Instantie

Europees Hof voor de rechten van de mensen

Samenvatting

Verzoekster, gehuwd en met vier binnen het huwelijk geboren kinderen, wil dat
de achternaam van de dochters in het gezin wordt gewijzigd in haar achternaam
en de twee zonen de achternaam van haar echtgenoot behouden. Deze
keuzemogelijkheid is er in de Nederlandse wetgeving niet. De
staatssecretaris, de Rechtbank Den Haag en de Raad van State wijzen haar
verzoek af. Zij achten de wetgeving niet in strijd met art. 26 IVBPR. Het
Europese Hof voor de Rechten van de Mens stelt dat staten in zaken
betreffende naamswijziging veel vrijheid hebben om een eigen regeling vast te
stellen en oordeelt dat de Nederlandse regering geen blijk geeft van
schending van de rechten op grond van art. 8 en 14 EVRM. Het hof vindt de
onmogelijkheid om de dochters van verzoekster een andere achternaam te geven
geen inbreuk op het privé-leven van verzoekster; voorts weegt volgens het hof
het algemeen belang van de handhaving van de nodige stabiliteit op tegen het
belang van verzoekster om haar familienaam te kunnen voortzetten.

Volledige tekst

(…)
A.Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as
follows.

The applicant and her husband have two sons, born in 1988 and 1991
respectively, and two daughters, born in 1994 and 1997 respectively.

Pursuant to the relevant rules of Dutch law, these children bear the surname
of the applicant’s husband. As the applicant and her husband wished their
sons to bear the surname of their father and their daughter to bear the
surname of the applicant, the applicant filed a request on 12 September 1994
to change the surname of her, at that time still unborn, daughter.

On 24 November 1994, the State Secretary of Justice (Staatssecretaris
van Justitie) rejected the applicant’s request. The applicant’s
subsequent appeal to the Regional Court (Arrondissementsrechtbank)
of The Hague was rejected on 23 May 1996. The applicant filed a further
appeal with the Administrative Law Division (Afdeling
Bestuursrechtspraak) of the Council of State (Raad van
State).

In its decision of 25 September 1997, the Administrative Law Division
rejected the applicant’s appeal against the decision of 23 May 1996. It noted
that, under the relevant domestic rules, a minor child’s surname could be
changed into the mother’s surname upon a request to this effect, when the
mother – after the dissolution of the marriage or termination of the
non-marital cohabitation with the father – has raised the child as an
unmarried parent for at least three years immediately prior to the request.
It further noted that permission to change the surname of a minor child could
also be granted when, considering the particular circumstances of the case, a
refusal to do so would entail serious damage to the child’s physical or
mental health.

It recalled that the State Secretary had based the refusal of the applicant’s
request on a finding that the relevant rules on the chance of surnames did
not foresee in a request like the applicant’s one and that it had not been
established that there were such special circumstances on the basis of which
a strict application of the relevant rules would not be acceptable ex
aequo et bono. It further noted that the Regional Court had also not
found such circumstances.

Insofar as the applicant argued that the Dutch rules on surnames are contrary
to Article 26 of the International Covenant on Civil and Political Rights in
that they amount to a discriminatory treatment between men and women, the
Administrative Law Division held that the request at issue only concerned one
of the applicant’s children whereas no such request had been made for her
other two children. The refusal at issue was not found to be discriminatory
as it achieved that all children having the same parents bear the same
surname and that therefore no difference between boys and girls was made.
Moreover, in the Act of 10 April 1997 amending Articles 5 and 9 of Book I of
the Civil Code (Burgerlijk Wetboek), the legislator had, in the
meantime, created the possibility for parents to choose themselves which of
their respective surnames their children will bear, albeit with the
restriction that all of their children must bear the same surname. It held
that this restriction was in conformity with its consideration as to the
alleged discriminatory character of the refusal of the applicant’s request.

As to the applicant’s argument that the refusal of her request was in
violation of Article 8 of the Convention, the Administrative Law Division
held that there was no interference, as such, with the applicant’s rights
under this provision in that the refusal did not alter the applicant’s
personal situation or her family life with her daughter. As to the question
whether the Netherlands were under a positive obligation under Article 8 of
the Convention to grant the applicant’s request, it was held that the
applicant’s personal interest, i.e. the continuation of her family name by
her daughter’s surname, was outweighed by the general interest in preserving
the stability required in the legal rules governing names (‘de
handhaving van de nodige stabiliteit in het namenrecht‘) and that,
therefore, the Netherlands authorities were not under a positive obligation
to grant the applicant’s request.

B. Relevant domestic law and practice

Until 1 January 1998, a child born in wedlock or a child whose father had
recognised his paternity automatically obtained the father’s surname. Only
limited possibilities existed to obtain change of one’s surname.

On 1 January 1998, as a result of the entry into force of the Act of 10 April
1997 amending Articles 5 and 9 of Book I of the Civil Code, the rules
governing surnames were changed.

Under the new situation, married parents may make a joint formal declaration,
either before or when formally registering the birth of their first child,
stating whether the child will bear the surname of the father or the mother.
This declaration will continue to apply to any children born subsequently to
the couple. In the absence of any declaration, a child will automatically
obtain the father’s surname.

If the parents are not married, the child will obtain the mother’s surname;
also where the father has recognised his paternity. If unmarried parents wish
their child to bear the father’s surname, a joint formal declaration to this
effect must be made at the time of the father’s recognition of his paternity.

The change in the law also included transitory rules in respect of children
born before 1 January 1998, provided that the oldest child, at the time the
parents make their formal declaration, has not yet attained the age of
twelve. These transitory rules remained in force until 1 January 2000. Under
these transitory rules, parents may make a joint formal declaration to the
effect that their child or children bear the mother’s surname. Any children
born subsequently to the couple will then automatically obtain the mother’s
surname.

COMPLAINTS

The applicant complains that the former Dutch rules on surnames constitute a
flagrant violation of the principle of non-discrimination as well as an
unlawful interference with her right to respect for her private and family
life. She relies on Article 8 and 14 of the Convention as well as on Article
26 of the International Covenant on Civil and Political Rights and Articles 2
and 16 of the Convention on the Elimination of All Forms of Discrimination
against Women.

The applicant further submits that also the new rules on surnames are not in
conformity with Articles 8 and 14 of the Convention. She argues that it is
not the legislator but those involved – i.e. the parents – who must have the
opportunity to choose the surname of their children. However, having made
that choice for the parents, the legislator continues to interfere with the
right to respect for a person’s private and family life by depriving those
directly involved of the right to choose a name themselves. She argues that
parents must have equal rights in choosing the surname for their children.
Under the new rules, in case of a conflict between the parents, the child
will automatically obtain the father’s surname. As, for the purpose of
passing on her surname to her children, a mother’s right to choose is
therefore restricted by the father’s power of veto, the new rules are also
contrary to Article 14 of the Convention in conjunction with Article 8 in
that it constitutes discrimination on the mere grounds of sex without any
objective justification;

PROCEDURE
The application was introduced on 23 March 1998 and registered on 26 August
1998.

On 1 November 1998, by operation of Article 5 2 of Protocol No. 11 to the
Convention, the case fell to be examined by the Court in accordance with the
provisions of that Protocol.

THE LAW
The applicant complains that both the former Dutch rules on surnames as well
as the new rules in force as from 1 January 1998 are contrary to Article 8 of
the Convention, both taken alone and in conjunction with Article 14 of the
Convention. She further relies on Article 26 of the International Covenant on
Civil and Political Rights and Articles 2 and 16 of the Convention on the
Elimination of All Forms of Discrimination against Women.

1.The Court observes in the first place that, under the terms of Article 19
of the Convention, it is not competent to examine the applicant’s complaints
under the International Covenant on Civil and Political Rights and the
Convention on the Elimination of All Forms of Discrimination against Women.

2.Secondly, the Court notes that the relevant domestic rules have changed on
1 January 1998, that these new rules included a transitory regime for
children born before 1 January 1998 which regime was applicable to the
applicant’s children, and that, in the instant case, the Administrative Law
Division has had regard to these new rules in its decision of 25 September
1997. In this situation, the Court is of the opinion that it is not necessary
to examine the compatibility of the former rules with Articles 8 and 14 of
the Convention, but will limit its examination to the question whether or not
the rules currently in force are in conformity with these two provisions of
the Convention.

Article 8 of the Convention reads as follows:

‘1.Everyone has the right to respect for his private and family life, his
home and his correspondence.

2.There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.’

Article 14 of the Convention provides:

‘The enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.’

3.The Court recalls that, although Article 8 of the Convention does not
contain any explicit reference to names, a person’s name does concern his or
her private and family life as it constitutes a means of personal
identification and a link to a family (cf. Stjerna v. Finland judgment of 25
November 1994, Series A no. 299-B, p. 60, 37; and Guillot v. France
judgment of 24 October 1996, Reports of Judgments and Decisions 1996-V, p.
1602, 21).

The refusal of the Netherlands authorities to grant the applicant’s request
cannot, in the view of the Court, necessarily be regarded as an interference
in the exercise of the applicant’s right to respect for her family and
private life (cf. Stjerna v. Finland judgment, loc. cit., 38).

However, the Court reiterates that the essential object of Article 8 of the
Convention is to protect the individual against arbitrary action by the
public authorities. There may in addition be positive obligations inherent in
effective ‘respect’ for private and family life. However, the boundaries
between the State’s positive and negative obligations under this provision do
not lend themselves to precise definition. The applicable principles are,
nonetheless, similar. In both contexts regard must be had to the fair balance
that has to be struck between the competing interests of the individual and
of the community as a whole; and in both contexts the State enjoys a certain
margin of appreciation (cf. Kroon and Others v. the Netherlands judgment of
27 October 1994, Series A no. 297-C, p. 56, 31; and X, Y and Z v. the
United Kingdom judgment of 22 April 1997, p. 631, 41).

The present case raises the question whether the Netherlands authorities were
under a duty to grant the applicant’s request to change the surname of her
daughter. The Court will, therefore, view the case as one involving an
allegation of failure on the part of the respondent State to comply with a
positive obligation.

The Court recalls that legal restrictions on the possibility of changing
surnames may be justified in the public interest, that Contracting States
enjoy a wide margin of appreciation in this legal area and that it is not the
task of the Court to substitute itself for the competent domestic authorities
in determining the most appropriate policy for regulating changes of surnames
in a particular Contracting State, but rather to review under the Convention
the decisions that those authorities have taken in the exercise of their
power of appreciation (Stjerna v. Finland judgment, loc. cit., p. 61, 39).

The Court notes that the applicant’s request at issue only concerned her
daughter. No request was made to alter the surname of her two sons. The Court
further notes that, both under the former and current rules on surnames in
the Netherlands, the applicant’s request was bound to fail in that the
requirements under these rules for changing a surname were not met. It
further notes that, in reply to the applicant’s argument under Article 8 of
the Convention, the Administrative Law Division held that the applicant’s
personal interest, i.e. the continuation of her family name through her
daughter, was outweighed by the general interest in preserving the stability
required in the legal rules governing names.

Noting the current possibilities under Dutch law for parents to choose
whether their children will bear either the surname of the father or of the
mother and recalling the Contracting States’ wide margin of appreciation in
this legal area, the Court cannot find, in the particular circumstances of
the present case, that the refusal of the applicant’s request to give a
different surname to her daughter than the surname given to her sons
constituted a lack of respect for her private and family life within the
meaning of Article 8 of the Convention.

It follows that this part of the application must be rejected as being
manifestly ill-founded within the meaning of Article 35 3 of the
Convention.

4.As regards the applicant’s complaint under Article 14 in conjunction with
Article 8 of the Convention, the Court recalls that Article 14 affords
protection against discrimination in the enjoyment of the rights and freedoms
safeguarded by the other substantive provisions of the Convention. For the
purposes of Article 14 of the Convention, a difference in treatment is
discriminatory if it has no objective or reasonable justification, that is,
if it does not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the aim sought
to be realised. The Contracting States enjoy a certain margin of appreciation
in assessing whether and to what extent differences in otherwise similar
situations justify a different treatment in law (cf. Stjerna v. Finland
judgment, loc. cit., p. 63, 48).

The Court further reiterates that the advancement of the equality of the
sexes is today a major goal in the member States of the Council of Europe.
This means that very weighty reasons would have to be put forward before a
difference in treatment on the sole ground of sex could be regarded as
compatible with the Convention (cf. Burghartz v. Switzerland judgment of 22
February 1994, Series A no. 280-B, p. 29, 27).

The Court notes that the applicant’s request was rejected as the relevant
rules did not provide for the possibility sought by the applicant, i.e. to
solely change the surname of her daughter. Noting that it has not been argued
and that it has not appeared that any requests to this effect made by others
have in fact been granted, the Court fails to see in what manner the
applicant received a different treatment from others.

As to the question whether the rules currently in force entail a difference
in treatment based on sex, the Court observes that these rules left the
starting point that children of married parents and children whose paternity
has been recognised by the father automatically bear the surname of the
father. After the amendment of the rules on surnames, parents may choose
which of their respective surnames will be given to their children, albeit
with the restriction that all of their children will bear the same surname.
The children of married parents will automatically bear the surname of their
father. They can, however, obtain the mother’s surname where the parents have
made a joint declaration to this effect. Furthermore, this rule applies to
both male and female children. Therefore, the Court finds no indication of a
difference in treatment based on sex in their respect.

As regards the position of the parents on this point, it is true that the
possibility to pass on the mother’s surname to children of a married couple
is made subject to the making of a joint declaration of the parents and that,
in case the parents disagree on this point, the rule that children
automatically bear the father’s surname applies. There is therefore a
difference in treatment between men and women in that the possibility to pass
on a mother’s surname is made dependent on an explicit agreement between both
parents, whereas the possibility to pass on the father’s surname is not based
on such an agreement.

The question therefore arises whether there is an objective or reasonable
justification for this difference in treatment. It appears from the decision
of the Administrative Law Division that the legitimate aim pursued is to
achieve that all children having the same parents bear the same surname. The
Court observes that the automatic rule at issue only applies where parents
have not made a joint formal declaration as to their children’s surname and
that it appears that this automatic rule is based on the rules in force until
1 January 1998.

Recalling the margin of appreciation of Contracting States as to the
assessment whether and to what extent differences in otherwise similar
situations justify a difference in treatment, the Court accepts that a
Contracting State may regard as undesirable a situation in which the surname
of a child would remain undetermined until both parents have reached an
agreement on this point and, in order to prevent such a situation, establish
an automatic rule which applies in the absence of such an agreement. It
therefore considers that, as to the difference in treatment complained of in
the present case, there is a reasonable relationship of proportionality
between the means employed and the aim sought to be realised.

It follows that this part of the application must also be rejected as being
manifestly ill-founded within the meaning of Article 35 3 of the
Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Noot

Na bovenstaande beschikking van het Europese Hof hebben de ouders het verzoek
gedaan om alle vier de kinderen de geslachtsnaam van de moeder te laten
verkrijgen. De mogelijkheid hiertoe door middel van het afleggen van een
gezamenlijke verklaring bestond tot 1 januari 2000 (Overgangsbepalingen van
de Wet van 10 april 1997, Stb. 1997,161). De Rechtbank Den Haag, aan wie het
verzoek wordt voorgelegd, overweegt dat in het onderhavige geval de
overgangstermijn van twee jaar niet te strikt dient te worden toegepast, en
ontvangt de ouders in hun verzoek. Vervolgens gelast de rechtbank de
ambtenaar van de burgerlijke stand een akte van naamskeuze op te maken
waarmee alle vier de kinderen de naam van hun moeder verkrijgen (Rechtbank
Den Haag 5 maart 2001, rekestnummer 00-5418, zaaknummer 145713).
In de zaak voor het Europese Hof is ook de vraag aan de orde geweest of het
Nederlandse naamrecht, waarin de kinderen van getrouwde ouders de naam van de
vader krijgen bij het ontbreken van een gemeenschappelijke keuze voor de naam
van de moeder, ongelijke behandeling op basis van geslacht oplevert. Voor wat
betreft de kinderen is de behandeling van jongens en meisjes gelijk, en is er
geen sprake van ongelijke behandeling. Ten aanzien van de ouders is er wel
sprake van ongelijke behandeling van mannen en vrouwen. Het Hof oordeelt
vervolgens dat dit onderscheid gerechtvaardigd is, omdat het een redelijke en
proportionele oplossing is om de ongewenste situatie dat een naam onbepaald
blijft, te voorkomen.
Opvallend is dat in het landencommentaar over Nederland het toezichthoudend
comité van het VN-Vrouwenverdrag (CEDAW) onomwonden oordeelt dat deze
regeling in het Nederlands naamrecht in strijd is met het Vrouwenverdrag.
Gesteld wordt dat de regering het naamrecht dient te herzien, en in
overeenstemming moet brengen met het Vrouwenverdrag.
Het laatste woord over het naamrecht is met de beslissing van het Europese
Hof dan ook nog niet gesproken.

Margreet de Boer

Rechters

Mrs. Palm, Casadevall, Ferrari Bravo, Bîrsan, Zupančič,Thomassen, Panţîru