In the case of Künsberg Sarre v. Austria (19475/20, 17.1.2023), the European Court of Human Rights found a violation of the applicants’ private and family life (Art. 8 of the Convention) on account of the fact that after long periods of accepted use, in 2018 their surnames were changed by the authorities from “von Künsberg Sarre” to “Künsberg Sarre”, pursuant to the Abolition of Nobility Act of 1919. The ECtHR considered, inter alia, that the domestic courts had not explained why, as claimed by the Government, the prohibition of the use of the impugned surname was necessary to maintain democratic equality and public safety.
Considered from the perspective of the interplay between the Convention and EU law, the following passage from the ECtHR’s reasoning is noteworthy:
It appears that the change in the administrative practice and, consequently, in the authorities’ attitude towards the applicants’ surnames, occurred only after the Constitutional Court departed from its previous case-law, starting with its decision of 26 June 2014 … This change seems in turn to have been prompted by the judgment of the CJEU of 22 December 2010 in Sayn-Wittgenstein … It should be stressed, however, that the latter judgment considered the question at issue only from the perspective of Article 21 of the Treaty on the Functioning of the European Union …, but not from the perspective of Article 8 of the Convention. The fundamental rights issue of “private and family life”, which includes a proportionality test under the Convention standards relating to Article 8, was not addressed. Consequently, that CJEU judgment does not appear pertinent to the present context, which concerns questions relating to Article 8 of the Convention. (§ 69)
In Sayn-Wittgenstein, the CJEU had indeed ruled that:
Article 21 TFEU must be interpreted as not precluding the authorities of a Member State, in circumstances such as those in the main proceedings, from refusing to recognise all the elements of the surname of a national of that State, as determined in another Member State – in which that national resides – at the time of his or her adoption as an adult by a national of that other Member State, where that surname includes a title of nobility which is not permitted in the first Member State under its constitutional law, provided that the measures adopted by those authorities in that context are justified on public policy grounds, that is to say, they are necessary for the protection of the interests which they are intended to secure and are proportionate to the legitimate aim pursued. (§ 95)
This approach was later confirmed in Bogendorff von Wolffersdorff.
The lessons to be drawn from this are that:
a) The examination of certain issues from the perspective of fundamental rights is specific in that another perspective such as the freedom of movement in the EU cannot be considered equivalent to it.
b) Despite its different perspective, the CJEU’s ruling is not clashing with the above Strasbourg judgment. The CJEU indeed only set the criteria to be applied by the domestic authorities under Article 21 TFEU (justification, necessity, proportionality), without applying them itself.
c) The fact that these criteria bear some similarities with those applicable under Article 8 of the Convention is useful in view of the fact that the ultimate control over the domestic decisions on such issues, notably their weighing of the competing interests, is done ex post in Strasbourg under that same Article 8 only.