May
31
Garcia Avello [2003]
May 31, 2007 |
The case concerned a dispute between Mr. Avello and the Belgian State concerning an application to change the surname of his children who were dual Belgian and Spanish nationals.
Mr. Garcia Avello, a Spanish national, and his Belgian wife, Isabelle Weber, resided in Belgium and had two children. The two children have dual Belgian and Spanish nationality. Under Belgian law, children take the surname of their father, whereas under Spanish law children take the first surname of each of their parents. In line with this custom, the parents requested the Belgian authorities to change the surname of their children to Garcia Weber, but their application was refused as contrary to Belgian practice. After being confronted by Mr. Garcia Avello, the Belgian Conseil d’Etat referred a question to the ECJ as to whether the refusal was contrary to Community law.
The ECJ expressly acknowledged that the rules governing a person’s surname fall within the exclusive competence of the Member States rather than the Community (para 25). However, according to the ECJ the fact that the EU citizen’s children were residing in another Member State provided them with a sufficient link to Community law enabling them to be afforded protection under article 12 EC Treaty. Such a conclusion was not undermined by the fact that they also held the nationality of the host Member State to which the host Member State wished to give preference to.
The Garcia Avello case extended the right to non-discrimination based on nationality also as far as the rules of private international law governing surname law was concerned. This case provided another illustration of the capacity of the EU Citizenship provisions to set aside national rules concerned with matters other than the payment of financial benefits.
Text of the ECJ judgment
Text of the AG opinion