Jacques BELLEZIT, Université de Strasbourg
One of the main criticisms aimed at the European Union is that it gets involved intimately with matters which are, at least prima facie, outside of its specified competences, defined especially in Articles 3 to 6 of the TFEU.
Even if the principle of the attribution of competences is firmly laid into EU Law and recognized as legally binding in order for the EU to be really “based on the rule of Law” (Les Verts judgment), it has not prevented the Luxembourg Court from developing a large vision of its jurisdictional power over EU law, as well as a certain jealousy, laid down ab initio in the history of European construction (see Costa v ENEL).
The Court has gained influence beyond the textual boundaries of its judicial power, limited to ensure the observance of the law in “in the interpretation and application of the Treaties” (Article 19(1) TEU): originally limited to litigation over purely trading relationships, it deals with civil status and nationality matters, which are traditionally the preserve of sovereign States (see the second Nottebohm judgment).
The recent Bogendorff von Wolffersdorf judgement, issued by the European Court of Justice on June 2nd 2016 (C-438/14) is interesting, as previous intrusions of the CJEU among matters such as nationality (Rottmann) or civil status (Avello) on the behalf of the free movement of EU citizens (Article 20(2) TEU) had been criticized. The recent ruling seems to confirm that the Court has taken this criticism into account.
Mr Nabiel Peter Bogendorff von Wolffersdorff, a German national acquired British nationality in 2004, changing his name, in accordance with British law, into “Peter Mark Emanuel Graf von Wolffersdorff Freiherr von Bogendorff”. This British name, as well as the addition of the noble titles of “Graf” and “Freiherr” (“Earl” and “Baron” in English) were not recognized by the authorities of the town of Karlsruhe on the grounds of article 48 of the Law introducing the Civil Code (hereafter the “EGBGB”). The District Court of Karlsruhe, being seized by the applicant to issue an order to see his British name recognized by the city of Karlsruhe, asked the CJEU for a preliminary ruling on the interpretation of EU law on citizenship.
The main interest of this judgment is that the preliminary ruling deals with the question of Article 48 of the EGBGB, inserted into German domestic law after the CJEU judgement in Grunkin-Paul, in which German international private law norms dealing with names attribution (and especially refusing the use in Germany of the names of the two parents of a German national born in Denmark as a family name) were said to be contrary to freedom of movement (Art 21 TFEU – ex Article 18 TEC).
The Bogendorff von Wolffersdorff ruling states, in a nutshell, that “the authorities of a Member State are not bound to recognize the name of a citizen of that Member State when […] a refusal of recognition is, in that context, justified on public policy grounds, in that it is appropriate and necessary to ensure compliance with the principle that all citizens of that Member State are equal before the law.”
This new ruling does not only grant an “EU law assent” to the modification of German law following the Grunkin-Paul case, but also seems to testify that the Luxembourg Court has taken into account the criticisms of its legal activism into civil status of Member States: This case-law follows a similar ruling, Sayn-Wittgenstein, in which an Austrian citizen living in Germany, asking unsucessfully for the recognition of her German name “Fürstin von Sayn-Wittgenstein” (“Princess Sayn-Wittgenstein”) in Austria. In both cases, the CJEU ruled that Article 21 TFEU does not preclude national authorities from refusing the recognition of names including noble titles on public policy grounds (especially the principle of equality before the law).
The explanation of this fact is that the both Austrian and German legal systems, at the constitutional level, guarantee equality before the law by forbidding the use of noble titles in names, and the Luxembourg Court does not want to set in into opposition with Member States’ constitutional identities (paras 64 and 65 of the judgment).
Although the Court has already recognized the importance of human dignity in German constitutional law and constitutional identity, which could justify a restriction of the freedom of services (Omega judgment), it has skipped the opportunity to define in this case law, the notion of national constitutional identity as debated by scholars, even though the protection of constitutional identity is guaranteed by the Treaties (Article 4(2) TEU).
So the Bogdendorff von Wolffersdorff judgement has recognized that banning the use of noble titles, ranks and names falls within the scope of Member States’s constitutional identity. Thus, in accordance with the principle of subsidiarity, the Luxembourg Court, has no jurisdiction over this subject, letting domestic courts deal with those matters in accordance with the principle of proportionality (paras 78 and 79 of the judgment).
This ruling reinforces the different interpretation of Article 21 TFEU (ex Article 18 TEC) in different situations. On the one hand, this Article forbids, in some situations, the refusal to recognise a name recognised by authorities of a Member State (Grunkin-Paul and Garcia Avello). But on the other hand, the Article leaves a margin of appreciation (subject to guidelines) for domestic courts in others cases addressing the same subject.
This is problematic when we know that names are part of the identity of the EU citizen, seen as the “fundamental status” of nationals of Member States (Grzelczyk), as well as part of the identity of the individual person generally speaking (ECtHR rulings in Kemal Taskin & Others v Turkey and Burghartz v Switzerland).
Barnard & Peers: chapter 13
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