92002E3287

WRITTEN QUESTION E-3287/02

by Carlos Coelho (PPE-DE) to the Commission

(20 November 2002)

Subject: Principle of non-discrimination and respect for different cultures and traditions

A Portuguese citizen has complained that the law on registration of names currently in force in Spain (Law 40 of 5 November 1999) discriminates against the children of marriages between Spanish and Portuguese people, since the names and order of names of the children are altered without the parents' consent.

The problem arises when a child born of a Spanish mother or father is registered at a Spanish registry office or consulate in order to obtain Spanish nationality. When registering the child both registry offices and Spanish consulates alter children's names (by changing the order of the surnames) without authorisation, almost always against the parents' will and without recognising identity cards, birth certificates or any other Portuguese official document.

In view of the principles underpinning the European enterprise, namely a Europe where people have freedom of movement and there is mutual recognition of educational qualifications and court judgments, does this not constitute an infringement of a basic right, i.e. people's right to choose what name to give their children? Does it not constitute lack of respect for a person's identity (name), culture and traditions in this case a valued tradition which entails passing on the names of the father and grandfather?

Answer given by Mr Vitorino on behalf of the Commission

(21 January 2003)

The complaint from the Portuguese citizen to which the Honourable Member refers, and which calls the current Registration of Names Act in Spain (Act No 40/1999 of 5 November 1999) into question, has been received by the Commission direct. The complainant considers that Spanish legislation which provides that parents may decide by mutual agreement the order in which their first family name shall be transmitted to their child, discriminates against children of Portuguese citizens who also have Spanish nationality, because, under current Spanish rules, when they are registered in Spain such children lose the father's last family name, which is the one transmitted to children in Portugal. According to the complainant, the legislation is prejudicial to such children because it entails changing their names and the order of their names in Spanish registers, and ignores identity cards, birth certificates or any other Portuguese official document.

The Court of Justice has been asked for a preliminary ruling by Belgium's Council of State in a similar case. The request relates to the interpretation of Articles 17 and 18 of the EC Treaty in a dispute between a Spanish national and the Belgian authorities over Belgian legislation on the registration of children's names. The case concerns a Spanish male national who is married to a Belgian female national (both are resident in Belgium) and their children, who have dual nationality and to whom the lex fori, i.e. Belgian law, is being applied in accordance with the rules of private international law.

In its observations to the Court of Justice, the Commission has argued that the principles of Community law on citizenship of the Union and the free movement of persons, which are enshrined in particular in Articles 12 and 17 of the EC Treaty, should be interpreted as precluding legislation that prevents an administrative authority, when faced with an application to change a family name in the case of minor children residing in the Member State of that authority and having the nationality of that State through their mother and the nationality of another Member State through their father, from applying the legal rules of that other Member State concerning the attribution of the family name on the grounds that in the host Member State children normally take their father's family name, where the application of that other Member State's legal rules cannot reasonably be considered as conflicting with the public interest in the host Member State.

The Commission considers that any decision on what action to take in this matter should wait until the Court of Justice has made its position known.