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review of central and east european law 42 (2017) 325-363 brill.com/rela The Right to a Name Versus National Identity in the Context of eu Law: The Case of Lithuania Aistė Mickonytė Russian East European Eurasian Studies Centre (reees), Faculty of Law, University of Graz, Graz, Austria <[email protected]> Abstract This article examines national regulations relating to the recognition of names in official documents by focusing on Article 21 of the Treaty on the Functioning of the European Union and Article 8 of the European Convention on Human Rights, hav- ing particular regard to the judgment of the European Court of Justice in the case of Runevič-Vardyn and Wardyn. It also assesses the potential impact that this and other cases before the ecj and the European Court of Human Rights may exert on national minorities. The recognition of names is not regulated in European Union law; thus, the eu member states may freely determine the usage of names in official documents, as the state language represents a constitutional value and part of the national identity of many eu member states. Therefore, only regulation of names that causes excessive interference with the exercise of freedom of movement or respect for private and family life is unlawful under eu law. This issue will also be discussed in light of Article 4(2) of the Treaty on the European Union, by which the ecj assesses these types of interference with the eu’s duty to respect the national identities of its member states. Keywords European Court of Justice – eu law – right to a name – freedom of movement – national minorities – national identity © koninklijke brill nv, leiden, 2017 | doi 10.1163/15730352-04204003Downloaded from Brill.com09/27/2021 10:36:35PM via free access <UN> 326 Mickonytė 1 Introduction An individual’s name is one of the defining elements of their identity.1 It is in fact the principal instrument of an individual’s identification.2 At the same time, a name constitutes a crucial part of an individual’s private and family life.3 It can also pertain to their ethnic, national, or cultural self-identification.4 Hence, the way in which a person’s name is written in identification or other official documents is not a mere formality; it can have human-rights implica- tions as well. Names are one of the elements of a language. Therefore, language rules and spelling conventions affect the writing or pronunciation of a name; conversely, a particular usage or way of writing a name, for instance in an official docu- ment, can leave an impact on a language. The spelling of a person’s forename or surname5 in official documents is not problematic when an individual 1 Eglė Dagilytė, Panos Stasinopoulos, and Adam Lazowski, “The Importance of Being Ear- nest: Spelling of Names, eu Citizenship and Fundamental Rights”, 11 Croatian Yearbook of European Law and Policy (2015), 1–45, at 1. 2 The Explanatory Report to un Convention No.14 on the Recording of Surnames and Fore- names in Civil Status Registers, adopted under the aegis of the International Commission on Civil Status (“iccs Convention No.14”) (13 September 1973, Berne), provides: “Since surnames and forenames are the main means of identifying a person, they must be consistent wherever he or she may be, and the uniformity must be reflected in all civil status records that concern him or her.” 3 ECtHR, Burghartz v. Switzerland, Appl. No.16213/90, judgment of 22 February 1994, para.24: “As a means of personal identification and of linking to a family, a person’s name none the less concerns his or her private and family life”; ecj, Case C-391/09, Runevič-Vardyn and War- dyn (12 May 2011), ECLI:EU:C:2011:291, para.66: “It must be noted, as a preliminary point, that a person’s forename and surname are a constituent element of his identity and of his private life, the protection of which is enshrined in Article 7 of the Charter of Fundamental Rights of the European Union and in Article 8 of the European Convention for the Protection of Hu- man Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. Even though Article 8 of that convention does not refer to it expressly, a person’s forename and surname, as a means of personal identification and a link to a family, none the less concern his private and family life.” 4 Dagilytė, Stasinopoulos, and Lazowski, op.cit. note 1, at 2. 5 The case law of the ecj and ECtHR, as well as other documents cited in this work, apply the same principles and rules both to first and last names. Therefore, references to a “name” or “names” will encompass both forenames and surnames in this work. The term “forename” is used throughout this article in order to correspond to the terminology of the case law of the ecj and the ECtHR, as well as diverse international legal instruments, which favor “forename” over “first name”. review of central and east europeanDownloaded law from 42 Brill.com09/27/2021 (2017) 325-363 10:36:35PM via free access <UN> The Right to a Name Versus National Identity 327 agrees to have their name written in accordance with the conventions of the official state language in question. However, a member of a national minority may wish to spell their name in their native language.6 Alternatively, a citizen married to a foreign national may wish to take the foreign surname of their spouse and, subsequently, as- sume the spelling of that name. Such situations may prompt the individuals to challenge the state regulation of the recognition and use of names, particularly if a state permits only the use of the state language in official documents. As will be discussed below, the litigants substantiate their request to spell their name in its original form by arguing that their name constitutes part of their private and family life. International law has also recognized the role that a name can play in an individual’s private and family life and the need to protect the right to use one’s name. Article 24(2) of the International Covenant on Civil and Political Rights (iccpr) stipulates the right to have a name.7 Likewise, Article 11(1) of the Council of Europe’s Framework Convention for the Protection of National Mi- norities (fcnm) urges the contracting states to allow the members of national minorities to use their names in their minority language and to have them recognized, although this can be done in accordance with the “modalities”8 of the respective domestic legal orders. The Explanatory Report to the fcnm says that the contracting states may use “the alphabet of their official language to write [the] name(s) of a person belonging to a national minority in its pho- netic form”.9 6 Dimitry Kochenov, Vadim Poleshchuk, and Aleksejs Dimitrovs, “Do Professional Linguistic Requirements Discriminate? A Legal Analysis: Estonia and Latvia in the Spotlight”, 10(1) European Yearbook of Minority Issues (2013), 137–178, at 137. 7 Art.24(2) iccpr: “Every child shall be registered immediately after birth and shall have a name.” For more, see International Covenant on Civil and Political Rights, General Assembly of the United Nations, 19 December 1966, No.14668, available at <https://treaties.un.org/doc/ publication/unts/volume%20999/volume-999-i-14668-english.pdf>. 8 Art.11(1) of the Framework Convention: “The Parties undertake to recognise that every person belonging to a national minority has the right to use his or her surname (patronym) and first names in the minority language and the right to official recognition of them, according to modalities provided for in their legal system.” See more: Framework Convention for the Pro- tection of National Minorities and Explanatory Report, Council of Europe, February 1995, H (95) 10, available at <http://www.ecml.at/Portals/1/documents/CoE-documents/FCNM_ ExplanReport_en.doc.pdf>. 9 Council of Europe, Explanatory Report to the Framework Convention for the Protection of National Minorities, European Treaty Series No.157 (1 February 1995), para.68, available at <https://rm.coe.int/16800cb5eb>. review of central and east european law 42 (2017)Downloaded 325-363 from Brill.com09/27/2021 10:36:35PM via free access <UN> 328 Mickonytė The European Convention for the Protection of Human Rights and Funda- mental Freedoms (echr) does not govern the use or recognition of names in official documents.10 The European Court of Human Rights (ECtHR) has em- phasized that linguistic freedom is not part of the echr.11 However, the rules on the use of language in identity papers must comply with Article 8 echr, which guarantees respect for private and family life: [T]he Convention does not contain any explicit provisions on names. As a means of personal identification and of linking to a family, a person’s name none the less concerns his or her private and family life. The fact that society and the State have an interest in regulating the use of names does not exclude this, since these public-law aspects are compatible with private life conceived of as including, to a certain degree, the right to establish and develop relationships with other human beings, in professional or business contexts as in others.12 Similarly, the regulation of names in official documents does not fall within the scope of eu law.13 However, the European Court of Justice (ecj) has held that “[a]lthough, as Community law stands at present, the rules governing a person’s surname are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with Community law unless what is involved is an internal situation which has no link with Community law”.14 In other words, measures adopted by member 10 ECtHR, Mentzen/Mencena v.

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