen of the Union to move and reside in the territory of the Member States. Citizenship of the Union, established by Article 17 EC, is not, however, intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law. Such a link with Community law does, however, exist in regard to persons in a situation such as that of a national of one Member State who is lawfully resident in the territory of another Member State. That conclusion cannot be invalidated by the fact that the persons concerned also have the nationality of the Member State in which they have been resident since their birth and which, according to the authorities of that State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty. see paras 22-29

2.

Articles 12 EC and 17 EC must be construed as precluding the administrative authority of a Member State from refusing to grant an application for a change of surname made on behalf of minor children resident in that State and having dual nationality of that State and of another Member State, in the case where the purpose of that application is to enable those children to bear the surname to which they are entitled according to the law and tradition of the second Member State. First, with regard to the principle of the immutability of surnames as a means designed to prevent risks of confusion as to identity or parentage of persons, although that principle undoubtedly helps to facilitate recognition of the identity of persons and their parentage, it is still not indispensable to the point that it could not adapt itself to a practice of allowing children who are nationals of one Member State and who also hold the nationality of another Member State to take a surname which is composed of elements other than those provided for by the law of the first Member State and which has, moreover, been entered in an official register of the second Member State. Furthermore, by reason in particular of the scale of migration within the Union, different national systems for the attribution of surnames coexist in the same Member State, with the result that parentage cannot necessarily be assessed within the social life of a Member State solely on the basis of the criterion of the system applicable to nationals of that latter State. In addition, far from creating confusion as to the parentage of the children, a system allowing elements of the surnames of the two parents to be handed down may, on the contrary, contribute to reinforcing recognition of that connection with the two parents. Second, with regard to the objective of integration pursued by the practice in issue, the practice in issue is, in view of the coexistence in the Member States of different systems for the attribution of surnames applicable to those there resident, neither necessary nor even appropriate for promoting the integration of the nationals of other Member States within their State of residence. see paras 42-43, 45, operative part

JUDGMENT OF THE COURT
2 October 2003 (1)

((Citizenship of the European Union – Handing down of surnames – Children of nationals of Member States – Dual nationality))

In Case C-148/02, REFERENCE to the Court under Article 234 EC by the Conseil d'État (Belgium) for a preliminary ruling in the proceedings pending before that court between Carlos Garcia Avello

and

État belge, on the interpretation of Articles 17 EC and 18 EC,

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas, Judges, Advocate General: F.G. Jacobs,
Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

─

Mr C. Garcia Avello, by P. Kileste, avocat,

─

the Belgian State, by A. Snoecx, acting as Agent, assisted by J. Bourtembourg, avocat,

─

the Danish Government, by J. Bering Liisberg, acting as Agent,

─

the Netherlands Government, by H.G. Sevenster, acting as Agent,

─

the Commission of the European Communities, by J.L. Iglesias Buhigues, C. O'Reilly and D. Martin, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Garcia Avello, represented by P. Kileste; of the Belgian State, represented by C. Molitor, avocat; of the Danish Government, represented by J. Molde, acting as Agent; of the Netherlands Government, represented by N.A.J. Bel, acting as Agent; and of the Commission, represented by J.L. Iglesias Buhigues, C. O'Reilly and D. Martin, at the hearing on 11 March 2003,

after hearing the Opinion of the Advocate General at the sitting on 22 May 2003,

gives the following

Judgment

1

By judgment of 21 December 2001, received at the Court on 24 April 2002, the Conseil d'État (Council of State) referred for a preliminary ruling under Article 234 EC a question on the interpretation of Articles 17 EC and 18 EC.

2

That question has arisen in a dispute between Mr C. Garcia Avello, acting as the legal representative of his children, and the Belgian State concerning an application to change his children's surname.

Legal framework

Community law

3

The first paragraph of Article 12 EC provides as follows: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

4

Article 17 EC provides:

1.

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and 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.

5

Article 18(1) EC is worded as follows: Every citizen of the Union shall have 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. National law and practice Belgian private international law

6

The third paragraph of Article 3 of the Belgian Civil Code provides: The laws governing personal status and capacity shall apply to Belgian nationals, even if they are resident outside Belgium.

7

That provision constitutes the basis on which Belgian courts apply the rule that personal status and capacity are determined by...