HEIDECKER-TIEMANN v. GERMANY
Inadmissible
Eckart Klein;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych
The applicant, Mr Colin Christoph Heidecker, is a German national who was born in 1986 in Edinburgh and lives in Hamburg. In his everyday life the applicant uses the compound name Heidecker-Tiemann. The application was originally filed by his parents, Mrs Gisela Heidecker and Mr Axel Tiemann. Having reached legal age, the applicant informed the Court in March 2004 that he wished to pursue the application himself. He is represented by his father, Mr A. Tiemann. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. According to the initial regulation of Article 1616 of the German Civil Code (Bürgerliches Gesetzbuch) of 18 August 1896, a child born in wedlock would obtain the surname of the father, which was also the common family name. With the introduction of the Act on the Reform of the Marital and Family Law (Erstes Gesetz zur Reform des Ehe- und Familienrechts) of 14 June 1976, a married couple could choose any of the spouses’ surnames as the family name. Their children would then obtain the same family name. If the parents were unable to choose a family name, the husband’s name would automatically become the family name according to the then applicable version of Article 1355 § 2 of the German Civil Code. That provision was held to be unconstitutional and incompatible with the prohibition of discrimination (Article 3 § 2 of the Basic Law) by the Federal Constitutional Court on 5 March 1991. The Federal Constitutional Court ordered that, until the legislator had formulated a new regulation, couples who married after the day of the delivery of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames. In such an instance, their children were provisionally able to obtain a compound name composed of both surnames of the parents, in order to leave to the legislator the option to introduce the possibility to obtain such names. On 1 April 1994, the Act on the Regulation of the Law of Family Names (Gesetz zur Neuordnung des Familiennamensrechts) came into force which corrected the above constitutional flaws. Article 1355 of the Civil Code was amended by giving both spouses the possibility to keep their surnames. According to the henceforth relevant Article 1616 § 2 (replaced in 1997 by 1617 § 1) of the Civil Code, a child would either obtain the surname of the father or the mother. A compound name for the child was not provided for by the new Act. The applicant’s parents married in 1984. While the applicant’s father kept his surname, “Tiemann”, the applicant’s mother adopted the compound name “Heidecker-Tiemann”. The applicant was born in 1986 in Edinburgh where he was subsequently registered by the Registry Office as “Colin Christoph Heidecker-Tiemann”, bearing a surname composed of both his parents’ original surnames (“Heidecker” and “Tiemann”). The applicant was registered under the surname “Tiemann” in the Family Register (Familienbuch) at the Registry Office of Neubrandenburg, where the family resided at the time. The applicant’s birth was not registered within the meaning of the Register of Births, Deaths and Marriages Act (Personenstandsgesetz). After the Act on the Regulation of the Law of Family Names entered into force on 1 April 1994, the applicant’s mother changed her surname back to her original maiden name (“Heidecker”) in May 1994. Subsequently, the applicant’s parents declared before the Neubrandenburg Registry Office that the applicant’s surname should be “Heidecker-Tiemann”. When the Registry officer refused the registration because compound names were not permitted by the Civil Code, the parents opted for the registration of the name “Heidecker” and instituted proceedings in order to be able to register a compound name. On 28 March 1995, the Neubrandenburg District Court dismissed the parents’ claim and found that the Registry Office was not compelled to authenticate (öffentliche Beglaubigung) the applicant’s parents’ declaration and register the applicant with a compound name. The appeal was dismissed by the Neubrandenburg Regional Court on 26 February 1996. The court found that the claimants had not demanded the authentication and the certification of their declaration, but the registration of the requested surname of the applicant. Upon the applicant’s immediate appeal, that decision was quashed by the Rostock Court of Appeal on 22 August 1996. The latter ordered the Neubrandenburg Registry Office to authenticate the declaration of the applicant’s parents. It also found that the Neubrandenburg Registry Office was not competent to register the applicant’s surname. As the applicant had been born abroad, the competent authority was the Berlin Registry Office. The application had been given the file number “III 16/94” by the Neubrandenburg District Court, which was subsequently quoted by the Neubrandenburg Regional Court and the Rostock Court of Appeal. On 17 January 1997, the Neubrandenburg Registry Office authenticated the declaration of the applicant’s parents (that is, that the applicant’s last name should be “Heidecker-Tiemann”) of 10 May 1994 and forwarded a verified copy to the Berlin Registry Office which received it on 20 January 1997. The Berlin Registry Office did however not receive the original. On 4 February 1997, the Berlin Registry Office refused to certify the validity of the declaration. It found that the application was ill-founded for formal reasons, because section 7(1) of the Act on the Regulation of the Law of Family Names provided that a declaration had to be issued within one month after one parent changed his or her last name. Thus, the time-limit had already expired with the receipt of the declaration in January 1997. On 4 December 1997, the Schöneberg District Court dismissed the motion of the applicant’s parents to register the applicant under a compound name. The court found that, irrespective of formal requirements, the applicable law did not provide for the possibility to obtain compound names. The parents’ appeal was dismissed by the Berlin Regional Court on 2 July 1998. On 17 August 1999, the Berlin Court of Appeal (Kammergericht) dismissed the parents’ further appeal (weitere Beschwerde). The application had been given the file number “70 III 257/97” by the Schöneberg District Court, which was subsequently quoted by the Berlin Regional Court and the Berlin Court of Appeal. On 19 June 2000, the Federal Constitutional Court refused to admit the applicant and his parents’ constitutional complaint against the above decisions because the complaint was inadmissible. The applicant’s parents subsequently obtained a required permit of their declaration of 10 May 1994 by the guardianship court (vormundschaftliche Genehmigung) by order of the Neubrandenburg District Court of 29 September 1999. The original copy of the declaration was subsequently sent to the Berlin Registry Office on 7 February 2000. On 11 February 2000, the Berlin Registry Office issued a statement to the applicant to the effect that he was registered under the last name “Heidecker” as from 19 May 1994. The applicant’s parents argued that the above-mentioned permit would satisfy the procedural requirements for the registration of the applicant’s surname as “Heidecker-Tiemann”. The Registry Office however refused to register the compound name. On 12 July 2000, the Schöneberg District Court dismissed the applicant and his parents’ motion against the refusal because the applicable law did not provide for compound names and did not violate fundamental rights. The court found it therefore unnecessary to rule whether or not the certified declaration of 10 May 1994 was introduced out of time. On 20 October 2000, the Berlin Regional Court dismissed the applicant and his parents’ appeal. On 19 June 2001, their further appeal was dismissed by the Berlin Court of Appeal (Kammergericht). The application had been given the file number “70 III 98/00” by the Schöneberg District Court, which was subsequently quoted by the Berlin Regional Court and the Berlin Court of Appeal. On 21 February 2002, the Federal Constitutional Court refused to admit the applicant and his parents’ constitutional complaint against the decision by the Berlin Court of Appeal (Kammergericht) of 19 June 2001 by referring to a leading judgment of 30 January 2002 (see “Relevant domestic law and practice” below) in which the constitutionality of Article 1617 of the Civil Code had been confirmed. Article 1355 of the Civil Code provides: “§ 1 Spouses should designate a common family name (marital name). The spouses shall use the marital name which they have designated. If the spouses do not designate a family name, they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage. § 2 By declaration to the registrar, the spouses may designate, as their marital name, the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name. (...) § 4 A spouse whose name does not become the marital name may, by declaration to the registrar, attach, before or after the marital name, his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name. This shall not apply if the marital name consists of more than one name. If the name of one of the spouses consists of more than one name, only one of these names may be attached. (...)” Article 1617 of the Civil Code provides: “§ 1 If the parents do not have a marital name but if they have joint parental responsibility, they shall, by declaration to the registrar, designate the surname that the father or the mother has at the time of the declaration as the birth name of the child. (...) § 2 If parents make no designation within one month of the birth of the child, the family court shall transfer the right of designation to one of the parents. Subsection (1) applies mutatis mutandis. The court may impose a time-limit on the parent for the exercise of the right of designation. If, after the time-limit has expired, the right of designation had not been exercised, the child shall be given the name of the parent to whom the right of designation was transferred.” Under German law, authentic compound names are permitted only in very specific circumstances. For example, compound names may be retained if they were used prior to State regulation of the law governing names. Moreover, pursuant to the Act on Change of Family Names and Forenames, compound names may come into being when persons with surnames which are highly common in Germany such as “Schmidt” or “Müller” (so-called Sammelnamen) add another name to render their family name easier to distinguish. Compound names created in this way may be passed on to children. Under Section 10 § 1 of the Law Introducing the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch), a person’s name falls to be decided by the law of the State of his or her nationality. In a leading judgment of 30 January 2002, the Federal Constitutional Court held, by six votes to two, the former version of Article 1616 § 2 of the German Civil Code (which is identical to Article 1617 § 1 of the current version of the Civil Code) to be constitutional. In particular, the Federal Constitutional Court found that the provision neither constituted a violation of the right to a family (Article 6 § 1 of the Basic Law), the right to educate one’s own children (Article 6 § 2 of the Basic Law) nor the children’s right to protection of their personality rights as guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law. The Federal Constitutional Court considered that, once children would be allowed to obtain compound names, the number of surnames could exponentiate with each future generation. The next generation would already be able to obtain a last name comprised of four names. Such growing “chains of surnames” would not only be impracticable, they would also be to the detriment of future generations whose last names would be at risk of losing their function as a means of identification. The Basic Law would not prohibit the legislator from reducing the number of possible last names to avoid such “name chains” in order to secure the function of the surnames of future generations. The Federal Constitutional Court considered that a different way of avoiding “name chains” would have been to allow compound names, but to restrict the number of last names to two. This method, however, would prevent parents who already bore a compound name from giving their children a compound name comprised of both parents’ last names, or obtaining such a last name themselves. A person with a compound name could no longer keep his or her last name after marriage and add the last name of his or her partner, as currently provided for by Article 1355 of the Civil Code. Therefore, the introduction of an option to let one’s children obtain compound names would at the same time reduce the choice of last names for those who already bore a compound name. Such a situation, in which one fundamental right restricted another, would consequently require a balancing of interests, which the legislator had done when introducing the former version of Article 1616 § 2 of the German Civil Code (now Article 1617 § 1). The Federal Constitutional Court stated that the legislator had had several options to balance the above interests. The option which the legislator chose was thereby neither required nor prohibited by the Basic Law. Lastly, the Federal Constitutional Court found that the former version of Article 1616 § 2 of the German Civil Code did not violate the prohibition of discrimination on grounds of sex as guaranteed in Article 3 § 2 of the Basic Law. If each spouse kept his or her last name after marriage, married couples could choose one of their last names as the surname for their children. Article 1616 § 2 of the German Civil Code reduced the possible options to give their children a last name, but this concerned spouses of both sexes alike. The fact that married couples with different last names were in practice more likely to choose the husband’s last name for their children was not considered to suggest a different finding. Even though this could possibly indicate a widespread affirmation of traditional marriage patterns, Article 3 § 2 of the Basic Law could not be interpreted as containing a positive obligation on the State to introduce the parents’ right to choose a compound name for their children. In any case, such a regulation had only minor effects on the State’s positive obligation to secure equality of the sexes as contained in the second sentence of Article 3 § 2 of the Basic Law. That children could still obtain a compound name in cases in which one parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name. In both instances, children were only allowed to obtain either the last name of the mother or the father. In the case of Standesamt Stadt Niebüll v. Stefan Grunkin, Dorothee Regina Paul (C-96/04; Official Journal of the European Union of 17 June 2006), the Niebüll District Court made a reference for a preliminary ruling under Article 234 EC Treaty regarding the interpretation of section 10(1) of the Law Introducing the Civil Code (“EGBGB”, see “Relevant domestic law and practice” above) in the light of Article 12 EC Treaty (prohibition of discrimination on grounds of nationality) and Article 18 EC Treaty (freedom of movement). That case concerned a married couple of German origin who had kept their surnames and whose son (who also had German citizenship) was born in Denmark, where he was subsequently registered with a compound name composed of the surnames of his parents in the Danish birth register. The German authorities refused to recognise the compound name because of section 10(1) of the Law Introducing the Civil Code, according to which a person’s name falls to be decided by the law of the State of his or her nationality. Under German law, the son was not entitled to bear a compound name composed of the surnames of his parents. The parents’ appeal against that decision and their subsequent constitutional complaint with the Federal Constitutional Court were to no avail. When the parents, who in the meantime divorced, refused to make a declaration before the Registry Officer regarding the surname of their child, the Niebüll District Court had to refer the right to determination to one parent pursuant to Article 1617 §§ 2 and 3 of the Civil Code. The District Court subsequently referred the matter to the European Court of Justice pursuant to Article 234 EC Treaty with the following question: “In light of the prohibition on discrimination set out in Article 12 EC and having regard to the right to the freedom of movement for every citizen of the Union laid down in Article 18 EC, is the provision on the conflict of laws contained in Article 10 of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?”. The European Court of Justice (First Chamber) decided on 27 April 2006 that it had no jurisdiction to answer the question referred by the District Court because the latter, when making a decision pursuant to Article 1617 §§ 2 and 3 of the Civil Code, exercised administrative authority, without at the same time being called on to decide a dispute. Therefore, the District Court could not be regarded as exercising judicial function. On 30 April 2006 the parents lodged a fresh request to register the compound surname. Following the Registry Officer’s refusal to grant the request, the parents lodged a complaint with the Flensburg District Court which referred the matter with the same question to the European Court of Justice. The case is currently pending before the latter court (C-353/06).