Jacques BELLEZIT, Université de Strasbourg

A primary criticism of the European Union is its tendency to involve itself in matters that initially appear outside its defined powers, as outlined in Articles 3 to 6 of the TFEU.

The principle of attributed powers is embedded in EU law and acknowledged as legally binding to ensure the EU operates as a “rule of law” entity (Les Verts judgment). However, this has not prevented the Court of Justice of the European Union (CJEU) from broadly interpreting its jurisdictional authority concerning EU law. This assertive approach, evident since the early days of European integration (see Costa v ENEL), has drawn criticism.

The CJEU’s influence has extended beyond the literal limits of its judicial power, which is confined to ensuring legal compliance “in the interpretation and application of the Treaties” (Article 19(1) TEU). While originally focused on resolving trade-related disputes, the court now handles matters of civil status and nationality, areas traditionally under the purview of sovereign states (see the second Nottebohm judgment).

The CJEU’s recent Bogendorff von Wolffersdorf judgment, issued on June 2nd, 2016 (C-438/14), is noteworthy, particularly in light of past criticism regarding the court’s forays into areas like nationality (Rottmann) and civil status (Avello) under the auspices of free movement for EU citizens (Article 20(2) TEU). This recent ruling suggests the CJEU may have considered these critiques.

Facts

In 2004, German national Mr. Nabiel Peter Bogendorff von Wolffersdorff acquired British citizenship and, in accordance with British law, changed his name to “Peter Mark Emanuel Graf von Wolffersdorff Freiherr von Bogendorff.” Citing Article 48 of the Law introducing the Civil Code (“EGBGB”), authorities in Karlsruhe, Germany, refused to recognize his British name and the inclusion of the noble titles “Graf” and “Freiherr” (“Earl” and “Baron”). When the applicant sought an order from the Karlsruhe District Court to compel recognition of his British name, the court requested a preliminary ruling from the CJEU on the interpretation of EU citizenship law.

This judgment is particularly interesting because the preliminary ruling addresses Article 48 of the EGBGB, which was incorporated into German law following the CJEU’s Grunkin-Paul judgment. In that case, German international private law norms governing name attribution (specifically, the refusal to allow a German national born in Denmark to use both parents’ surnames) were deemed incompatible with the freedom of movement principle (Article 21 TFEU – formerly Article 18 TEC).

The Bogendorff von Wolffersdorff ruling essentially states that “Member State authorities are not obligated to recognize the name of a citizen of that Member State when […] non-recognition is, in such a context, justifiable based on public policy grounds, specifically when it is appropriate and necessary to uphold the principle of equality for all citizens of that Member State before the law.”

Comments

Beyond offering “EU law approval” for the changes to German law post-Grunkin-Paul, this ruling suggests that the CJEU has taken note of criticism regarding its activism concerning Member State civil status. This case law mirrors a similar ruling, Sayn-Wittgenstein, where an Austrian citizen residing in Germany unsuccessfully sought recognition in Austria of her German name, “Fürstin von Sayn-Wittgenstein” (“Princess Sayn-Wittgenstein”). In both cases, the CJEU ruled that Article 21 TFEU does not prevent national authorities from rejecting names containing noble titles on public policy grounds (particularly the principle of equality before the law).

This outcome can be attributed to the fact that both the Austrian and German legal systems, at the constitutional level, uphold equality before the law by prohibiting the use of noble titles in names. The Luxembourg Court is reluctant to contradict the constitutional identities of Member States (paragraphs 64 and 65 of the judgment).

While the Court has previously acknowledged the significance of human dignity and constitutional identity within German constitutional law as grounds for restricting the freedom of services (Omega judgment), it missed an opportunity in this case law to define the concept of national constitutional identity as discussed by academics, even though the Treaties guarantee its protection (Article 4(2) TEU).

Therefore, the Bogdendorff von Wolffersdorff judgment recognizes that prohibiting the use of noble titles, ranks, and names falls under the purview of Member States’ constitutional identity. Consequently, adhering to the principle of subsidiarity, the CJEU asserts no jurisdiction over this matter, allowing domestic courts to address it in line with the principle of proportionality (paragraphs 78 and 79 of the judgment).

This decision highlights the inconsistent interpretation of Article 21 TFEU (formerly Article 18 TEC) in various contexts. In some instances, this Article prohibits the refusal to recognize a name acknowledged by the authorities of a Member State (Grunkin-Paul and Garcia Avello). Conversely, in other cases involving the same issue, the Article grants domestic courts leeway in interpretation (subject to guidelines).

This inconsistency is problematic considering that names are integral to the identity of EU citizens, regarded as the “fundamental status” of Member State nationals (Grzelczyk), and are a core element of individual identity in general (ECtHR rulings in Kemal Taskin & Others v Turkey and Burghartz v Switzerland).

Barnard & Peers: chapter 13

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