Carlos Garcia Avello v Belgian State.

• Jurisdiction: European Union
• Celex Number: 62002CC0148
• ECLI: ECLI:EU:C:2003:311
• Docket Number: C-148/02
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 22 May 2003

OPINION OF ADVOCATE GENERAL
JACOBS
delivered on 22 May 2003(1)


Case C-148/02

Carlos Garcia Avello
v
État belge

()

1. This case concerns the surname borne by children born in Belgium to a married couple resident there. The father is a Spanish national, the mother Belgian, and the children have dual nationality. 2. On registration of their births in Belgium, the children were given the double surname borne by their father ─ Garcia Avello ─ composed in accordance with Spanish law and custom of the first element of his own father's surname and the first element of his mother's surname. 3. The parents subsequently applied to the Belgian authorities to have the children's surname changed to Garcia Weber so that it reflected the Spanish pattern and comprised the first element of their father's surname, followed by their mother's (maiden) surname. That application was refused as contrary to Belgian practice. 4. The Belgian Conseil d'État (Council of State) now wishes to know whether such a refusal might be precluded by principles of Community law such as those relating to citizenship of the European Union and freedom of movement for citizens. Personal naming systems 5. In Europe, people generally bear names of two kinds. (2) There are what I shall call given names, which are seen (however common they may be) as a personal, intimate and individual identification, and there are surnames (I use the term in a broad sense), which almost always identify a person by reference to his or her family or lineage and are in that connection often viewed as an essential part of an inalienable birthright. Yet beyond that basic categorisation, there is considerable variety. 6. The very ‘naming of names' reveals differences and difficulties. In Dutch, French and German, for example, the general word for ‘name' designates the surname, the given name being referred to as a forename. Yet that seems inappropriate for Hungarians, who are expected shortly to become citizens of the Union and who place the surname before the given name. (3) In Italian and Spanish (and to a large extent in English), the general word for ‘name' is reserved for the given name, a different word being used for the surname. To refer to the surname as the ‘family name' may be misleading since not all members of the same family necessarily bear the same surname. For example, in Iceland (not a Member State of the Union but within the EEA), most people are identified by a given name and an indication that they are the son or daughter of their father (or mother), similarly identified by given name alone. (4) Nor however is ‘patronymic' necessarily accurate: a surname may be a ‘metronymic', and it is relevant in the present case that in Spain children do not bear the same surname as either of their parents but that each generation forges a new surname incorporating parts of each parent's surname. 7. In order to appreciate the significance of the present case, it may be helpful to consider briefly the range of rules in the Member States governing the ways in which surnames are determined and may be changed. For the sake of simplicity, I shall look essentially at the type of situation involved in the main proceedings, that of the surname given to a child born to a married couple. In other cases ─ for example where the parents are not married at the time of the child's birth, where a parent's surname is later changed through marriage, divorce and/or remarriage, or where the child is adopted ─ the position may differ. Applicable law 8. In the event of a conflict between legal systems governing a person's surname, most Member States give priority to the law of his or her nationality as the law governing personal status. Denmark and Finland however apply their own law to persons domiciled in their territory; in Sweden, Swedish law applies to all Nordic citizens domiciled there, the law of the nationality to all other nationals. (5) In Ireland and the United Kingdom, there is no specific rule governing a conflict of laws; essentially, there is little need for such a rule since the laws of those Member States are sufficiently flexible to allow the attribution or use of a name formed in accordance with any system. 9. In Belgium, where the person in question has more than one nationality, one of which is Belgian, then Belgian law prevails. Spanish law adopts the same solution, mutatis mutandis , (6) so that in the present case Belgian law would prevail in Belgium and Spanish law in Spain. Determination of the surname given to a child 10. In most Member States, children in fact bear the same surname as their father, although the degree to which that is dictated by law rather than tradition varies. 11. In Italy, it appears that a child born to a married couple must always bear the father's surname, although that rule derives from custom rather than from enacted law, and legislation has been proposed to allow greater flexibility. In most other Member States, a degree of choice is available to the parents, though the choice is generally restricted to the parents' own surnames. 12. One rule commonly found is essentially that, if the parents use the same surname (usually that of one or other spouse), then the child will bear that surname but that otherwise they may choose either the father's or the mother's surname for the child. Another rule in several Member States is that all children of a couple must bear the same surname, so that any choice is in fact available essentially for the eldest child alone. 13. The possibility of combining both parents' surnames in the child's surname is the subject of conflicting rules in different Member States. In some, it is specifically allowed or even imposed, in others specifically prohibited. In Denmark, it appears to be possible to hyphenate the two surnames but not to combine them without a hyphen. (7) The rule in Portugal appears to be considerably more flexible: a child may bear a surname composed of up to four elements chosen among the surnames borne by either or both parents or, in effect, by one or more grandparents, although it seems that surnames are in fact generally formed along lines which mirror the Spanish system (literally, in that the order of the paternal and maternal elements is usually reversed). 14. The greatest liberty of choice within the European Union seems to be in the United Kingdom, where (as in many other common-law jurisdictions worldwide) there is essentially no legal rule determining the surname to be borne by a child. Consequently, on registration of a birth, the parents may in theory choose any surname they wish even if, as a matter of social reality, the father's surname overwhelmingly prevails. 15. In Belgium the rule established in Article 335 of the Civil Code is at present essentially that a child bears only the father's surname unless either paternity is not established or the father is married to a woman other than the mother, in both of which cases the child bears the mother's surname. 16. A number of proposed changes to the law have been placed before the Belgian federal legislature. If adopted, those changes would allow greater freedom in the choice of surnames, possibly including the possibility of following principles similar to those used in Spain. However, at the hearing the representative of the Belgian Government pointed out that those proposals were made on the initiative of individual legislators rather than by the government, and that their examination had been postponed sine die in the light of forthcoming parliamentary elections. 17. In Spain, the relevant rules are to be found essentially in Articles 108 and 109 of the Civil Code. As I have already explained, the general and traditional rule is that each child born to a married couple bears a double surname, composed of the first element of the father's surname followed by the first element of the mother's surname. 18. In 1999, Article 109 was amended to allow parents the possibility to choose, before the birth of their first child, to give all their children a surname comprising those same elements but in reverse order, so that the first element of the mother's surname comes first. Change of surname 19. As with the determination of surnames, there is wide variation between the Member States as regards the circumstances in which a person may acquire or use a surname other than that which appears on his or her birth record. For the most part, the connection between an individual and his or her surname is regarded as lifelong, both in law and as a matter of social practice (with the exception of changes occurring on the creation and/or dissolution of marriage). Exceptions to the general principle are however possible. 20. Again, the most liberal position is to be found in the United Kingdom, where it is possible either simply to use a different name in daily life, without going through any formality whatever, or to change one's name officially by deed poll or statutory declaration, a process which in general requires no authorisation. In most other Member States, however, an official change of name must be approved by the authorities and some good cause for the change must be shown. 21. In Belgium, a change of surname is authorised only exceptionally and upon proof that there are serious grounds for the change. (8) Such grounds may include the fact that the current surname gives rise to ridicule or is a foreign name which makes it more difficult for the holder to integrate into Belgian society. One specific ground considered to be serious is where children of the same parents bear different surnames, one determined by Spanish law and the other by Belgian law. In Spain too,...