Steve Peers

While many individuals possess a flexible understanding of their personal identity, this concept clashes with the perspective of law enforcement agencies. These organizations aim to establish a fixed identity for each person they gather information on to ensure absolute certainty.

The Court of Justice of the European Union (CJEU) recently addressed these contrasting viewpoints in a case involving an individual identified as ‘U.’ This case was among several during that week where plaintiffs were identified solely by letters, a practice the author suggests moving away from in favor of using pseudonyms for clarity and ease of reference.

The crux of ‘U’s case revolves around the designation of names, making the use of an initial somewhat ironic. The individual, referred to as ‘Doktor U’ due to his right to use the title “Doktor” under German law, experienced difficulties due to the inclusion of his birth name on his passport.

The judgment

Doktor U, officially known as ‘U,’ but born with the name ‘E,’ encountered confusion due to the German authorities’ decision to include his birth name on his passport, displaying it as ‘Dr. U, GEB E’. This format led to uncertainty about his legal name, prompting him to challenge the decision in court. The case ultimately landed in the CJEU, tasked with interpreting the relevant EU passport security regulation and the EU Charter of Rights.

The CJEU clarified that EU law mandates adherence to the International Civil Aviation Organization (ICAO) recommendations on document security, highlighting an instance of EU law integrating international non-binding guidelines.

Furthermore, the court determined that Member States have the discretion to incorporate an individual’s birth name on their passport, even if not explicitly stipulated by national law, prioritizing document security by including this fixed element.

Importantly, the CJEU stipulated that while a birth name can be included, it cannot be placed in the optional section of the passport and must be clearly identifiable as such. In Doktor U’s case, the abbreviation ‘GEB’ (meaning “born” in German) was deemed insufficiently clear for international use and potentially problematic.

Comments

Germany’s significant influence within the EU political sphere hasn’t translated to a dominance of the German language, making their unique approach to passport name inscription potentially problematic for German citizens who have changed their names since birth.

The CJEU’s judgment partially addresses this issue by mandating clear identification of birth names for international comprehension, reducing potential confusion for individuals like Doktor U.

However, the court could have taken a stronger stance. Doktor U’s goal was not solely to minimize confusion but to be recognized solely by his current identity. The CJEU, while acknowledging the need for ICAO soft law application, didn’t address the inherent ambiguity in those regulations, with even the Advocate General offering a contrasting interpretation.

The objective of robust passport security could still be achieved while accurately reflecting an individual’s current identity. Had the court considered the proportionality and necessity of the interference with Doktor U’s right to privacy, as they should, they might have reached this conclusion.

Barnard & Peers: chapter 9, chapter 26