11 Colum. J. Eur. L. 705 (2005)
Johan Verlinden. Assistant KULeuven.
THE FACTUAL BACKGROUND
This case concerns the surname borne by children in Belgium to a married couple of mixed nationality who were residents there. The father, Mr Garcia Avello, is a Spanish national, the mother, Mrs Weber, is Belgian, and the children have dual Belgian-Spanish nationality.
On registration of their births in Belgium, the children were given, according to Belgian law, the surname borne by their father, Garcia Avello.
The children have also been registered with the consular section of the Spanish Embassy in Brussels under the surname Garcia Weber, according to Spanish law – i.e. the first element of their father’s surname and the (first) element of their mother’s surname.
The parents of the children applied to the Belgian authorities to have the children’s surname changed to Garcia Weber so that it reflected the Spanish pattern. The parents pointed out that the Spanish system of surnames was deeply rooted in Spanish law, tradition and custom to which the children felt more intimately related. For the children to bear the surname of Garcia Avello suggested, under that system, that they were siblings rather than children of their father and deprived them of any link by name to their mother. The requested change would mean that the children could bear the same surname in Belgium as in Spain.
The Belgian Ministry of Justice considered there was no adequate reason to accept the request because any request for the mother’s surname to be added to the father’s, for a child, is usually refused on the ground that, in Belgium, children bear their father’s surname.
Mr Garcia Avello challenged that refusal before the Supreme Administrative Court in Belgium. He held that the decision infringed both the Belgian Constitution and Article 18 EC because it treated two different situations – that of children with purely Belgian nationality and that of those with dual nationality – in the same way without any objective justification. The Supreme Administrative Court asked the European Court of Justice (hereinafter “ECJ”) if the Belgium rule is not in violation of Article 18 EC.
INTRODUCTION: PERSONAL NAMING SYSTEMS
In Europe people generally bear names of two kinds. There are given names which are seen as a personal, intimate and individual identification, and there are surnames, which almost always identify a person by reference to his or her family or lineage and are in that connection often viewed as an essential part of inalienable birthright.
The rules in the Member States governing the ways in which surnames are determined and may be changed vary considerably.
A. Detennination of the Surname Given to a Child.
In most Member States, children bear the same surname as their father. In other Member States, a degree of choice is available to the parents, though the choice is generally restricted to the parents’ own surname.
The possibility of combining both parents’ surnames in the child’s surname is the subject of conflicting rules in different Member States. In some, it is specifically allowed or even imposed, in others specifically prohibited. In Denmark, it is possible to hyphenate the two surnames but not to combine them without a hyphen.
In Spain, the relevant rules are to be found essentially in Articles 108 and 109 of the Civil Code. The general and traditional rule is that each child born to a married couple bears a double surname, composed of the first element of the father’s surname followed by the first element of the mother’s surname. In 1999, Article 109 was amended to allow parents the possibility to choose, before the birth of their first child, to give all their children a surname comprising those same elements but in reverse order, so that the first element of the mother’s surname comes first.
The rule in Portugal appears to be considerably more flexible. A child may bear a surname composed of up to four elements chosen among the surnames borne by either or both parents or, in effect, by one or more grandparents, although it seems that surnames are in fact generally formed along lines witch mirror the Spanish system, with the understanding that the order of the paternal and maternal elements is usually reversed.
The greatest liberty of choice within the European Union seems to be in the United Kingdom, where there is essentially no legal rule determining the surname born by a child. Consequently, on registration of a birth, the parents may in theory choose any surname they wish even if, as a matter of social reality, the father’s surname overwhelmingly prevails.
In Belgium, the rule established in Article 335 of the Civil Code is at present essentially that a child bears only the father’s surname unless either paternity is not established or the father is married to a woman other than the mother, in both of which cases the child bears the mother’s surname.
B. Changes of Surname.
There is wide variation between the Member States regarding to the circumstances in which a person may acquire or use a surname other than the one appearing on his or her birth record. For the most part, the connection between an individual and his or her surname is regarded as lifelong, both in law and as a matter of social practice. Exceptions to the general principle are, however, possible.
The most liberal position is to be found in the United Kingdom, where it is possible to either simply use a different name in daily life, without going through any formality whatever, or to change one’s name officially by deed poll or statutory declaration, a process which in general requires no authorization. In most other Member States, however, an official change of name must be approved by the authorities and some good cause for the change must be shown.
In Belgium, a change of surname is authorized only exceptionally and upon proof that there are serious grounds for the change. Such grounds may include that the current surname gives rise to ridicule or is a foreign name that makes it more difficult for the holder to integrate into Belgian society. One specific ground considered to be serious is where children of the same parents bear different surnames, for instance, one determined by Spanish law
and the other determined by Belgian law. In Spain too, good cause must be shown. In both countries, the possibility of applying for a change of surname is confined to the State’s own nationals.
C. Applicable Law.
In the event of a conflict between legal systems governing a person’s surname, most Member States give priority to the law of his or her nationality as the law governing the personal status. Denmark and Finland however apply their own law on persons domiciled in their territory. In Sweden, Swedish law applies to all Nordic citizens domiciled there and the law of nationality to all other nationals. In Ireland and the United Kingdom there is no specific rule governing a conflict of laws. There is little need for such a rule since the laws of these Member States are sufficiently flexible to allow attribution or use of a name formed in accordance with any system.
In the case of a double Belgian-foreign nationality, the Belgian authorities only take the Belgian nationality into consideration3. Article 3 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws provides that a person who has two or more nationalities may be regarded as its national by each of the States whose nationality he possesses. Although Spain has not ratified that convention, both Belgium and Spain approach dual nationality in the same way.