Il Nome Suo Nessun Saprà...: A Commentary On The Cjeu Bogendorff Von Wolffersdorff Ruling On The Role Of Names Recognised Past Times Other Fellow Member States

Jacques BELLEZIT, Université de Strasbourg

One of the original criticisms aimed at the European Union is that it gets involved intimately alongside matters which are, at to the lowest degree prima facie, exterior of its specified competences, defined specially inwards Articles iii to vi of the TFEU.

Even if the regulation of the attribution of competences is firmly set into European Union Law together with recognized equally legally binding inwards gild for the European Union to endure actually “based on the dominion of Law” (Les Verts judgment), it has non prevented the Grand Duchy of Luxembourg Court from developing a large vision of its jurisdictional ability over European Union law, equally good equally a sure enough jealousy, set downwards ab initio inwards the history of European structure (see Costa v ENEL).

The Court has gained influence beyond the textual boundaries of its judicial power, express to ensure the observance of the constabulary inwards “in the interpretation together with application of the Treaties” (Article 19(1) TEU): originally express to litigation over purely trading relationships, it deals alongside  civil condition together with nationality matters, which are traditionally the save of sovereign States (see the second Nottebohm judgment).

The recent Bogendorff von Wolffersdorf judgement, issued past times the European Court of Justice on June 2nd 2016 (C-438/14) is interesting, equally previous intrusions of the CJEU amid matters such equally nationality (Rottmann) or civil condition (Avello) on the behalf of the costless sweat of European Union citizens (Article 20(2) TEU) had been criticized. The recent ruling seems to confirm that the Court has taken this criticism into account.

Facts

Mr Nabiel Peter Bogendorff von Wolffersdorff, a High German national acquired British nationality inwards 2004, changing his name, inwards accordance alongside British law, into “Peter Mark Emanuel Graf von Wolffersdorff Freiherr von Bogendorff”. This British name, equally good equally the add-on of the noble titles of “Graf” together with “Freiherr” (“Earl” together with “Baron” inwards English) were non recognized past times the regime of the town of Karlsruhe on the grounds of article 48 of the Law introducing the Civil Code (hereafter the “EGBGB”). The District Court of Karlsruhe, beingness seized past times the applicant to number an gild to run into his British refer recognized past times the metropolis of Karlsruhe, asked the CJEU for a preliminary ruling on the interpretation of European Union constabulary on citizenship.

The original involvement of this judgment is that the preliminary ruling deals alongside the inquiry of Article 48 of the EGBGB, inserted into High German domestic constabulary afterward the CJEU sentence inwards Grunkin-Paul, inwards which High German international private constabulary norms dealing alongside names attribution (and specially refusing the utilization inwards Deutschland of the names of the 2 parents of a High German national born inwards Kingdom of Denmark equally a theatre unit of measurement name) were said to endure opposite to liberty of sweat (Art 21 TFEU – ex Article eighteen TEC).

The Bogendorff von Wolffersdorff ruling states, inwards a nutshell, that “the regime of a Member State are non natural springtime to recognize the refer of a citizen of that Member State when […] a refusal of recognition is, inwards that context, justified on populace policy grounds, inwards that it is appropriate together with necessary to ensure compliance alongside the regulation that all citizens of that Member State are equal earlier the law.”

Comments

This novel ruling does non alone grant an “EU constabulary assent” to the change of High German constabulary next the Grunkin-Paul case, but likewise seems to bear witness that the Grand Duchy of Luxembourg Court has taken into describe of piece of occupation organisation human relationship the criticisms of its legal activism into civil condition of Member States: This case-law follows a similar ruling, Sayn-Wittgenstein, inwards which an Austrian citizen living inwards Germany, yell for unsucessfully for the recognition of her High German refer “Fürstin von Sayn-Wittgenstein” (“Princess Sayn-Wittgenstein”)  in Austria. In both cases, the CJEU ruled that Article 21 TFEU does non preclude national regime from refusing the recognition of names including noble titles on populace policy grounds (especially the regulation of equality earlier the law).

The explanation of this fact is that the both Austrian together with High German legal systems, at the constitutional level, guarantee equality earlier the constabulary past times forbidding the utilization of noble titles inwards names, together with the Grand Duchy of Luxembourg Court does non desire to set inwards into opposition alongside Member States’ constitutional identities (paras 64 together with 65 of the judgment).

Although the Court has already recognized the importance of human dignity inwards High German constitutional constabulary together with constitutional identity, which could justify a restriction of the liberty of services (Omega judgment), it has skipped the chance to define inwards this example law, the notion of national constitutional identity equally debated past times scholars, fifty-fifty though the protection of constitutional identity is guaranteed past times the Treaties (Article 4(2) TEU).

So the Bogdendorff von Wolffersdorff  judgement has recognized that banning the utilization of noble titles, ranks together with names falls inside the range of Member States’s constitutional identity.  Thus, inwards accordance alongside the regulation of subsidiarity, the Grand Duchy of Luxembourg Court, has no jurisdiction over this subject, letting domestic courts bargain alongside those matters inwards accordance alongside the regulation of proportionality (paras 78 together with 79 of the judgment).

This ruling reinforces the dissimilar interpretation of Article 21 TFEU (ex Article eighteen TEC) inwards dissimilar situations. On the i hand,  this Article forbids, inwards to a greater extent than or less situations, the refusal to recognise a refer recognised past times regime of a Member State (Grunkin-Paul together with Garcia Avello). But on the other hand, the Article leaves a margin of appreciation (subject to guidelines) for domestic courts inwards others cases addressing the same subject.

This is problematic when nosotros know that names are purpose of the identity of the European Union citizen, seen equally the “fundamental status” of nationals of Member States (Grzelczyk), equally good equally purpose of the identity of the private mortal to a greater extent than ofttimes than non speaking (ECtHR rulings inwards Kemal Taskin & Others v Turkey together with Burghartz v Switzerland).

Barnard & Peers: chapter 13

Photo credit: e-perputstakaan.com

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