PRESS RELEASE No 43/03
22 May 2003
Opinion of Advocate General Francis Jacobs in Case C-148/02
Carlos Garcia Avello v Belgium
IN THE OPINION OF THE ADVOCATE GENERAL A REFUSAL TO REGISTER A CHILD
OF DUAL NATIONALITY WITH THE SURNAME OF BOTH PARENTS FOLLOWING THE SPANISH TRADITION
CONSTITUTES DISCRIMINATION ON GROUNDS OF NATIONALITY PROHIBITED BY COMMUNITY LAW.
He considers that such a refusal cannot be justified by reference to an
overriding public interest that each person in the same State derives their surname
in the same manner.
This application was refused as contrary to Belgian practice. Mr Garcia Avello challenged
that refusal before the Belgian Conseil dEtat; that court subsequently referred a question
to the Court of Justice of the EC as to whether the refusal
was contrary to Community law, in particular the principles relating to citizenship of
the European Union and the freedom of movement for citizens.
Advocate General Jacobs delivers his Opinion in this case today.
The view of the Advocate General is not binding on the Court of Justice. The task of an Advocate General is to propose to the Court, in complete independence, a legal solution to a case. |
Advocate General Jacobs considers that the situation falls within the scope of Community
law. Whilst it is true that Community law on citizenship and freedom of
movement does not apply to cases between a State and its own nationals,
the Advocate General believes that the case, concerns not only the children, who
are Belgian nationals, but also Mr Garcia Avello, a Spanish national who has
exercised his Community right to move to and work in another Member State.
The refusal concerns Mr Garcia Avello, as the person who instituted legal proceedings,
and the issue, being the transmission of surnames from one generation to the
next, is of importance to both generations. Moreover the Advocate General notes that,
whilst the children are Belgian nationals, they also have Spanish nationality, a fact
which is inseparable from their fathers exercise of his right to free movement.
Advocate General Jacobs considers that following the introduction of Community citizenship, discrimination on
grounds of nationality is clearly prohibited in all situations where Community law is
applicable and that there is no need to establish a specific interference with
a specific economic freedom. The Advocate General notes that it must then be
established whether the refusal by the Belgian authorities discriminates on grounds of nationality
and whether this discrimination can be justified.
The Advocate General states that the refusal amounts to discrimination on grounds of
nationality, prohibited by Community law, as it treats objectively different situations in the
same way. In the opinion of Advocate General Jacobs, as a change of
surname is allowed under Belgian law when serious grounds are given for the
application, a systematic refusal to grant a change when the grounds given are
linked to or inseparable from the possession of another nationality, must be regarded
as discriminating on grounds of nationality. This practice accords the same treatment both
to those who, as a result of possessing a nationality other than Belgian,
bear a surname or who have a parent whose surname was not formed
in accordance with Belgian rules and to those who possess only Belgian nationality
and bear a surname formed according to those rules, despite the fact that
their situations are objectively different.
Advocate General Jacobs considers that this discrimination cannot be justified as there is
no overriding public interest that one particular pattern of surname transmission should always
prevail for the citizens of a Member State within its territory. He notes
that whilst the aim of preventing confusion over identity by limiting the right
to change surnames is a legitimate one, the dangers should not be exaggerated
and that official registration of a change of name will reduce the chance
of confusion. Finally Advocate General Jacobs states that the concept of free movement
is not based on the notion of a single move to one Member
State followed by integration into that State, but rather on the possibility to
move repeatedly, or even continually within the Union. As such it cannot be
argued that the principle of non-discrimination seeks to ensure the integration of migrant
citizens in their host State.
Note: After delivery of the Advocate General's Opinion, the judges of the Court
of Justice of the EC begin their deliberation on the judgment, which they
will deliver at a later date.
Available in Danish, Dutch, English, French, German and Spanish. For the full text of the Opinion, please consult our internet page www.curia.eu.int at approximately 3 pm today. For further information please contact Christopher Fretwell: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731. |