Standesamt Stadt Niebüll (Case C-96/04) Before the Court of Justice of the European Communities (First Chamber) ECJ (1st Chamber)

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1 Standesamt Stadt Niebüll (Case C-96/04) Before the Court of Justice of the European Communities (First Chamber) ECJ (1st Chamber) Presiding, Jann ( Rapporteur) P.C.; Colneric, Cunha Rodrigues, Ilesic and Levits JJ.; Jacobs A.G. April 27, 2006 Administrative court; European Court of Justice; Jurisdiction; Preliminary rulings H1 European Court procedure--"court or tribunal" under Art.234 EC-- determination of child's surname--procedure to transfer determination to one of child's parents--matter referred by administrative body--court acting in administrative rather than judicial capacity--no jurisdiction to give preliminary ruling. H2 Reference from Germany by the Amtsgericht (District Court), Niebüll under Art.234 EC. H3 The child L was born to a married couple, P and G, both of German nationality. The child, who also had German nationality, was living in Denmark at the date of the order for reference. The child was given, in accordance with Danish law, the surname G-P, which was entered on his birth certificate drawn up in Denmark. The Registrar's Office in Germany refused to recognise that surname on the ground that, under the applicable German conflict of laws rules, the name of a person fell to be decided under the law of the country of his nationality, and that German law did not allow a child to bear a double-barrelled name composed of his father and mother's surnames. The actions brought by P and G against that refusal were dismissed. P and G, who had divorced in the meantime, did not use a common married name and refused to determine the name of their child in accordance with para.1617 of the German Civil Code (BGB). The competent official brought the matter before the referring court acting as a Family Court, in order to transfer the right to determine the child's surname to one of his parents as also provided for by para.1617 BGB. Taking the view that, if Community law required that the name valid under Danish law was to be recognised under the German legal system, the *1415 proceedings pending before it would have no purpose, the referring court sought a preliminary ruling

2 as to whether, in the light of Arts 12 and 18 EC, the applicable German conflict of laws rule was valid in so far as it provided that the right to bear a name was governed by nationality alone. Held: Meaning of "court or tribunal" for purposes of Article 234 H4 (a) Under Art.234 EC, the Court had jurisdiction to give preliminary rulings concerning the interpretation of the EC Treaty and of the acts of the institutions of the European Community where a question of interpretation was raised before any court or tribunal of a Member State. In order to determine whether a body making a reference was a court or tribunal for the purposes of Art.234 EC, which was a question governed by Community law alone, the Court took account of a number of factors, such as whether the body was established by law, whether it was permanent, whether its jurisdiction was compulsory, whether its procedure was inter partes, whether it applied rules of law and whether it was independent. [11]-[12] Dorsch Consult (C-54/96): [1997] E.C.R. I-4961; [1998] 2 C.M.L.R. 237; Gabalfrisa and Others (C-147/98): [2000] E.C.R. I-1577; [2002] 1 C.M.L.R. 13; Salzmann (C-178/99): [2001] E.C.R. I-4421; [2003] 1 C.M.L.R. 30; Lutz (C- 182/00): [2002] E.C.R. I-547, followed. H5 (b) Whilst Art.234 EC did not make a reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court referred a question for a preliminary ruling, it nonetheless followed from that Article that a national court might refer a question to the Court only if there was a case pending before it and if it was called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. Therefore, when it exercised administrative authority, without at the same time being called on to decide a dispute, the referring body, even if it satisfied the other conditions above, could not be regarded as exercising a judicial function. [13]-[14] Corsica Ferries (C-18/93): [1994] E.C.R. I-1783; Borker (138/80): [1980] E.C.R. 1975; [1980] 3 C.M.L.R. 638; Greis Unterweger (318/85): [1986] E.C.R. 955; Job Centre (C-111/94): [1995] E.C.R. I-3361; Salzmann (C-178/99): [2001] E.C.R. I- 4421; [2003] 1 C.M.L.R. 30; Lutz (C-182/00): [2002] E.C.R. I-547; Längst (C- 165/03): not yet reported, followed. Court exercising administrative authority not acting as "court or tribunal" H6 Where parents who did not use a married name but who jointly exercised custody of a child had not chosen, by declaration before a Registry Office official, either the father's or the mother's name as the birth name of that child, German law provided that the Family Court was competent to transfer the right to determine the child's surname to one of the parents. In the case at issue the Registry officer had merely brought the matter before the referring court without having taken a decision on the matter. There was no dispute, in the case at issue, between the parents, who were in agreement about the name they wished to give to their child, namely the double-barrelled name composed of their respective surnames. In those *1416 circumstances the referring court was exercising administrative authority, without being called on to decide a dispute. Therefore, the Court had no jurisdiction to answer the question referred. [15]-[20]

3 H7 Cases referred to in the judgment: 1. Borker, Re (138/80), June 18, 1980: [1980] E.C.R. 1975; [1980] 3 C.M.L.R Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova (C-18/93), May 17, 1994: [1994] E.C.R. I Dorsch Consult Ingenieurgesellschaft mbh v Bundesbaugesellschaft Berlin mbh (C-54/96), September 17, 1997: [1997] E.C.R. I-4961; [1998] 2 C.M.L.R Gabalfrisa SL v Agencia Estatal de Administración Tributaria (AEAT) (C- 147/98), March 21, 2000: [2000] E.C.R. I-1577; [2002] 1 C.M.L.R Job Centre Coop ARL, Re (C-111/94), October 19, 1995: [1995] E.C.R. I Längst v SABU Schuh & Marketing GmbH (C-165/03), June 30, 2005: not yet reported 7. Lutz GmbH, Re (C-182/00), January 15, 2002: [2002] E.C.R. I Salzmann, Re (C-178/99), June 14, 2001: [2001] E.C.R. I-4421; [2003] 1 C.M.L.R Unterweger, Re (318/85), March 5, 1986: [1986] E.C.R. 955 H8 Further cases referred to by the Advocate General: 10. Azienda Nazionale Autonoma delle Strade (ANAS), Re (C-192/98), November 26, 1999: [1999] E.C.R. I Garcia Avello v Belgian State (C-148/02), October 2, 2003: [2003] E.C.R. I ; [2004] 1 C.M.L.R Holto Ltd, Re (C-447/00), January 22, 2002: [2002] E.C.R. I HSB-Wohnbau GmbH, Re (C-86/00), July 10, 2001: [2001] E.C.R. I Konstantinidis v Stadt Altensteig-Standesamt (C-168/91), March 30, 1993: [1993] E.C.R. I-1191; [1993] 3 C.M.L.R R. (on the application of Bidar) v Ealing LBC (C-209/03), March 15, 2005: [2005] E.C.R. I-2119; [2005] 2 C.M.L.R Victoria Film A/S v Riksskatteverket (C-134/97), November 12, 1998: [1998] E.C.R. I-7023; [1999] 1 C.M.L.R Zhu and Chen v Secretary of State for the Home Department (C-200/02), October 19, 2004: [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48 H9 Representation S. Grunkin, for Leonhard Matthias, a minor. A. Tiemann and A. Dittrich, acting as Agents, for the German Government. A. Goldman, acting as Agent, for the Belgian Government. E.-M. Mamouna, S. Vodina and G. Skiani, acting as Agents, for the Greek Government. E. Braquehais Conesa, acting as Agent, for the Spanish Government. G. de Bergues and A. Bodard-Hermant, acting as Agents, for the French

4 Government. H. G. Sevenster and C. W. Wissels, acting as Agents, for the Netherlands Government. M. Condou-Durande and S. Grünheid, acting as Agents, for the Commission of the European Communities. *1417 Opinion [FN1] AG1 Following its decision in Garcia Avello, [FN2] the Court is again asked to rule on the compatibility with the prohibition of discrimination and the rights of citizenship embodied in the EC Treaty of a national rule relating to the determination of the surname borne by a child. FN1 Opinion of A.G. Jacobs, delivered on June 30, FN2 Case C-148/02: [2003] E.C.R. I-11613; [2004] 1 C.M.L.R. 1; see further points AG47 et seq. below. AG2 The substantive issue raised is whether a national choice of law rule may assign that determination solely to the law of the child's (and/or parents') nationality--in this case, German--without regard to the law of the State of his or her place of birth--in this case, Denmark--with the result that the name is different under the two legal systems. AG3 A preliminary issue, however, concerns the admissibility of the reference: whether the referring court is in fact "called upon to give judgment in proceedings intended to lead to a decision of a judicial nature" [FN3] or whether it is merely acting in an administrative capacity. FN3 See orders in Greis Unterweger (318/85): [1986] E.C.R. 955 at [4]; HSB- Wohnbau (C-86/00): [2001] E.C.R. I-5353 at [11]; and Holto (C- 447/00): [2002] E.C.R. I-735 at [17]; judgments in Job Centre (C-111/94): [1995] E.C.R. I-3361 at [9]; Victoria Film (C-134/97): [1998] E.C.R. I-7023; [1999] 1 C.M.L.R. 279 at [14]; and Salzmann (C-178/99): [2001] E.C.R. I-4421; [2003] 1 C.M.L.R. 30 at [14]. Legal background Treaty provisions cited AG4 The first paragraph of Art.12 EC provides as follows: "Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited." AG5 Article 17 EC 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 and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall

5 be subject to the duties imposed thereby." AG6 Under Art.18(1) EC: "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 and by the measures adopted to give it effect." AG7 Article 234 EC provides: "The Court of Justice shall have jurisdiction to give preliminary rulings concerning: *1418 (a) the interpretation of this Treaty;... Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice." International rules on the attribution of surnames AG8 In order to ascertain the law applicable to the determination of a person's surname when there are connecting factors to more than one legal system, some legal systems refer to the law of the person's domicile, although it appears commoner to refer to the law of his or her nationality, an approach enshrined, for several Member States, in international agreements. AG9 For example, the ICCS (International Commission on Civil Status) Convention on the law applicable to surnames and forenames [FN4] provides that a person's names are to be determined by the law of the state of which he or she is a national. FN4 ICCS Convention No.19, signed at Munich on September 5, 1980; see in particular Arts 1 and 2. AG10 There is also an ICCS Convention on changes of surnames and forenames. [FN5] Under Art.2 of that convention, each contracting state undertakes: "not to authorise changes of surnames or forenames for nationals of another contracting state, unless they are also nationals of the first-mentioned state". FN5 ICCS Convention No.4, signed at Istanbul on September 4, AG11 Finally, a draft ICCS convention on the recognition of surnames was adopted in Madrid on September 25, However, following the court's judgment in Garcia Avello, [FN6] it was decided to review the whole text in an attempt to take more account of the wishes of the individuals concerned.

6 FN6 Cited above, see further points 47 et seq. below. AG12 The ICCS is an inter-governmental organisation whose members include 13 Member States of the European Union, with three further Member States having the status of observer. Of the Member States relevant to the present case, Germany has ratified the Istanbul Convention referred to in point AG10 above, which is in force as between it and the other contracting states; it has signed but not ratified the Munich Convention referred to in point AG9. Denmark, however, is neither an ICCS member nor an observer. National law relevant to the present case AG13 [FN7]Under Danish rules of private international law, all questions of personal status, including those concerning the determination of a person's surname, are governed by the law of that person's domicile as defined in Danish law. FN7 See further, for a more general comparative overview of the situation in the then Member States, points Ag5 et seq. of my Opinion in Garcia Avello, cited above. AG14 *1419 Where the surname of a person domiciled (in particular, at birth) in Denmark is to be determined, Danish law will thus apply. Essentially, if the parents use a single surname, that is the name assigned to the child; if they do not use the same surname, that of either parent may be chosen. However, Danish law also allows an administrative change of surname to one composed of the surnames of both parents joined by a hyphen. AG15 In Germany, under para.1 of the Personenstandsgesetz (Law on civil status), matters relating to civil status are to be recorded by the civil registrar. AG16 Under Art.10(1) of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Law introducing the Civil Code, hereinafter "EGBGB"), a person's name falls to be decided by the law of the state of his or her nationality. AG17 Reference to the law of another country is permitted under Art.10(3) of the EGBGB only where one parent is a national of that country (and, if either parent has more than one nationality, the parents have a free choice as to which national law should apply). In addition, German law may be applied where neither parent has German nationality but at least one of them is resident in Germany, and the national law of the mother's husband may be applied if he wishes to give his name to the child. AG18 Where German law applies, if a child's parents bear different surnames, the name to be attributed to the child is governed by para.1617 of the Bürgerliches Gesetzbuch (Civil Code, hereinafter "BGB"), which provides: "(1) If the parents do not share a married surname but have joint custody of the child, they shall, by declaration before a registrar, choose either the father's or the mother's surname at the time of the declaration to be the surname given to the child at birth... (2) If the parents have not made that declaration within a period of one month

7 following the child's birth, the Familiengericht shall transfer the right to determine the child's surname to one of the parents. Sub-paragraph 1 shall apply mutatis mutandis. The court may lay down a time limit for the exercise of that right. If the right to choose the child's surname has not been exercised on the expiry of that period, the child shall bear the surname of the parent to whom the right was transferred. (3) Where a child is born outside German territory, the court shall not transfer the right to choose the child's surname in accordance with sub-paragraph 2 unless either a parent or the child so requests or unless it is necessary to record the child's surname on a German registration or identity document." AG19 The Familiengericht (Family Court) is the denomination given to a chamber of the Amtsgericht (Local Court) sitting in matters of family law. AG20 Paragraph 46a of the Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit (Law on non-contentious proceedings, hereinafter "FGG") provides: "Before making a decision transferring to one parent the right to determine the surname pursuant to Paragraph 1617(2) of the Civil Code, the Fami-*1420 liengericht shall hear both parents and seek to bring them to an agreed choice. The Familiengericht's decision need not state the grounds on which it is based; no appeal shall lie from it." Facts and proceedings in the present case AG21 The child Leonhard Matthias was born in Denmark in 1998 to parents Stefan Grunkin and Dorothee Paul, both of German nationality. There is no indication that the child himself or either parent has any nationality other than German. Since his birth, he has lived principally in Denmark, where his parents initially lived together. For some months in 2001 and 2002, he lived with them in Niebüll, in Germany; since February 2002 he has lived principally with his mother in Tonder, Denmark, where she has set up residence and established her medical practice, but regularly stays with his father in Niebüll, some 20km distant. AG22 Leonhard Matthias's birth was registered in Denmark. Some months after his birth, the surname "Grunkin-Paul" was entered on his Danish birth certificate by virtue of an administrative certificate attesting to that name, issued in accordance with Danish law. It may be presumed that the certificate was issued on the basis that the child was domiciled in Denmark for purposes of Danish private international law, so that Danish substantive law applied to the determination of his surname. AG23 The parents, who have themselves never used a joint surname, wish to register him with the German authorities in Niebüll, again under the surname "Grunkin-Paul" given to him in Denmark. Pursuant to the German legislation set out above, [FN8] those authorities have refused to recognise that name, insisting that the surname chosen must be either "Grunkin" or "Paul". FN8 See points AG16-AG18. AG24 The parents have challenged that refusal in the German courts, but their

8 challenge was dismissed at last instance on January 7, On February 27, 2003, they were refused leave to bring a final appeal on constitutional grounds before the Bundesverfassungsgericht (Constitutional Court). AG25 Pursuant to para.1617(2) of the BGB, the competent Standesamt (Registrar's Office) has now brought the matter before the Amtsgericht Niebüll, which as Familiengericht must designate the parent who will have the right to choose the child's surname or whose own surname will be given to the child if that choice is not exercised. AG26 That court questions whether the choice of law rule in Art.10 of the EGBGB is valid in the light of Arts 12 and 18 EC, in so far as the determination of surnames is governed by nationality alone. It notes that the child uses a different surname in the country of his birth and residence from that required by the law of his nationality. It finds difficult to reconcile with the principle of freedom of movement the fact that a citizen of the Union should be forced by reason of his nationality to use different names in different Member States. AG27 The Amtsgericht takes the view that, since there is no judicial remedy in national law against the decision which it must take, it is required by the third paragraph of Art.234 EC to refer a question on the interpretation of the EC Treaty to the Court of Justice. AG28 *1421 By order of June 2, 2003, issued on February 23, 2004, it has accordingly sought a ruling on "the interpretation of the EC Treaty in relation to the compatibility of Article 10 of the EGBGB with the EC Treaty". AG29 Written observations have been submitted by the Belgian, French, German, Greek, Netherlands and Spanish Governments and by the Commission. Mr Grunkin, the German, Greek and Spanish Governments and the Commission presented oral argument at the hearing. Admissibility of the reference AG30 Under Art.234 EC, any court or tribunal of a Member State may refer a question on interpretation of Community law if it considers that a decision on the question is necessary to enable it to give judgment in proceedings before it. AG31 According to settled case law, whether a referring body is a "court or tribunal" for that purpose is a question governed by Community law alone. The court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. Moreover, a national court may refer a question to the Court of Justice only if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. A body may thus be a "court or tribunal" within the meaning of Art.234 EC when it is performing judicial functions, but not when exercising other--for example, administrative--functions. Whether a body entrusted with different categories of function is to be regarded as such a "court or tribunal" depends on the capacity in which it is acting when it seeks a ruling from the court. In that regard, it is not relevant that the same body is to be classified as a "court or tribunal" when otherwise configured--or even in the same configuration but exercising powers other than those in the context of which a

9 preliminary ruling is sought. [FN9] FN9 See, for example, Lutz ( C-182/00): [2002] E.C.R. I-547 at [12]; ANAS ( C- 192/98): [1999] E.C.R. I-8583 at [21]-[23], and the case law cited in both. AG32 In that light, the German Government submits, the Amtsgericht is not competent to make a reference in this case. In the context of para.1617(2) of the BGB, that court carries out a purely administrative function which would otherwise fall to a registrar. It does so in the context of a non-contentious procedure, to which the only party is the registrar's office, even though the court must hear both parents before taking its decision; there is in any event no dispute between the parents in the present case. The Amtsgericht does not itself take a decision as to the child's surname, but merely as to the parent entitled to choose that name; if the parent fails to make that choice, it is by operation of law that his or her surname will be given to the child. AG33 The situation in the present procedure, the German Government stresses, should be contrasted with that in the appeals to the ordinary courts already exhausted by the parents. Prior to the present procedure, Leonhard Matthias's parents had already asked the German authorities to recognise the surname given to him in Denmark. They had challenged the refusal to accord that recognition, leading to a final dismissal of their challenge by the Kammergericht (Court of Appeal) in *1422 Berlin, and had sought to challenge the latter decision before the Bundesverfassungsgericht. All those proceedings were properly of a judicial nature; a reference could have been made at any stage, but was not. The conclusion that proceedings of the kind in issue before the Amtsgericht are not intended to lead to a decision of a judicial nature would thus not in other cases rule out any possibility of a reference to the Court of Justice. AG34 At the hearing, the Greek and Spanish Governments supported that view, which was contested, however, by Mr Grunkin and the Commission. AG35 Mr Grunkin stressed particularly that in proceedings of the kind in issue the parents not only have a right to be heard, but are instrumental in determining whether the procedure is initiated at all. AG36 The Commission submitted that the question of admissibility should be assessed on the basis not of the circumstances of the present case, which are unusual, but of the situation which normally gives rise to proceedings of the kind in issue. Usually, the parents are not agreed in choosing a name which is not permitted under German law, but rather disagree over which of their different surnames should be given to the child. That normal situation is clearly and fundamentally distinct from cases such as those of land or company registration dealt with in the court's case law. There is a dispute between two parties, to be settled by a court of law. That court has, moreover, absolute discretion in deciding the case, and is not required simply to apply formal criteria as in those other cases; it must assess the arguments and reach a decision, essentially in the interests of the child. The parents have a right to be heard, and may themselves initiate the procedure. Finally, it is not relevant that another procedural route to achieve the same result is available in German law and may

10 give rise to a request for a preliminary ruling; whether such a request is made or not in one set of proceedings can have no influence on its admissibility in separate proceedings having the same subject-matter. AG37 The reasons advanced by the German Government are certainly persuasive. The procedure governed by paras 1617(2) of the BGB and 46a of the FGG appears to have significant features of administrative rather than judicial proceedings. The availability of a separate, clearly judicial, route supports that view. AG38 It may be noted, moreover, that, because no appeal lies from the Amtsgericht's decision in cases of this kind, the opposite view would render a reference for a preliminary ruling obligatory under the third paragraph of Art.234 EC, a consequence which does not seem consistent with the intended scheme of that article. AG39 However, I also find the Commission's analysis persuasive, focusing as it does on the fundamentally contentious nature of the proceedings in their usual context, with a right for both parties to be heard, and the judicial nature of the decision taken by the Amtsgericht. AG40 That analysis is of course rather less relevant to the specific features of the proceedings in the present case, and those features raise another doubt as to the admissibility of the reference for a preliminary ruling: to what extent is a decision on the question referred necessary to enable the Amtsgericht to give judgment? AG41 As the procedure has been presented to the court, the only decision which the Amtsgericht is called upon, or indeed competent, to take is the designation of the parent entitled to choose the surname to be given to the child. It has no power to *1423 specify what that name will be. In the present case, it seems clear that, whichever parent is designated, the choice will be "Grunkin-Paul" and it is not until that stage, when the matter is out of the Amtsgericht's hands, that the rules on choice of surname will come into play, possibly clashing with Community law. AG42 If that is a correct statement of the situation under German law, then it is difficult to see how the Amtsgericht could apply the court's ruling, whatever it may be, to the question referred. AG43 However, it may be that the powers of the Amtsgericht in such matters are greater than they have been presented, or that it intends the registrar's office to be bound--as it must be--by the ruling sought. In those circumstances, it might be unwise for the court to decline the question on the ground that an answer was not necessary for the national court to give judgment; ultimately, it is only the national court which can determine whether that is so. AG44 Consequently, while conscious of the doubts as to whether the criteria for a reference under Art.234 EC are fully met, I consider it preferable to answer the question raised. The question referred AG45 Questions concerning the determination of surnames do not often arise in the context of Community law. There have, however, been two previous

11 references to the court in this field: Konstantinidis [FN10] and Garcia Avello. [FN11] FN10 Case C-168/91: [1993] E.C.R. I-1191; [1993] 3 C.M.L.R FN11 Cited above. AG46 In Konstantinidis, the court found it contrary to the prohibition of discrimination on grounds of nationality for a Greek national to be obliged to use, in the pursuit of his occupation in another Member State, a transliteration of his name which modified its pronunciation if the resulting distortion entailed the risk that potential clients might confuse him with other persons. AG47 In Garcia Avello, it considered that Arts 12 and 17 EC precluded the Belgian authorities from refusing, as a matter of course, to grant an application, made on behalf of minor children resident in Belgium but having dual Belgian and Spanish nationality, for the surname of those children to be changed to that to which they were entitled according to Spanish law and tradition. AG48 In both cases, the court first considered whether the situations involved fell within the scope of Community law--and decided that they did-- before examining the questions posed. In Konstantinidis, the link was based on the fact that the applicant was alleging an interference with the exercise of an economic freedom, namely freedom of establishment. In Garcia Avello--by which time citizenship of the Union had been introduced, with its attendant rights--the court simply considered that a link with Community law existed in regard to the children in question, "who are nationals of one Member State lawfully resident in the territory of another Member State". [FN12] FN12 See para.[27]; see also Zhu and Chen (C-200/02): [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48 at [19]. AG49 It seems clear that the latter consideration must apply also in the case of Leonhard Matthias. AG50 Although the Member States are competent to determine the rules governing a person's surname, they must nonetheless comply with Community law when *1424 exercising their competence. Citizens of the Union may rely in that regard on the rights conferred on them by the Treaty, in particular that set out in Art.12 EC not to suffer discrimination on grounds of nationality and that set out in Art.18(1) EC to move and reside freely in the territory of the Member States. [FN13] FN13 See Garcia Avello at [25] & [29]. AG51 In Garcia Avello, [FN14] the court noted in essence that Belgian practice treated in the same way those with Belgian nationality alone and those with dual Belgian and Spanish nationality, with the result that the latter would have different surnames under the two legal systems. That being likely to give rise to

12 practical difficulties, there was discrimination on grounds of nationality. The principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. FN14 See paras [31]-[37]. AG52 All the parties having submitted written observations consider that there is no such discrimination in the present case. At the hearing, even Mr Grunkin did not appear to argue that there was discrimination on grounds of nationality. I agree that there is none. AG53 It is clear from the relevant German legislation [FN15] that all those who have German nationality alone are treated in the same way, and that all those who have (or whose parents have) more than one nationality are treated differently, but quite without discrimination as regards their nationality. FN15 See points AG16 and AG17 above. AG54 Leonard Matthias is, however, from a practical point of view, in a position closely comparable to that of the Garcia Avello children if in the Member State of his nationality a different surname must be registered from that which he bears in the Member State of his birth. While the practical difficulties which he is likely to encounter may not stem from discrimination on grounds of nationality, they constitute a clear obstacle to his right as a citizen to move and reside freely within the territory of the Member States. Although such difficulties may be of a similar kind to those encountered by Mr Konstantinidis, the combined effects of Arts 17 and 18(1) EC mean that it is now unnecessary to establish any economic link in order to demonstrate an infringement of the right to freedom of movement. AG55 In addition to practical matters, which may range from the merely annoying to--in the climate of suspicion which has followed the events of September 11, the extremely serious, a person's name is a fundamental part of his or her identity and private life, the protection of which is widely recognised in national constitutions and international instruments. [FN16] FN16 See my Opinions in Konstantinidis at AG35-AG40, and in Garcia Avello, in particular at points AG5, AG27 & AG36, together with the sources cited there. AG56 It thus seems to me totally incompatible with the status and rights of a citizen of the European Union--which, in the court's phrase, is "destined to be the fundamental status of nationals of the Member States" [FN17]--to be required to bear different names under the laws of different Member States. FN17 See, most recently, Bidar (C-209/03): [2005] E.C.R. I-2119; [2005] 2 C.M.L.R. 3 at [31]. Conclusion

13 AG57 I am therefore of the opinion that the court should give the following answer to the question referred by the Amtsgericht Niebüll: *1425 A rule of a Member State which does not allow a citizen of the European Union, whose name has been lawfully registered in another Member State, to have that name recognised under its own laws is not compatible with Arts 17 and 18(1) EC. Judgment 1 This reference for a preliminary ruling concerns the interpretation of Arts 12 and 18 EC. 2 The reference was made in the course of proceedings brought by the Standesamt Stadt Niebüll (the Registry Office, Niebüll) ("the Standesamt") in order to transfer the right to determine a child's surname to one of his parents. They had previously refused to give the child any name other than a doublebarrelled name composed of their respective surnames, under which that child was already registered in Denmark where he was born. National law Private international law 3 Paragraph 10(1) of the Law introducing the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch) ("the EGBGB") provides: "A person's name falls to be decided by the law of the State of his or her nationality". Civil law 4 As regards the determination of the name of a child whose parents bear different surnames, para.1617 of the German Civil Code (Bürgerliches Gesetzbuch) ("the BGB") provides: "(1) If the parents do not share a married surname but have joint custody of the child, they shall, by declaration before a registrar, choose either the father's or the mother's surname at the time of the declaration to be the surname given to the child at birth.... (2) If the parents have not made that declaration within a period of one month following the child's birth, the Familiengericht shall transfer the right to determine the child's surname to one of the parents. Sub-paragraph 1 shall apply mutatis mutandis. The court may lay down a time limit for the exercise of that right. If the right to choose the child's surname has not been exercised on the expiry of that period, the child shall bear the surname of the parent to whom the right was transferred. (3) Where a child is born outside German territory, the court shall not transfer the right to choose the child's surname in accordance with sub-paragraph 2 unless either a parent or the child so requests or unless it is necessary to record the

14 child's surname on a German registration or identity document." 5 Paragraph 46 of the Law on non-contentious proceedings ( Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) states: *1426 "Before making a decision transferring to one parent the right to determine the surname pursuant to Paragraph 1617(2) of the [BCG], the Familiengricht shall hear both parents and seek to bring them to an agreed choice. The Familiengericht's decision need not state the grounds on which it is based; no appeal shall lie from it". The procedure in the main proceedings and the question referred for a preliminary ruling 6 The child Leonhard Matthias was born on June 27, 1988 to a married couple, Dorothee Paul and Stefan Grunkin, both of German nationality. The child, who also had German nationality, was living in Denmark at the date of the order for reference. 7 In accordance with a certificate (" navnebevis") issued by the competent Danish authority attesting to that name, the child was given, in accordance with Danish law, the surname Grunkin-Paul, which was entered on his birth certificate drawn up in Denmark. 8 The Registrar's Office in Germany refused to recognise the surname of the child of Ms Paul and Mr Grunkin as it had been determined in Denmark on the ground that, under para.10 of the EGBGB, the name of a person falls to be decided under the law of the country of his nationality, and that German law does not allow a child to bear a double-barrelled name composed of his father's and mother's surnames. The actions brought by Ms Paul and Mr Grunkin against that refusal were dismissed at final instance by the judgment of the Kammergericht (Higher Regional Court), Berlin. The Bundesverfassungsgericht (Federal Constitutional Court) refused to examine the constitutional complaint brought in the child's name. 9 Ms Paul and Mr Grunkin, who had divorced in the meantime, did not use a common married name and refused to determine the name of their child in accordance with para.1617(1) of the BGB. 10 The Standesamt brought the matter before the Amtsgericht (Local Court), Niebüll, as Familiengericht, in order to transfer the right to determine the child's surname to one of his parents in accordance with para.1617(2) and (3) of the BGB. Taking the view that, if Community law requires that the name which is valid under Danish law be recognised under the German legal system, the proceedings pending before it would have no purpose, the Amtsgericht Niebüll decided to stay the proceedings before it and to refer the following question to the court for a preliminary ruling: "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 by 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?"

15 The jurisdiction of the court 11 Under the first paragraph of Art.234 EC, the Court of Justice has jurisdiction to give preliminary rulings concerning, inter alia, the interpretation of the EC Treaty *1427 and of the acts of the institutions of the European Community. The second paragraph of that article adds that: "where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon." The third paragraph of Art.234 states that: "where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice". 12 In order to determine whether a body making a reference is a court or tribunal for the purposes of Art.234 EC, which is a question governed by Community law alone, the court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Dorsch Consult (C-54/96): [1997] E.C.R. I-4961; [1998] 2 C.M.L.R. 237 at [23] and the case law cited; Gabalfrisa (C /98): [2000] E.C.R. I-1577; [2002] 1 C.M.L.R. 13 at [33]; Salzmann (C-178/99): [2001] E.C.R. I-4421; [2003] 1 C.M.L.R. 30 at [13]; and Lutz (C-182/00): [2002] E.C.R. I-547 at [12]). 13 Furthermore, whilst Art.234 EC does not make a reference to the court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers a question for a preliminary ruling (see Corsica Ferries (C-18/93): [1994] E.C.R. I-1783 at [12]), it follows nonetheless from that article that a national court may refer a question to the court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see orders in Borker (138/80): [1980] E.C.R. 1975; [1980] 3 C.M.L.R. 638 at [4]; and in Greis Unterweger (318/85): [1986] E.C.R. 955 at [4]; and judgments in Job Centre (C- 111/94): [1995] E.C.R. I-3361 at [9]; and Salzmann at [14]; Lutz at [13]; and Längst (C-165/03): not yet reported at [25]). 14 Therefore, when it exercises administrative authority, without at the same time being called on to decide a dispute, the referring body, even if it satisfies the other conditions mentioned in para.[12] of the present judgment, cannot be regarded as exercising a judicial function (see Job Centre at [11]; Salzmann at [15]; and Lutz at [14]). 15 In that connection it must be observed that where parents who do not use a married name but who jointly exercise custody of a child have not chosen, by declaration before a Registry Office official, either the father's or the mother's name as the birth name of that child, German law provides that the

16 Familiengericht is competent to transfer the right to determine the child's surname to one of the parents. 16 It follows that the Familiengericht is required to adopt a decision without a Registry Office official having taken, or been able to take, an earlier decision on the *1428 matter. Thus, it is apparent from the file that, in the case in the main proceedings, the Standesamt merely brought the matter before the Amtsgericht Niebüll. 17 In those circumstances it must be held that the Amtsgericht Niebüll exercises administrative authority, without at the same time being called on to decide a dispute. 18 It is true that there was a dispute between the parents and the administration as to the possibility of registering the double-barrelled name "Grunkin-Paul" in Germany. However, that dispute was settled at last instance by the Kammergericht Berlin and is not the subject of the proceedings before the Amtsgericht Niebüll. 19 Furthermore, there is no dispute, in the case in the main proceedings, between the parents, since they are in agreement about the name they wish to give to their child, namely the double-barrelled name composed of their respective surnames. 20 It is clear from all of the foregoing that, in those proceedings, the Amtsgericht Niebüll cannot be regarded as exercising a judicial function. Therefore, the court has no jurisdiction to answer the question referred by the Amtsgericht Niebüll in its decision of June 2, Costs 21 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the Amtsgericht Niebüll, the decision on costs is a matter for that court. Costs incurred in submitting observations to the court, other than the costs of those parties, are not recoverable. R1 Order On those grounds, the court (FIRST CHAMBER) HEREBY RULES:The Court of Justice of the European Communities has no jurisdiction to answer the question referred by the Amtsgericht Niebüll in its decision of June 2, (c) Sweet & Maxwell Limited [2006] 2 C.M.L.R. 58