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 authority cited therein, the ‘effects’ thus regulated extend only to those in family law and not to the determination of the adopted child’s name (which remains governed by Paragraph 13(1)). However, according to a report drawn up by the International Commission on Civil Status (ICCS) in March 2000, (20) at which time Austria was a member of that organisation, in response to the question ‘What is the law applicable to the determination of the name of an adopted child?’, Austria stated: ‘The (change of) name of an adopted child is one of the effects of the adoption and is determined according to the national law of the adopting party or parties. When the adopting parties are spouses of different nationality, their common national law, failing which their previous common national law if it is still the national law of either spouse, applies. Formerly, the applicable law was that of the habitual residence.’

19.      Under Paragraph 183(1), read in conjunction with Paragraph 182(2), of the Austrian Civil Code, (21) a child adopted by a single person takes that person’s surname if the legal ties with the parent of the other sex have been dissolved.

20.      Paragraph 15(1) of the Law on civil status (22) requires a registration to be rectified if it was incorrect at the time the entry was made.

 German law

21.      Article 109 of the Weimar Constitution, (23) inter alia, abolished all privileges based on birth or status and provided that marks of nobility were to be valid only as part of a surname. Pursuant to Article 123(1) of the present Constitutional Law, (24) that provision remains applicable today. It is common ground, although no legislative authority has been cited to the Court, that under German law a surname which includes a former mark of nobility continues to vary according to the sex of the bearer if that was the case for the former mark of nobility.

22.      Under Article 10(1) of the Law introducing the Civil Code, (25) personal names are determined by the law of the State of the person’s nationality. Article 22(1) and (2) of the same law provides that adoption and its effects on legal relationships between those concerned in the field of family law are governed by the law of the State of the adopting party’s nationality.

23.      The ICCS report cited above (26) indicates that in 2000, in reply to the question ‘What is the law applicable to the determination of the name of an adopted child?’, Germany stated: ‘The name of an adopted child depends on the law in force in his or her country of origin. German legislation on names is therefore applicable when a foreign child has been adopted by a German and has thus acquired German nationality. If a German child is adopted by a foreign national, the status of the child’s name is changed thereby only if he or she has lost German nationality on adoption.’ (27)

24.      Article 1757(1) of the Civil Code, (28) read in conjunction with Article 1767(2) of the same code, provides that adopted children, including those over the age of majority, acquire the surname of the adopting party as ‘birth name’.

 Facts, procedure and question referred

25.      The appellant in the main proceedings (‘the appellant’) is an Austrian citizen, born Ilonka Kerekes in Vienna in 1944. In October 1991, her surname was recorded as ‘Havel, née Kerekes’ when her adoption under German law by a German citizen, Lothar Fürst von Sayn-Wittgenstein, pursuant to a notarial act, was formalised by decision of the Kreisgericht (District Court) Worbis (Germany), sitting as guardianship court. When she wished to have her new identity registered with the authorities in Vienna, those authorities wrote to the Kreisgericht Worbis in January 1992 for further particulars. That court then issued a supplementary decision specifying that on adoption her birth surname became ‘Fürstin von Sayn-Wittgenstein’, the feminine form of her adoptive father’s surname. The Viennese authorities then issued the appellant with a birth certificate on 27 February 1992, in the name of Ilonka Fürstin von Sayn-Wittgenstein. It is common ground that the adoption had no effect on her nationality.

26.      It was stated at the hearing that the appellant is professionally active at the upper end of the real estate market; in particular, she acts, under the name of Ilonka Fürstin von Sayn-Wittgenstein, in the sale of castles and stately homes. It appears that, at least since her adoption, she has lived and carried on business principally in Germany (though with some cross-border activity), has been issued with a German driving licence in the name of Ilonka Fürstin von Sayn-Wittgenstein and has registered a company in Germany under that name. In addition, her Austrian passport has been renewed at least once (in 2001), and two certificates of nationality have been issued, all in the name of Ilonka Fürstin von Sayn-Wittgenstein, by the Austrian consular authorities in Germany.

27.      On 27 November 2003, the Austrian Verfassungsgerichtshof (Constitutional Court) gave judgment in a case whose circumstances were similar to those of the appellant. It ruled that the Law on the abolition of the nobility precluded an Austrian citizen from acquiring, through adoption by a German citizen, a surname composed of a former title of nobility. (29) That judgment also confirmed previous case-law to the effect that, unlike German law, Austrian law does not allow surnames to be formed according to different rules for males and females.

28.      Some time after that judgment, the registration authorities in Vienna took the view that the appellant’s birth registration was incorrect. On 5 April 2007, they notified her of their intention to correct her surname in the birth register to ‘Sayn-Wittgenstein’. On 24 August 2007, despite her objections, they confirmed that position. Her administrative appeal against that course of action having been dismissed, the appellant now seeks to have the decision overturned by the Verwaltungsgerichtshof.

29.      Before that court, the appellant relies in particular on her rights of freedom of movement and freedom to provide services, as guaranteed by the EU Treaties. It would be an interference with those rights, she considers, to require her to use different surnames in different Member States. She also claims that to change her surname after 15 years would be an interference with her private life as protected by Article 8 of the European Convention on Human Rights.

30.      The defendant authority submits, in particular, that the appellant is not being required to use different names, merely to remove the title element ‘Fürstin von’ from the surname ‘Sayn-Wittgenstein’, which remains unchanged; that, even if she were to suffer some inconvenience, the abolition of the nobility is a constitutional principle of overriding importance in Austria, which can justify derogating from a Treaty freedom; and that, even under German rules, her surname should have been determined by Austrian law (consequently, the form ‘Fürstin von Sayn-Wittgenstein’ not being allowed in Austrian law, its attribution to the appellant was incorrect from the point of view of German law as well).

31.      The Verwaltungsgerichtshof, having considered this Court’s judgment in Grunkin and Paul, takes the view that any obstacle to the appellant’s freedom of movement which might ensue from the change to her surname might nevertheless be justified as being based on objective considerations and proportionate to the legitimate aim pursued by the abolition of the nobility.

32.      It therefore seeks a preliminary ruling on the following question:

‘Does Article 18 EC preclude legislation pursuant to which the competent authorities of a Member State refuse to recognise the surname of an (adult) adoptee, determined in another Member State, in so far as it contains a title of nobility which is not permissible under the (constitutional) law of the former Member State?’

33.      Written observations have been submitted by the appellant, by the German, Italian, Lithuanian, Austrian and Slovak Governments, and by the Commission. At the hearing on 17 June 2010, oral submissions were made on behalf of the appellant, the German, Czech and Austrian Governments and the Commission.

 Assessment

34.      A number of the issues raised by the referring court’s question can be dealt with in a straightforward manner, even if some of them have given rise to divergent points of view in the submissions made to the Court. Other issues, however, seem more elusive and may, in the final event, require further findings of fact or (national) law before they can be finally resolved. With regard to those issues, I shall endeavour to analyse the relevant rules of EU law as they should apply in the various possible hypotheses.

 Applicability of EU law

35.      The first issue is one on which no disagreement has been expressed in the submissions to the Court. It is common ground that the appellant is a national of one Member State residing and professionally active in another Member State. Consequently, her situation is not purely internal to either Member State, and both must comply with EU law when exercising such competence as they have with regard to the determination of her name. In that context, the appellant may in principle rely, as against the Austrian authorities, on the rights and freedoms conferred upon her by the Treaty as a citizen of the Union and as an economic operator, a national of one Member State established in the territory of another and providing services to persons in one or more other Member States. (30)

36.      That implies that, even if a Member State’s national law is the sole law applicable to the determination of the name of one of its citizens, it must comply with EU law when applying that national law in order to change or rectify an entry in a register of civil status when the citizen in question has relied on that entry in the context of the exercise of his or her rights as a citizen of the Union to move and reside freely within the territory of the Member States.

 Discrimination on grounds of nationality

37.      The referring court does not seek guidance on the question of discrimination, and indeed considers that the question does not arise in the circumstances of the case. The same view is taken by the Commission and by all the Member States which have submitted observations to the Court.

38.      However, the appellant sees discrimination on grounds of nationality flowing from the Austrian rules of conflict, (31) in that, if a German national adopts another German national in Austria, the law applicable to all aspects of the adoption will be German law and the adoptee can thus acquire a surname including elements of a former title of nobility, whereas, if the adoptee is an Austrian national, the name will be determined according to Austrian law and a surname of that kind cannot be acquired.

39.      Quite apart from the fact that the appellant was not in that situation, as she was adopted in Germany, I cannot agree with such an analysis. As was the case in Grunkin and Paul, the Austrian conflict rule in question (32) refers in all cases to the substantive law of the nationality of the person concerned. Nor does that rule clash in any way with the equivalent rule in German law, (33) which appears to be substantially identical. Such a rule, as I noted in my Opinion in Grunkin and Paul, distinguishes between individuals according to their nationality, but does not discriminate on grounds of nationality. The purpose of the prohibition of such discrimination is not to efface the distinctions which necessarily flow from possession of the nationality of one Member State rather than another but to preclude further differences of treatment which are based on nationality. Here, all citizens are treated in accordance with the law of their Member State of nationality.

  ‘Serious inconvenience’

40.      When considering whether there is interference with a Treaty freedom in similar cases, the Court has used as a criterion the degree of inconvenience suffered by a person as a result of having divergent names officially registered in different Member States. In Konstantinidis, it considered that rules of transcription in registers of civil status were incompatible with the Treaty guarantee of the right of establishment if their application caused the person whose name was transcribed in a different alphabet ‘such a degree of inconvenience as in fact to interfere with his freedom’ to exercise that right. That was the case if the resultant spelling modified the pronunciation of his name and if the distortion exposed him to the risk that potential clients might confuse him with others. In García Avello and Grunkin and Paul, the Court stressed more generally the serious inconvenience likely to arise in any circumstances in which a citizen may be required to justify a divergence of names in official documents relating to him and on which he wishes to rely.

41.      Several Member States have argued that the appellant will suffer no such inconvenience as a result of the rectification of her surname in the Austrian registers of civil status. On the one hand, she will not be required to use different surnames in different Member States, as the corrected entry in the Austrian registers will henceforth be authentic in all circumstances. On the other hand, the central, identifying element of her surname – ‘Sayn-Wittgenstein’ – will remain, so that there will be no confusion as to her identity, and only the non-defining adjunct ‘Fürstin von’ will be removed.

42.      As regards the first argument, it is true that the children in García Avello and Grunkin and Paul faced the prospect of going through life with their names irrevocably recorded in conflicting forms in the registers of civil status of two Member States, with each of which they had a close connection from birth. It would appear that the name of the appellant in the present case, by contrast, is recorded in the registers of civil status only in Austria and that only the Austrian authorities can issue her with official documents such as passports or certificates of nationality, so that any change to the entry of her name there should give rise to no conflict with registers kept in, or official documents issued by, another Member State.

43.      That factual situation might have to be investigated more closely by the competent national court before a final conclusion is drawn. Whilst the German Government has stated that it knows of no entry concerning the appellant in German registers of civil status, her counsel stated at the hearing that he ‘believed’ she had been married and divorced in Germany. If that is so, there might be a conflict between the forms in which her surname is recorded in Germany and Austria, which could lead to difficulties if, for example, she wished to remarry.

44.      Irrespective of that aspect, however, it appears more certain that the appellant has at least been issued with a driving licence and has registered a business company in Germany, both under the name Ilonka Fürstin von Sayn-Wittgenstein. It is plausible that she has had to register with the authorities there as a non-German resident. She is likely to have a social security record in Germany, for health insurance and pension purposes. In addition to such official records of her name, she will no doubt, over the 15 years between the first registration of her surname as ‘Fürstin von Sayn-Wittgenstein’ in Austria and the decision to rectify it to ‘Sayn-Wittgenstein’, have opened bank accounts and entered into ongoing contracts, such as insurance policies, in Germany. In short, she has lived for a considerable time in a Member State under a particular name, which will have left many traces of a formal nature in both the public and the private sphere. It can hardly be described as other than a serious inconvenience to be obliged to modify all those traces because her official identity papers now give her a different name. Even if the change, once effected, will eliminate any future discrepancy, the appellant is likely to be in possession of, and to need to produce in the future, documents issued or drawn up before the change which will show a different surname from that on her (new) identity documents.

45.      I agree that changes of surname can occur at various stages in a person’s life (particularly if she is a woman) as a result of marriage and divorce. The appellant in the present case has borne the surnames ‘Kerekes’ and ‘Havel’ in the past, and may well have experienced (and may continue to experience) inconvenience of the kind I have outlined as a result of the changes from ‘Kerekes’ to ‘Havel’ and from ‘Havel’ to ‘Fürstin von Sayn-Wittgenstein’. However, quite apart from the fact that marriage and divorce are themselves usually intentional steps, any change of surname on marriage is, from a legal point of view, a matter of free choice for the parties concerned in the overwhelming majority of the legal systems of the EU. (34) Social pressures may, admittedly, limit that freedom of choice, but social pressures do not fall within the ambit of EU – or national – law. It is one thing for a person to suffer inconvenience as a result of a legally free choice (especially one which involves a socially acceptable, and even expected, change of surname), but quite another to have the inconvenience thrust upon her by operation of law (particularly if it might be perceived as correcting an irregularity committed by the person concerned).

46.      Perhaps a more important aspect is the appellant’s professional activity. Whatever her motivations may have been in seeking an adoption which would give her the surname ‘Fürstin von Sayn-Wittgenstein’, it seems very likely that the possession of such a name, suggestive of princely ancestry, is a considerable advantage in her professional activity (for the purposes of which she has exercised her freedom of establishment and, apparently, continues to exercise her freedom to provide services in different Member States) of acting as intermediary in property dealings involving castles and stately homes. (35)

47.      At the hearing, the agent for the German Government stated that the appellant must, for official purposes, bear the surname determined by the law of her nationality, but that it would not be unlawful for her to use the name ‘Fürstin von Sayn-Wittgenstein’ in everyday life. Even assuming that she can continue to use that name to her professional advantage, however, it seems to me that there is likely to be a significant difference between the use of her officially recognised name and the use of what would amount to a mere pseudonym or trading name, capable of being perceived as an imposture.

48.      As regards the second argument concerning the degree of inconvenience, I am puzzled by the approach taken by certain Member States, in particular in so far as it appeared to be put forward by the German Government at the hearing. (36) If ‘Fürstin von Sayn-Wittgenstein’ is in German law a complete surname which does not contain a title of nobility or a particle as such, and if it is thus comparable to a surname such as ‘Fürstmann’ or ‘Vonwald’ (both of which can be found in German and Austrian telephone directories), then how can it be said that one part of it (Sayn-Wittgenstein) is the central, identifying element of the name, while the other (Fürstin von) is merely a non-defining adjunct? If the element ‘Fürstin von’ were in fact a true title of nobility, which did not form part of the surname, the analysis would be different, but that is not the basis on which the question in this case has been referred.

49.      It seems clear to me that, on the basis that ‘Fürstin von Sayn-Wittgenstein’ is a single compound surname, then it is a different surname from ‘Sayn-Wittgenstein’ (just as ‘Baron-Cohen’ is a different surname from ‘Cohen’), and that confusion and inconvenience are likely to arise from a discrepancy between the two names applied to the same person. Moreover, as the Commission pointed out at the hearing, while the name ‘Fürstin von Sayn-Wittgenstein’ may be analysed in a particular way by German speakers, those unfamiliar with the language may analyse it differently. A French speaker, for example, might look on ‘Fürstin’ in the name as equivalent to ‘Giscard’ in ‘Giscard d’Estaing’, where ‘Giscard’ is usually seen as the principal element, and someone familiar only with Chinese might be quite incapable of analysing the name at all, just as most Europeans would be incapable of determining whether a Chinese name composed of several elements contained a possibly honorific component and whether that component was a title or a given name.

50.      I am therefore of the view that the degree of inconvenience which someone in the appellant’s position is likely to suffer from the rectification of her surname is comparable to that to which the Court has referred in its judgments in Konstantinidis, García Avello and Grunkin and Paul.

 Analysis of the legal consequences of the change of name

51.      Although the legal consequences, if any, flowing from the supplementary decision of the Kreisgericht Worbis, designating the appellant’s new birth surname as ‘Fürstin von Sayn-Wittgenstein’, are a matter for German and/or Austrian law and cannot be determined by this Court, the Verwaltungsgerichtshof’s question cannot properly be answered without reference to those consequences. It is therefore necessary to envisage what they may be.

52.      The German and Austrian Governments in particular have stressed what they see as a major difference between the situation in the present case and that in García Avello and Grunkin and Paul. Those cases involved (as, in a sense, did Konstantinidis) a refusal to recognise, in one Member State, a name in a form duly registered by the civil status authorities of another Member State in the exercise of a legitimate competence. Here, by contrast, it appears that the Kreisgericht Worbis was not competent, under either German or Austrian law, to determine the appellant’s surname in the way that it did, since the surname which it did designate was not permitted in two respects (the inclusion of a former title of nobility with the particle ‘von’, and the use of a feminine form) in Austrian law, which was the substantive law designated by both the German and the Austrian rules of conflict. Consequently, the entry rectified in Austria does not concern a surname legitimately conferred in another Member State but one given in error, first by the Kreisgericht Worbis and second by the Austrian registration authorities.

53.      As I have said, it is not for this Court to attempt to determine the national laws of the Member States. I note, however, that the position I have just outlined, which is that put forward by the German and Austrian Governments, is not expressed thus unequivocally in the order for reference, and that certain elements might suggest that it is not a full and accurate representation. The Austrian authorities’ response to the ICCS questionnaire in March 2000 (37) suggests that, at that date and in their view, Austrian law considered that the name of an adoptee was to be determined according to the law of the adopting party’s nationality (which, given the fact that German law does seem to have referred to the law of the adoptee’s nationality, might have raised issues of renvoi). And the somewhat conflicting Austrian case-law which has been referred to (38) suggests that it may not have been clear before 2003 whether an Austrian adopted by a German could take the latter’s surname (at least in the form borne by the adopting party) even if it contained elements prohibited under Austrian law.

54.      I venture no opinion on these matters, save to say that, for the sake of good order, it seems necessary to envisage three hypotheses (all based on the premiss that both sets of rules refer to the law of the adoptee’s nationality): (i) that the surname designated in the Kreisgericht Worbis’s supplementary decision has always been legitimate in both German and Austrian law; (ii) that, while it may have been thought legitimate at the time, subsequent case-law has revealed it not to have been so; and (iii) that it has never been legitimate from the point of view of either legal system.

55.      The first hypothesis concerns a situation comparable to that in Grunkin and Paul. In that case, a citizen of the Union, who had the nationality of only one Member State, had been born and had since been resident in another Member State, where his surname was determined and registered in accordance with its laws. In the appellant’s case, a citizen of the Union, who has the nationality of only one Member State, was adopted and has since been resident in another Member State, where her surname was determined in accordance with its laws. It is true that birth and adoption are not the same thing (although adoption might imaginatively be described as rebirth into a new family and, even on a strictly legal plane, the two trigger many identical rights, obligations and consequences) and that the appellant’s surname was not thereby entered in the German registers of civil status (although it may have been subsequently recorded in a number of more or less official registers). None the less, I consider the two situations sufficiently similar to conclude that, as in Grunkin and Paul, Article 18 EC precludes the Austrian authorities from refusing to recognise the surname determined in Germany in this hypothesis – unless their refusal is based on objective considerations and is proportionate to the legitimate aim pursued.

56.      The second hypothesis concerns a situation which differs in so far as the determination of the surname in accordance with German law appeared legitimate at the time, whereas it later proved not to have been legitimate. Assuming that the determination was made by the German court and the surname registered by the Austrian authorities in the genuine and plausible belief that it was the legally correct approach, and that the appellant applied for the determination and registration in good faith, it seems to me that the same approach should be taken as in the first hypothesis. While subsequent judicial rulings clarifying the legal position may justifiably have retroactive (ex tunc) effect, it must be possible for a citizen of the Union to rely, in a situation falling within the scope of EU law, on the protection of legitimate expectations, which is a fundamental principle of that law. Consequently, in this hypothesis too, Article 18 EC precludes the Austrian authorities from refusing to recognise the surname determined in Germany, unless their refusal is based on objective considerations and is proportionate to the legitimate aim pursued.

57.      The third hypothesis, on which the German and Austrian Governments agree, cannot easily be analysed in quite the same way. In this hypothesis, the law was clear, but was twice misapplied (first by a German court and subsequently by Austrian registry officials) in error or in ignorance. There can be no legitimate expectation, however, in the maintenance of a situation which is contrary to express legislation. Yet the unlawful situation was allowed (by the Austrian authorities – it was not a matter for the German authorities) to continue for a period of 15 years, during which it was even confirmed by the issuance of at least one passport and two certificates of nationality. By the end of that period, a rectification of the appellant’s surname had become certain to cause her serious inconvenience. It cannot be denied that the relevant authorities must be entitled to rectify errors discovered in registers of civil status. However, given the passage of time and the degree of inconvenience inevitably caused, questions of proportionality must arise. The rectification (in accordance with the law) is undoubtedly an interference in the appellant’s private life. Can it be justified? If the situation were purely internal, it would have to be considered in the light of national law, with reference to Article 8 of the European Convention on Human Rights. But, since it involves a national of one Member State lawfully resident and economically active in another, it must be assessed also in the light of EU law.

58.      I therefore reach the view that, whatever the analysis of the legal situation in the present case, it is necessary to consider whether the rectification in issue is justified by the pursuit of a legitimate aim and proportionate to the achievement of that aim.

 Justification

59.      It seems clear that the abolition of the nobility, and of all privileges and designations pertaining thereto, is a legitimate aim for a newly founded republic – such as Austria in 1919 – based on the equality of all citizens and struggling out of the ruins of an empire which had been dominated by privileged classes.

60.      That is not to say that it is a necessary aim, which must be pursued across the board in all the Member States. The maintenance, abolition or even creation of a system of nobility, hereditary or otherwise, or of other secular honours, titles or privileges, is a matter for each Member State alone, provided that it does not run counter to Union law – for example, the principles and rules concerning equality of treatment – within the latter’s sphere of application.

61.      It further seems to me to be legitimate for such a republic to wish to maintain a firm safeguard against any resurrection of the privileged castes whose abolition was the original aim, which may legitimately be enshrined as a constitutional principle.

62.      Nor does it seem disproportionate, as a general rule, for such a State to seek to ensure the achievement of that aim by prohibiting the acquisition, possession or use by its citizens of noble titles or status, or of designations which might lead others to believe that the person in question held such a dignity.

63.      A prohibition of that kind might, however, be seen as disproportionate if it were to impinge on names which, although capable of referring to a title of nobility, are not in fact derived from or perceived as such. I have already cited the names ‘Fürstmann’ and ‘Vonwald’, which can be found in the Austrian telephone directory. It seems also that simple surnames such as ‘Graf’ (whose literal meaning is ‘count’) and ‘Herzog’ (‘duke’), whose origins are unlikely to be noble and which are perceived as simple surnames, may be borne by Austrian citizens. (39) If that is so, and if the same applies to the acquisition of comparable names in other languages (such as ‘Baron’, ‘Lecomte’, ‘Leprince’ or ‘King’), the prohibition would not seem to be disproportionate in that regard. In those circumstances, a prohibition confined to the acquisition of surnames such as ‘Fürst (or Fürstin) von Sayn-Wittgenstein’, which are clearly derived from, and capable of being perceived as, true titles of nobility, does not appear to go beyond what is necessary to ensure achievement of the fundamental constitutional aim.

64.      Could that justification apply, however, in a situation such as that in García Avello or Grunkin and Paul, in other words, when the surname is legitimately determined under the law of another Member State with which the person concerned has a particularly close connection, such as nationality, or birth and residence?

65.      I would suggest that – based, as it is, on a fundamental constitutional rule – the justification should be accepted as valid in such a case, so that the Austrian authorities could, in principle, legitimately refuse to enter the surname in question in their registers of civil status or any official document and prohibit the person concerned from using it in Austria.

66.      However, to the extent that the name would remain as a legitimate – and possibly even obligatory – surname in another Member State with which the Austrian citizen had close ties, it would seem disproportionate to refuse to recognise its very existence as relating to the same person. It would be necessary, therefore, to temper the measure with whatever means could best attenuate the serious inconvenience which that person would otherwise be likely to suffer. One possibility would be for the Austrian authorities to issue a document similar to the ‘certificate of differing surnames’ provided for by the ICCS, (40) recognising that the person concerned, although only entitled to bear a particular name as an Austrian citizen, was none the less lawfully registered under a different name in another Member State.

67.      The foregoing considerations relate to what might be termed the ‘normal’ situation, where matters are clear from the outset. For example, in García Avello, the children’s surnames were recorded from the outset in different forms in the registers of civil status of the two Member States (Belgium and Spain) of which they were nationals; in Grunkin and Paul, the German authorities made it clear from the outset that they would not register the child’s surname in the form in which it had been registered in Denmark. In the present case, however, it seems to me that the 15‑year period during which the appellant remained officially registered in Austria, and was issued with identity documents, under the surname ‘Fürstin von Sayn-Wittgenstein’ must also be taken into account when assessing the proportionality of the decision to rectify that surname.

68.      The final decision on proportionality must be for the competent national court – there are, indeed, a number of legal and factual issues that may need to be verified. If, for example, it were established that the legal position in 1992 was such that the appellant, the German court and the Austrian authorities could justifiably believe that the appellant’s surname was to be determined by German law alone, then a rectification 15 years later might well seem disproportionate. If, on the other hand, it transpired that the appellant had acted in bad faith in seeking to be registered under a surname to which she knew she was not entitled, or had in any way misled any of the authorities in question, then rectification might seem a just and proportionate measure. In any event, the length of the period concerned and the official and professional use the appellant has made of the name ‘Fürstin von Sayn-Wittgenstein’ are necessarily factors to be weighed in the balance.

 The use of the form ‘Fürstin’

69.      A final issue which has been raised in the course of the submissions to the Court, but on which there has been little information as to the precise legal position in the two Member States concerned and little argument as to justification, is that of the (apparent) difference between the German and Austrian rules as regards the possibility of differentiating between masculine and feminine forms of a surname.

70.      As this is an issue which could have repercussions for the naming systems of a number of Member States (the Lithuanian Government has argued vehemently in defence of its own differentiated naming system, enshrined as a constitutional value, and the question of differentiated surnames in Irish was raised at the hearing), and as very little argument has been submitted on this point, I consider it sufficient for the Court to indicate that a rule such as that which appears to apply in Austria cannot, prima facie, justify an interference with a citizen’s rights of freedom of movement and residence if it is not based on a constitutional principle or other consideration of public policy.

 Conclusion

71.      In the light of all the foregoing considerations, I am of the opinion that, in response to the question raised by the Verwaltungsgerichtshof, the Court should rule to the following effect:

Even if a Member State’s national law is the sole law applicable to the determination of the name of one of its citizens, it must comply with European Union law when applying that national law in order to change or rectify an entry in a register of civil status when the citizen in question has relied on that entry in the context of the exercise of his or her rights as a citizen of the Union to move and reside freely within the territory of the Member States.

A rule having constitutional status in a Member State, based on fundamental considerations of public policy such as equality between citizens and the abolition of privilege, is in principle capable of justifying a prohibition on the acquisition, possession or use by its citizens of noble titles or status or of designations which might lead others to believe that the person in question held such a dignity, even if that prohibition might cause inconvenience to such a person exercising his or her rights as a citizen of the Union to move and reside freely within the territory of the Member States, provided that the principle of proportionality is respected and, in particular, that

(a)      the prohibition does not extend to the acquisition, possession or use of names which would not normally be interpreted in that way and

(b)      the Member State in question does not refuse to recognise that a citizen may legitimately be known in other Member States by another name which would not be permissible under its own law, and facilitates such a citizen’s task in overcoming any difficulties likely to ensue from the discrepancy.

When applying such a rule to change or rectify a particular entry in the registers, Member States must again have regard to the principle of proportionality, which requires them to take into account such factors as any legitimate expectation which the actions of their own authorities may have led the citizen to entertain, the length of time over which the name may have been used without challenge by those authorities and the personal and professional interest which the citizen may have in maintaining the use of a previously recognised name.

A prohibition on the acquisition, possession or use of a name in a form which differs according to the sex of the person concerned, if it is not based on a fundamental constitutional principle or other consideration of public policy in the Member State concerned, cannot in principle justify a change or rectification of an entry in a register of civil status when the citizen in question has relied on that entry in the context of the exercise of his rights as a citizen of the Union to move and reside freely within the territory of the Member States.

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1 – Original language: English.

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2 – It is common ground that the adoption had no effect on her Austrian nationality.

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3 – That is to say, what would in English usually be termed the registers of births, marriages and deaths.

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4 – Case C‑353/06 [2008] ECR I‑7639.

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5 – Signed in Rome on 4 November 1950 and ratified by all Member States of the European Union.

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6 – Burghartzv.Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; Stjernav.Finland, judgment of 25 November 1994, Series A no. 299-B, § 37.

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7 – Bulgakovv.Ukraine, No 59894/00, 11 September 2007, § 43, and the case-law cited.

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8 –      The EC Treaty is cited as it stood at the time of the order for reference. The text in square brackets indicates modifications brought about by the Lisbon Treaty and incorporated into the Treaty on the Functioning of the European Union (TFEU).

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9 – Proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1). An updated version was approved by the European Parliament on 29 November 2007, after removal of references to the European Constitution (OJ 2007 C 303, p. 1); the most recent – post-Lisbon – consolidated version is published in OJ 2010 C 83, p. 389.

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10 – OJ 2007 C 303, p. 17, at p. 20.

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11  – Case C‑168/91 [1993] ECR I‑1191.

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12 – Case C‑148/02 [2003] ECR I‑11613.

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13 – Cited in footnote 4 above.

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14 – The summary is adapted from the judgment in Grunkin and Paul, paragraphs 16 to 18, 23 to 28, 29, 36 and 38.

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15 – Gesetz vom 3. April 1919 über die Aufhebung des Adels, der weltlichen Ritter- und Damenorden und gewisser Titel und Würden (Adelsaufhebungsgesetz).

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16 – Bundes-Verfassungsgesetz (B-VG).

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17 – Vollzugsanweisung des Staatsamtes für Inneres und Unterricht und des Staatsamtes für Justiz, im Einvernehmen mit den beteiligten Staatsämtern vom 18. April 1919, über die Aufhebung des Adels und gewisser Titel und Würden.

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18 – See point 1 above and points 21 and 27 below.

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19 – Bundesgesetz vom 15. Juni 1978 über das internationale Privatrecht (IPR-Gesetz).

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20 – ‘Loi applicable à la détermination du nom’, available on http://www.ciec1.org/Documentation/LoiApplicablealaDeterminationduNom.pdf.

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21 – Allgemeines bürgerliches Gesetzbuch (ABGB).

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22 – Bundesgesetz vom 19. Jänner 1983 über die Regelung der Personenstandsangelegenheiten einschließlich des Matrikenwesens (Personenstandsgesetz – PStG).

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23 – Verfassung des Deutschen Reichs vom 11. August 1919 (VDR).

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24 – Grundgesetz (GG).

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25 – Einführungsgesetz zum Bürgerlichen Gesetzbuche (EGBGB).

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26 – Point 18 and footnote 20 above.

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27 – The apparent contradiction between the first two sentences would seem to be due to a misleading use of the phrase ‘country of origin’ to mean ‘country of (ultimate) nationality’, on the assumption that adoption may, but does not always, entail a change of nationality. The ICCS report is available only in French, so it is not possible to know what terms were in fact used by the German authorities in their reply to the questionnaire.

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28 – Bürgerliches Gesetzbuch (BGB).

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29 – Case B 557/03. The surname in question was Prinz von Sachsen-Coburg und Gotha, Herzog zu Sachsen (which would translate as ‘Prince of Saxe-Coburg and Gotha, Duke of Saxony’).

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30 – See point 12 above.

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31 – See point 17 above.

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32 – Paragraph 13(1) of the IPR-Gesetz; see point 17 above.

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33 – Paragraph 10(1) of the EGBGB; see point 22 above.

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34 – See ‘Facilitating Life Events, Part I: Country Reports’, of the final report drawn up for the European Commission in October 2008 by von Freyhold, Vial & Partner Consultants, relating to a comparative study on the legislation of the Member States on civil status, practical difficulties encountered by citizens wishing to exercise their rights in the context of a European area of justice in civil matters and the options available for resolving these problems and facilitating citizens’ lives. According to that report, the only exceptions to the freedom of a married woman to retain her own surname seem to be in Italy, where she must add her husband’s surname to her own, and among the Turkish community in Cyprus, where she must take her husband’s surname. In addition, a number of Member States preclude the use of the former spouse’s surname after divorce, unless good cause can be shown.

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35 – Although the circumstances of the case are rather different, I note that, in one of its often-cited judgments on freedom of movement (Case C‑19/92 Kraus [1993] ECR I‑1663 – a judgment delivered the day after that in Konstantinidis), the Court laid considerable stress on the fact that possession of the academic title in issue was an advantage in both gaining entry to a profession and prospering in it (see paragraph 18 et seq. of the judgment).

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36 – In a written answer to a question put by the Court, the German Government did, however, state that the elements ‘Fürstin von’ and ‘Sayn-Wittgenstein’ were of equal value in the overall surname.

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37 – See point 18 above.

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38 – See points 16 and 27 above.

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39 – Stephanie Graf, for example, is an Austrian athlete (a middle-distance runner) who represented her country in both the 2000 Olympic Games and the 2001 World Athletics Championships, while Andreas Herzog is an Austrian footballer who played in the national team between 1988 and 2003.

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40 – ICCS Convention No 21 on the issue of a certificate of differing surnames, signed at The Hague on 8 September 1982. Austria is not a party to that convention (so far, of the Member States, it has been ratified by only Spain, France, Italy and the Netherlands), but that would not prevent it from issuing a document of a similar nature for the benefit of those of its citizens who were affected.