FREIFRAU VON REHLINGEN AND OTHERS v. GERMANY
Inadmissible
Eckart Klein;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych
The four applicants are Mrs Alexandra Freifrau von Rehlingen, Mr Matthias Prinz and their two children: Antonia Luisa Alexandrine, and Fidelius Friedrich Günter. They are all German nationals who were born in 1955, 1956, 1990 and 1992 respectively and live in Hamburg. The applicants were all represented before the Court by the second applicant, Mr M. Prinz, a lawyer practising in Hamburg. The German Government (“the Government”) were 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 would also be 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 either 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 surname 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 against women (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 found a new regulation, couples who married after the day of the publication 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 Article 1617 § 1 of the Civil Code), a child would either obtain the surname of the father or the mother. Currently, if the parents cannot agree, the competent family court will refer the right to determination to one parent. A compound name for the child was not provided for by the new Act. The first two applicants married in 1990 and decided to keep their birth names. After the birth of their children, they applied to the Hamburg Registry Office (Standesamt) in order to obtain for their children the surnames “Freiherr von Rehlingen-Prinz” and “Freiin von Rehlingen-Prinz”. Their applications were to no avail. On 23 March 1994, they applied again to the Hamburg Registry Office in order to be considered for the period indicated by the Federal Constitutional Court in its judgment of 1991 during which compound names were provisionally permitted. Moreover, they argued that the current law as provided for by the Act on the Regulation of the Law of Family Names was unconstitutional in as far as it precluded compound names for children. Their application was dismissed by the Hamburg Registry Office which found that both children had obtained the last name “Prinz” in accordance with the then applicable Article 1355 § 2 of the German Civil Code. On 28 June 1994, the Hamburg District Court dismissed the first two applicants’ claim to order the Hamburg Registry Office to register their children with compound names. It held that, both under the present law and under the law that had been in force before the judgment of the Federal Constitutional Court in 1991, their children were not entitled to obtain compound names. The District Court did not find any reasons for the unconstitutionality of the present law, nor had any concerns been raised by academics and legal scholars in that connection. In its judgment of 1991, the Federal Constitutional Court had indicated a provisional period in which compound names could be obtained only with respect to those marriages that were concluded after the date of the publication of the judgment. The District Court found that that judgment was plain and unambiguous in this respect, and the applicants were clearly not concerned by the provisional period as they had married the year before the judgment was published. On 21 September 1994, the Hamburg Regional Court dismissed the first two applicants’ appeal against the decision of the District Court of 28 June 1994. The first two applicants’ further appeal was dismissed by the Hanseatic Court of Appeal on 18 September 1995. The court found that Article 1616 § 2 of the Civil Code was constitutional and neither violated the right to a family (Article 6 § 1 of the Basic Law) nor the right to educate one’s own children (Article 6 § 2 of the Basic Law). A positive obligation on the legislator to provide the possibility for children to obtain a compound name could not be derived from the Federal Constitutional Court’s judgment of 1991. On the contrary, the Federal Constitutional Court had granted the legislator a wide margin of appreciation when setting the law on family names, and the provisional period in which compound names could be obtained had only been introduced in order to allow the legislator the choice of all existing options within that margin. The first applicant lodged a constitutional complaint against the Act on the Regulation of the Law of Family Names in 1995. On 1 August 2000, the Federal Constitutional Court refused to admit that complaint. On 7 February 2002, the Federal Constitutional Court refused to admit the constitutional complaint (1 BvR 2300/95) of all four applicants lodged in 1995 against the above decisions 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. The applicant children’s younger siblings bear a compound name, but are neither born, nor registered in the birth register, in Germany. “§ 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. (...)” “§ 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. 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 surname 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 surnames 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 surnames 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 surnames to two. This method, however, would prevent parents who already bear a compound name to give their children a compound name comprised of both parents’ surnames, or obtain such a surname themselves. A person with a compound name could no longer keep his or her surname after marriage and add the surname of his or her partner, as currently provided for by Article 1355 of the Civil Code. Therefore, the introduction of an option to let children obtain compound names would at the same time reduce the choice of surnames for those who already bear a compound name. Such a situation, in which one fundamental right restricts 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 surname after marriage, married couples could choose one of their surnames as the surname for their children. Article 1616 § 2 of the German Civil Code reduced the possible options to give their children a surname, but this concerned spouses of both sexes alike. The fact that married couples with different surnames were in practice more likely to choose the husband’s surname 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 a 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 under certain circumstances, particularly 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 surname of the mother or the father.