Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Rosas
• ECLI: ECLI:EU:C:2010:608
• Date: 14 October 2010
• Docket Number: C-208/09
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 14 October 2010 (1)

Case C‑208/09

Ilonka Sayn-Wittgenstein

(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

(European citizenship – Freedom to move and reside within the Member States – Refusal by a Member State having abolished the nobility to register one of its nationals under a surname, acquired in another Member State, containing a title of nobility)

1. Following the First World War, both Austria and Germany became republics, abolishing the nobility and all the privileges and titles pertaining thereto. For Austrian nationals, it has been unlawful since then, as a matter of constitutional law, to bear any title of nobility, a prohibition which extends to the use of such particles as ‘von’ or ‘zu’ as part of a surname. In Germany, however, a different approach was taken: existing titles, although they could no longer be borne as such, became part of the family surname, transmitted to all children, subject only to variations according to the sex of the child where an element has both a masculine and a feminine form – for example Fürst (Prince) and Fürstin (Princess).

2. The present case concerns an Austrian national adopted, as an adult, in Germany by a German national (2) whose surname included such a former title of nobility. That same surname, in the feminine form, was then entered for her in the registers of civil status (3) in Austria. Her challenge to an administrative decision, taken some 15 years later, to correct that registration by removing the elements of the surname indicating nobility is now before the Verwaltungsgerichtshof (Administrative Court). That court, having regard to the judgment in Grunkin and Paul, (4) wishes to know whether the Austrian legislation is compatible with Article 18 EC (now Article 21 TFEU) on freedom of movement and residence for citizens of the Union. Other Treaty provisions may also be relevant.

Legal background

The European Convention on Human Rights (5)

3. 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.’

4. In a number of cases, in particular Burghartz and Stjerna, (6) the European Court of Human Rights has held that, whilst Article 8 of the convention does not explicitly refer to names, an individual’s name does concern his or her private and family life since it constitutes a means of personal identification and a link to a family. It has also stressed the importance of national language considerations in the field of personal names and has accepted that the imposition of linguistic rules flowing from State policy may be justified. (7)

European Union law

5. The first paragraph of Article 12 EC (now the first paragraph of Article 18 TFEU) provides as follows:

‘Within the scope of application of this Treaty [… of the Treaties (8)], and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

6. Article 17 EC (now Article 20 TFEU) 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 [… shall be additional to] 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 [… enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

…]’

7. Under Article 18(1) EC (now Article 21(1) TFEU):

‘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 [… in the Treaties] and by the measures adopted to give it [… to give them] effect.’

8. Article 43 EC (now Article 49 TFEU) and Article 49 EC (now Article 56 TFEU) prohibit, respectively, ‘restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State’ and ‘restrictions on freedom to provide services within the Community [Union] … in respect of nationals of Member States who are established in a State of the Community [Member State] other than that of the person for whom the services are intended.’

9. Article 7 of the Charter of Fundamental Rights of the European Union (9) provides:

‘Everyone has the right to respect for his or her private and family life, home and communications.’

10. The explanatory note to that article (10) makes it clear that the rights guaranteed correspond to those in Article 8 of the European Convention on Human Rights and that the limitations which may legitimately be imposed on them are those allowed by Article 8(2) of that convention.

11. The Court of Justice has had occasion to rule on questions concerning discrepancies between surnames given to the same person in civil status registers of different Member States in Konstantinidis, (11)García Avello (12) and Grunkin and Paul. (13) The salient aspects of that case-law may be summarised as follows. (14)

12. Rules governing a person’s surname at present fall within the competence of the Member States. When exercising that competence, the Member States must none the less comply with European Union (‘EU’) law unless what is involved is an internal situation which has no link with that law. A link exists where nationals of one Member State are lawfully resident in another Member State. In such circumstances, they can in principle rely, as regards the Member State of their nationality, on their Treaty rights, such as the right not to be discriminated against on grounds of nationality, the right to move and reside freely within the territory of the Member States and the right of freedom of establishment.

13. A discrepancy in surnames is liable to cause serious inconvenience at both professional and private levels. There may be difficulties in benefiting in one Member State from the legal effects of diplomas or documents drawn up in the surname recognised in another Member State. Many everyday dealings, in both the public and the private spheres, require proof of identity, often provided by a passport. If the passport issued by the Member State of nationality shows a name different from that shown on a birth certificate issued in another Member State, if the surname used in a specific situation does not correspond to that on the document submitted as proof of a person’s identity, or if the surname in two documents submitted together is not the same, doubts are likely to arise as to the person’s identity, the authenticity of the documents submitted or the veracity of their content, and there may be suspicions of misrepresentation.

14. An obstacle to freedom of movement resulting from such serious inconvenience can be justified only if it is based on objective considerations and is proportionate to the legitimate aim pursued. Considerations of administrative convenience cannot suffice for that purpose. However, specific reasons of public policy might be capable of doing so.

Austrian law

15. In 1919 the Law on the abolition of the nobility, (15) which has constitutional status in accordance with Article 149(1) of the Federal Constitutional Law, (16) abolished the nobility, secular orders of knighthood and certain other titles and dignities, and prohibited the bearing of the corresponding styles. Under Paragraph 1 of the implementing provisions adopted by the competent ministers, (17) the abolition applies to all Austrian citizens, regardless of where the relevant privileges were acquired. Paragraph 2 indicates that the prohibition covers, inter alia, the right to bear the particle ‘von’ as part of the name and the right to bear any title of noble rank, such as ‘Ritter’ (knight), ‘Freiherr’ (baron), ‘Graf’ (count), ‘Fürst’ (prince), ‘Herzog’ (duke) or other corresponding indications of status, whether Austrian or foreign. Under Paragraph 5, various penalties may be imposed for contravening the prohibition.

16. According to information provided by the Austrian Government, that prohibition has been applied by the courts with certain adjustments where those bearing a German surname including a former German mark of nobility were concerned. Where a German citizen bore such a surname and acquired Austrian nationality, that name could not be reinterpreted as including a title of nobility and could not be changed. Moreover, an Austrian woman acquiring such a name by virtue of marriage to a German citizen was entitled to bear the name in its entirety; however, she must bear exactly the same surname as her husband, and not a feminine form of the name. (18)

17. Under Paragraph 9(1) of the Federal Law on international private law, (19) the personal status of natural persons is determined by the law of their nationality. Under Paragraph 13(1), the name which they bear is regulated by their personal status, regardless of the basis on which the name was acquired. Paragraph 26 provides that conditions governing adoption are regulated by the personal status of each adopting party and of the child, while its ‘effects’ are regulated, when there is a single adopting party, by the personal status of that party.

18. According to the Austrian Government’s submissions in the present case and the academic...