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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

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, having 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 e xcessive 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

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 implications 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 document, 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”.

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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, assume 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 . 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 . 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 .

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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 emphasized 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. Latvia, Appl. No.71074/01, decision on admissibility of 7 De- cember 2004, p. 26: “[P]rovided it respects the rights protected by the Convention, each Contracting State is at liberty to impose and to regulate the use of its official language or languages in identity papers and other official documents.” 11 See, e.g., ECtHR, Podkolzina v. Latvia, Appl. No.46726/99, judgment of 9 April 2002, para.34; Kozlovs v. Latvia, Appl. No.50835/99, judgment of 10 January 2002. 12 ECtHR, Burghartz v. Switzerland, Appl. No.16213/90, judgment of 22 February 1994, para.24. See also Niemietz v. Germany, Appl. No.13710/88, judgment of 16 December 1992, para.29; Stjerna v. Finland, Appl. No.18131/91, judgment of 25 November 1994, para.37; Guil- lot v. France, Appl. No.22500/93, judgment of 24 October 1996, para.21; Szokoloczy-Syllaba and Palffy de Erdoed Szokoloczy-Syllaba v. Switzerland, Appl. No.41843/98, judgment of 29 June 1999; Bijleveld v. the Netherlands, Appl. No.42973/98, judgment of 27 April 2000; Men- tzen/Mencena v. Latvia, Appl. No.71074/01, Decision on admissibility of 7 December 2004; Kemal Taskin and Others v. Turkey, Appl. No.30206/04, judgment of 2 February 2010. 13 ecj, Case C353/06, Grunkin and Paul (14 October 2008), ECLI:EU:C:2008:559, para.16. 14 Ibid.

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The Right to a Name Versus National Identity 329 states on names must comply with eu provisions if they concern a situation that falls under eu law ratione materiae. The use and recognition of names in official documents has been a long- standing issue in Lithuania, where all names in all identification documents and other certificates must be written using the alphabet of the state language, Lithuanian. As the Lithuanian alphabet does not contain the letter “w”, this has resulted in numerous legal disputes15 at the national level, with citizens requesting that their names be written using the alphabets of other languages, such as Polish or German, which both contain the letter “w”. This is not a domestic issue, however. The ecj examined whether eu law precludes measures like the Lithuanian rules on names in its 2011 judgment in the case of Runevič-Vardyn and Wardyn.16 This article takes this judgment as a point of reference for examining the regulation of names from the perspective of Article 21 tfeu and Article 8 echr. It also considers the impact of Article 4(2) teu, which calls for respecting member states’ national identities in the regulation of names. In an effort to contextualize the dispute involved in Runevič-Vardyn, the next section will provide an overview of the historical roots of the Lithuanian regulation of names.

2 Historical Roots of the Regulation of Names in Lithuania

2.1 Historical Background The national measure whose eu compatibility was disputed in Runevič- Vardyn relates to the circumstances surrounding the historical status of the Lithuanian language – and its evolution – as well as the rights of the Polish minority in Lithuania.17 The case concerned a complaint by Ms. Malgožata Runevič-Vardyn, a Lithuanian citizen and a member of the Polish minority in Lithuania. She wanted to receive a marriage certificate in which her name appeared not in its Lithuanian form but in its original Polish form as Małgorzata Runiewicz-Wardyn. This legal dispute, which culminated in a 2011 preliminary ruling by the ecj, reflects a controversial legal dispute on the status of the official language in certain eu member states from the former Soviet bloc, particularly in the Bal- tic states of Estonia, Latvia, and Lithuania. The historical background leading to the disputed Lithuanian regulation is described below.

15 See the analysis below of the case law of the Lithuanian courts of various instances. 16 ecj, Case C-391/09, Runevič-Vardyn and Wardyn (12 May 2011), ECLI:EU:C:2011:291. 17 Dagilytė, Stasinopoulos, and Lazowski, op.cit. note 1, at 11.

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330 Mickonytė

The emergence of the Polish minority in Lithuania dates back to a period far earlier than Soviet rule, although the dispute examined in this work emerged after the collapse of the Soviet Union. Lithuania and Poland share a centuries-long history.18 From the mid-sixteenth century to 1795, they consti- tuted a joint state under the name of the Polish-Lithuanian Commonwealth. During this period, the Lithuanian nobility was heavily Polonized. Polish served as the state language of the Grand Duchy of Lithuania, whereas Lithuanian remained alive among the peasantry.19 After the neighboring powers of R ussia, the Austro-Hungarian Empire, and Prussia divided the Commonwealth in 1795, the territory populated by ethnic Lithuanians became part of the R ussian Empire. The publication of literary works in the Lithuanian or Latin alphabet was prohibited; instead, all publications had to use Cyrillic script.20 In response, Lithuanian publications were smuggled into the Lithuanian-speaking territory from neighboring Prussia.21 In the midst of the nation-building processes that occurred in Europe in the nineteenth century,22 ethnic Lithuanians sought an identity that was separate from Polish or Russian and to distance themselves from Polish cultural influence and their political dependence on Russia.23 To this end, proponents of the Lithuanian national idea began standardizing Lithuanian grammar.24 The key publication promoting the national Lithuanian identity at the time,25 the Auszra (The Dawn) newspaper, replaced the Polish alphabet with new letters

18 Ibid. See also Karina Kössler, Minderheitenschutz in Polen und Litauen. Ein Vergleich der Rechtslage und Rechtsanwendung im Lichte völkerrechtlicher Vorgaben (eurac, Bozen/ Bolzano, 2013), 29. 19 Ibid. 20 See, e.g., Theodore R. Weeks, “Managing empire: tsarist nationalities policy”, in Dominic Lieven (ed.), The Cambridge History of Russia: Imperial Russia, 1689–1917, Vol.2 (Cam- bridge University Press, Cambridge, 2006), 38; Thomas Lane, Lithuania: Stepping West- ward (Routledge, Abingdon, 2014), xxvii; Henryk Głębocki, A Disastrous Matter: The Polish Question in the Russian Political Thought and Discourse of the Great Reform Age 1856–1866 (Jagiellonian University Press, Krakow, 2016), 245. 21 Weeks, ibid., at 38. 22 For more, see, e.g., Ian D. Armour, A History of Eastern Europe 1740–1918: Empires, Nations and Modernisation (Bloomsbury Publishing, London, 2012, 2nd ed.). 23 Alfredas Bumblauskas, “The heritage of the Grand Duchy of Lithuania: perspectives of historical consciousness”, in Grigorijus Potašenko (ed.) The Peoples of the Grand Duchy of Lithuania (Aidai, Vilnius, 2002), 7–44, at 10. 24 Tomasz Kamusella, The Politics of Language and Nationalism in Modern Central Europe (Springer, Berlin, 2008), 185. 25 Virgil Krapauskas, Nationalism and Historiography: The Case of Nineteenth-Century Lithu- anian Historicism (Columbia University Press, New York, 2000), 107ff.

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The Right to a Name Versus National Identity 331 based on Czech orthography.26 In the modern Lithuanian language, the Pol- ish letters “sz” and “cz” were replaced by letters with diacritical marks, “š” and “č”, while the letter “w” was replaced by the letter “v”.27 In the interwar-period (between 1918 and 1940), Lithuania was an independent state with Lithuanian as the state language; it was broadly used in public institutions, the press, and other areas of public life.28 Under Soviet rule from 1940 to 1990, Russian did not replace Lithuanian as the lingua franca in the republic, as it did in many other parts of the So- viet Union,29 since ethnic Lithuanians steadily comprised 80 percent of the population of the Lithuanian Soviet Socialist Republic. Lithuanian, Russian, and Polish comprised the primary languages of instruction in schools, while Russian was taught in every school.30 In the 1970s, the Russification process intensified, and both the government and the Communist Party ceased using Lithuanian in official documents; kindergartens had Russian lectures; all doctoral dissertations had to be written in Russian.31 With the restoration of Lithuania’s independence in 1990, the national language regained its primary position. In 1991, the Supreme Council of the Re- public of Lithuania adopted a resolution on writing names in passports,32 or- dering that the forename and surname of Lithuanian citizens be written only in Lithuanian characters. This rule also applied to citizens of non-Lithuanian origin. The regulation attracted criticism from Lithuania’s Polish minority, which currently makes up nearly 7 percent of Lithuania’s population of 2.9 million. The desire of the Polish minority to write their names in the original Polish form is expressed in the Lithuanian-Polish Friendship and Cooperation Treaty of 1994.33 In particular, Article 14 of the Treaty stipulates that people belonging to the Polish national minority may “use their forenames and surnames according to the phonetics of the minority language”. In 2010, Poland

26 Kamusella, op.cit. note 24, at 185. 27 Kössler, op.cit. note 18, at 33. 28 L.A. Grenoble, Language Policy in the Soviet Union (Springer Science & Business Media, Berlin, 2006), 104. 29 Ibid., at 105. 30 Ibid. 31 Ibid., at 106. 32 Resolution on Writing Names and Family Names in Passports of Citizens of the Republic of Lithuania, Valstybės žinios (31 January 1991), No.5-132. [“Dėl vardų ir pavardžių rašymo Lietuvos Respublikos piliečio”]. 33 Lithuanian-Polish Friendship and Cooperation Treaty, 26 April 1994, Valstybės žinios (16 December 1994), No.97-1907. [“Lietuvos Respublikos ir Lenkijos Respublikos draugiškų santykių ir gero kaimyninio bendradarbiavimo sutartis”].

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332 Mickonytė accused Lithuania of disregarding the Treaty.34 Lithuania dismissed Poland’s allegations, maintaining that the protection of the Polish minority was in compliance with international standards, including the Framework Convention.35 Following the accession of both countries to the eu in 2004, this politically sensitive issue36 spilled over to the supranational level. In the 2011 case of Runevič-Vardyn, the ecj examined whether eu law precluded Lithuania’s measures on the writing of names. The judgment in this case shed light on the issue in the context of free movement under eu law rather than the rights of national minorities. However, it also has potential implications for national minorities, as discussed below.

2.2 The Runevič-Vardyn and Wardyn Case The circumstances of the Runevič-Vardyn and Wardyn case are as follows. The parents of the applicant, born in 1977, gave her the name of Małgorzata Runiewicz. In her birth certificate issued in 1977 and reissued in 2002, however, her name appeared as Malgožata Runevič. In the 2000s, Ms. Runevič began working in Poland, where she married a Polish citizen, Łukasz Paweł Wardyn. In 2007, the Vilnius Civil Registry Division registered this marriage in Lithuania and issued a marriage certificate.37 In this certificate, Ms. Runevič’s husband’s name was written using the Polish alphabet but without the diacritical marks, i.e., Lukasz Pawel Wardyn. Her name, on the other hand, was written using only the Lithuanian alphabet, i.e., Malgožata Runevič-Vardyn. Subsequently, Ms. Runevič-Vardyn requested that the Vilnius Civil Registry Division amend the spelling of her name in the birth and marriage certificates in accordance with the Polish alphabet.38

34 In 2010, Poland’s then-foreign minister, Radoslaw Sikorski, refused to travel to Lithu- ania until it met its obligations to protect national minorities in accordance with the Lithuanian-Polish Friendship and Cooperation Treaty. For more, see Elzbieta Kuzborska, “Bone of Contention in Bilateral Polish-Lithuanian Relations”, 12 European Yearbook of Mi- nority Issues (2013), 122–157, at 126–127; Edward Lucas, “Poland and Lithuania: New Twists in an Old Story”, Center for European Policy Analysis (1 March 2012), available at . 35 “Poland, Lithuania and self-centredness goes nuclear (updated)”, The Economist (25 Oc- tober 2010), available at . 36 Damian Chalmers, Gareth Davies, and Giorgio Monti, European Union Law: Text and Ma- terials (Cambridge University Press, Cambridge, 2014), 486. 37 Lithuania has been a member of the eu since 2004. 38 The removal of the diacritical marks from Mr. Wardyn’s name is not considered in this contribution: as a Polish national, he is not a member of Lithuania’s Polish minority.

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The Right to a Name Versus National Identity 333

The Civil Registry denied this request, relying on a 1999 decision of the Lith- uanian Constitutional Court stating that official documents issued in Lithu- ania may use only the alphabet of the state language. The Constitutional Court of Lithuania held in 1999, with regard to the resolution “On Writing Names and Family Names in Passports of Citizens of the Republic of Lithuania”,39 and reiterated in 2009,40 that the Lithuanian language is a constitutional value protected under Article 14 of the Constitution of Lithuania, which grants it the status of the state language. The Court deemed the official national language a crucial component of the sovereignty of the Republic of Lithuania:

[It] preserves the identity of the nation, […] integrates a civil nation, […] ensures the expression of national sovereignty, the integrity and indivisibility of the state, and a smooth functioning of the state and local government establishments. [It] […] is an important guarantee for the equality of rights of citizens as it permits all the citizens to associate with state and local government establishments under the same conditions and to implement their rights and legitimate interests. The constitutional establishment of the status of [the] state language also means that the legislator must establish by law that the use of this language is ensured in public life, and, in addition, he must provide for the means of protection of the state language.41

Ms. Runevič-Vardyn appealed this decision before a court in Lithuania,42 claiming an infringement of the right to free movement under Article 21 tfeu and the prohibition of discrimination pursuant to Article 18 tfeu Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.43 The applicant argued, in particular, that she experienced indirect discrimination based on her origin, since her name was Lithuanized due to its Polish origin. She also claimed that the authorities’

39 Constitutional Court of Lithuania, decision of 21 October 1999, available in English at ; for the resolution, see op.cit. note 32. 40 Constitutional Court of Lithuania, Case No.14/98, decision of 6 November 2009, available in English at . 41 Constitutional Court of Lithuania, Case No.14/98, op.cit. note 39, para.4. 42 Vilniaus miesto 1 apylinkės teismas, Case No.2-290-129/2009, judgment of 8 September 2009. 43 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, oj L 180, 19.7.2000, 22–26.

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334 Mickonytė refusal to recognize her married name – which she took from her husband, who was a Polish citizen – resulted in discrimination based on nationality. The complaint also referred to Article 11(1) of the Framework Convention, which urges the contracting states to guarantee members of national minorities the right to use their first names and surnames in minority languages. The applicant claimed that she endured problems on a daily basis as a result of her name after moving to Poland, where she defended her doctoral thesis and worked as a researcher. In dealing with the Polish authorities, she used her Lithuanian passport with the Lithuanized form of her name. However, all of her diplomas and academic degrees issued in Poland, as well as her academic publications, used the Polish version of her name. Having to explain these differences allegedly caused severe psychological discomfort. Furthermore, the applicant indicated that she was experiencing problems in her current place of residence, Belgium, where she lived with her husband and son. For example, as a result of the differences in their surnames, Ms. Runevič-Vardyn had trouble proving that she was related to her husband and son.44 Confronted with these claims, the Lithuanian court stayed the proceedings and requested a preliminary ruling from the European Court of Justice. In response to this request, the ecj considered whether eu law precluded the disputed national measures.45 The ecj focused on Article 21 tfeu, which provides that “[e]very citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”. The Court added that eu citizenship is intended to assume “the fundamental status of nationals of the Member States”.46 This status not only guarantees equal treatment of eu citizens under the law but also applies to domestic provisions that are “liable to hamper or to render less attractive”47 the exercise of the freedom to move and reside within the eu.48 Situations that concern the right to freely move and reside within the eu fall within the scope

44 Runevič-Vardyn, op.cit. note 16, para.58. 45 At the outset, it was established that the measures fell outside the scope of Directive 2000/43/EC, as defined in Article 3 of the Directive. See Runevič-Vardyn, op.cit. note 16, para.48. Moreover, the ecj did not examine the disputed national rules in light of Article 18 tfeu. 46 ecj, Case C-413/99, Baumbast (17 September 2002), ECLI:EU:C:2002:493, para.82; C-135/08, Rottmann (2 March 2010), ECLI:EU:C:2010:104, paras.43 and 56; C-34/09, Ruiz Zambrano (8 March 2011), ECLI:EU:C:2011:124, para.41. 47 Opinion of ag Sharpston, Case C-34/09, Ruiz Zambrano, delivered on 30 September 2010, paras.71–72. 48 ecj, Case C-184/99 Grzelczyk (20 September 2001), ECLI:EU:C:2001:458, para.31.

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The Right to a Name Versus National Identity 335 of eu law ratione materiae,49 even if they are not governed by eu law. Hence, although eu law does not regulate the entry of people’s names and surnames in documents on their civil status, this area of national regulation must be consistent with the provisions conferring the freedom of movement.50 Since Ms. Runevič-Vardyn had exercised her right to free movement under Article 21 tfeu, her situation fell within the scope of eu law.51 Further, both the Charter of Fundamental Rights of the eu (cfr) and the echr govern questions relevant to this legal dispute as well. According to the ecj, a person’s name is “a constituent element of his identity and of his private life” protected under Article 8 echr and Article 7 cfr.52 Notably, by virtue of Article 52(3) cfr, the rights established in Article 7 cfr have the same meaning and scope as those guaranteed by Article 8 echr.53 To determine whether the national measure in question impeded the exercise of free movement guaranteed under Article 21 tfeu, the ecj applied the so-called test of serious inconvenience.54 It accepted that the different spelling of the first applicant’s name and surname was liable to cause some inconvenience.55 However, it held that the norms examined in the present case could restrict the rights stemming from Article 21 tfeu only if they were “liable to cause serious inconvenience to those concerned at administrative, professional and private levels”,56 for instance, by “giv[ing] rise to doubts as to [the individual’s] identity and the authenticity of the documents”.57 The ecj left it to the domestic courts to decide whether the test of serious inconvenience was met with respect to Ms. Runevič-Vardyn. With respect to her husband, the removal of the diacritical marks from his name was deemed unlikely to have detrimental consequences, as this often occurs due to technical

49 Runevič-Vardyn, op.cit. note 16, paras.61–62. 50 Ecj, Case C-148/02, Garcia Avello (2 October 2003), ECLI:EU:C:2003:539, paras.25–26; Grunkin and Paul, op.cit. note 13, para.16; Case C-208/09, Sayn-Wittgenstein (2 December 2010), ECLI:EU:C:2010:806, paras.38–39. 51 Elke Cloots, National Identity in eu Law (Oxford University Press, Oxford, 2015), 196; Runevič-Vardyn, op.cit. note 16, paras.63–64ff. 52 This interpretation is thus contrary to the argument that the writing of a name falls purely within the public sphere, as expressed by the Lithuanian Constitutional Court in its deci- sions of 1999 and 2009. 53 ecj, Case C-617/10, Akerberg Fransson (26 February 2013), ECLI:EU:C:2013:105, para.44. 54 See also, inter alia, ecj, Case C-168/91, Christos Konstantinidis (30 March 1993), ECLI:EU: C:1993:115. 55 Runevič-Vardyn, op.cit. note 16, para.75. 56 Ibid., para.76. 57 Ibid., para.81.

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336 Mickonytė reasons, and people unfamiliar with these diacritical marks would be unlikely to even notice them.58 Nevertheless, the ecj provided guidance for the domestic courts on navigating the test of serious inconvenience in the context of the proportionality test. In particular, it considered what circumstances could justify a possible restriction of the freedom of movement in this case. The case law of the ecj provides that a restriction of Article 21 tfeu can be justified if it occurs due to objective considerations, pursues a legitimate aim, and uses proportionate means to achieve it.59 With respect to the existence of a legitimate aim, some of the governments that submitted observations to the Court in Runevič-Vardyn argued that the protection of the official national language was a legitimate aim seeking to guarantee national unity of the respective member state. Similarly, the Lithuanian government emphasized the key importance of the constitutional status of the Lithuanian language. It pointed out its role in the integration of citizens, the expression of national sovereignty, the indivisibility of the state, and, also, the proper functioning of the state authorities.60 The 1989 case of Groener established that eu law is not opposed to measures that protect and promote state languages.61 Article 3(3) teu and Article 22 cfr stipulate, further, that the eu must respect member states’ cultural and linguistic diversity. Finally, Article 4(2) teu obliges the eu to respect “the national identity of its Member States, which includes protection of a State’s official national language”.62 In light of these provisions, the ecj found that the objective pursued by the Lithuanian measure was legitimate from the perspective of eu law.63 Nevertheless, it called on the national courts to consider the necessity of the measure, having regard to Article 8 echr and Article 7 cfr, which safeguard the right to private and family life and encompass, inter alia, a person’s surname. Therefore, the application of the disputed rule must reflect a fair balance between the rights of the individual and the public interest in protecting the state language and its traditions.64 Evidently, the ecj recognized the wish of the member states to protect their national identities by means of regulating the use of language in official documents. In this case, the ecj appeared to consider the Lithuanian approach as striking an appropriate balance between the individual’s rights and the public interest.

58 Ibid. 59 Sayn-Wittgenstein, op.cit. note 50, para.81. 60 Runevič-Vardyn, op.cit. note 16, para.84. 61 See ecj, Case C-379/87, Groener (28 November 1989), ECLI:EU:C:1989:599, para.19. 62 Runevič-Vardyn, op.cit. note 16, para.86. 63 Ibid., para.87. 64 Ibid., para.91.

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The Right to a Name Versus National Identity 337

Once the case returned to the domestic court, it dismissed the couple’s complaint.65 The court held, in agreement with the preliminary ruling of the ecj, that the situation in question had caused certain problems to the applicants, particularly with regard to proving their identity in their daily lives. However, it found that these troubles did not amount to a serious inconvenience.66 This judgment is relevant beyond the specific circumstances of this case. The question arises as to the potential impact of this case law of the ecj on the rights of an individual as an eu citizen and as a member of a national minority. Arguably, leaving broad discretion to the Member States to weigh the need to safeguard their national constitutional principles against the rights of an individual can have detrimental implications for individuals identifying as members of a national minority. They can expect to win against the state only where the threshold of a serious inconvenience has been met. The fact that national minorities in a member state are particularly unlikely to benefit from Runevič-Vardyn is not surprising given the long-standing approach to national minorities in the eu legal framework, as discussed below.

3 Regulation of Languages in the eu Context

3.1 Regulation of Languages and the Rights of National Minorities The circumstances surrounding Runevič-Vardyn indicate that the applicant perceived the case to be as much about the rights of national minorities as about free movement under eu law. As noted earlier, she invoked, in the domestic proceedings, Article 11 of the Framework Convention, although the provisions of this regional instrument act largely as guidelines rather than binding norms. Moreover, she claimed discrimination based on her ethnic origin. In the judgment, the Court mentions that the applicant belongs to the Polish minority in Lithuania, but otherwise it examines the dispute without reference to national minorities. This should not be surprising, as the rights of national minorities play a minor role in the acquis communautaire.

65 Vilniaus apygardos teismas, Case No.2A-1579-577/2013, judgment of 9 October 2013, available at (no English version is available); see also First District Court of the City of Vilnius, “Teismas Nusprendė, Kad Pavardės Dokumentuose Turi Būti Rašomos Lietuviškais Rašmenimis”, press release, 18 August 2011, available at . According to this press release, the court decided that surnames had to be spelled using Lithuanian characters. 66 Dagilytė, Stasinopoulos, and Lazowski, op.cit. note 1, 22.

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Prior to the Maastricht Treaty of 1993, minority rights were not part of the eu agenda, save for the efforts of the European Parliament to promote minority cultures and languages.67 This changed after the collapse of the socialist regimes in the Soviet Union and Yugoslavia. The collapse of Yugoslavia, in particular, unleashed ethnic violence just beyond the eu’s southeastern bor- ders.68 National-minority-related issues also emerged in those Central and Eastern European (cee) states in which the transition from socialist rule to liberal democracy occurred peacefully.69 To illustrate this, in Latvia and Esto- nia, members of the Russian-speaking minority had major difficulties becoming citizens, leaving large numbers of the Russian-speaking residents of these two countries stateless.70 At the same time, all of the newly independent cee countries expressed an unequivocal wish to join the ranks of the eu. In the 1990s, the eu signed

67 Gaetano Pentassuglia, “The eu and the Protection of Minorities: The Case of Eastern Europe”, 12(1) European Journal of International Law (2001), 3–38, at 6. 68 For more, see, e.g., Ana S. Trbovich, A Legal Geography of Yugoslavia’s Disintegration ( Oxford University Press, Oxford, 2008). 69 See, e.g., Klara Hallik, “Ethnopolitical Conflict in Estonia”, in Leokadia Drobizheva, Rose Gottemoeller, Catherine McArdie Kelleher, Lee Walker (eds.), Ethnic Conflict in the Post- Soviet World (Routledge, Abingdon, 2015), 87–109; Svetlana Diatchkova, “Ethnic Democ- racy in Latvia”, in Sammy Smooha and Priit Järve (eds.), The Fate of Ethnic Democracy in Post-Communist Europe (Open Democracy Foundation, Budapest, 2005), 61–81; Priit Järve, “Introduction”, in Sammy Smooha and Priit Järve (eds.), The Fate of Ethnic Democracy in Post-Communist Europe (Open Democracy Foundation, Budapest, 2005), 1; George Schop- flin, “Nationalism and Ethnic Minorities in Post-Communist Europe”, in Richard Caplan and John Feffer (eds.), Europe’s New Nationalism: State and Minorities in Conflict (Oxford University Press, Oxford, 1996), 151–168, at 153; Sammy Smooha, “The Model of Ethnic Democracy”, in Sammy Smooha and Priit Järve (eds.), The Fate of Ethnic Democracy in Post-Communist Europe (Open Democracy Foundation, Budapest, 2005), 6. 70 Lithuania did not face this issue, as it chose the so-called zero option, offering Lithuanian citizenship to all permanent residents on 3 November 1989 regardless of their ethnicity or the circumstances under which they were residing in Lithuania. It should be noted in this regard that Lithuania’s decision might have been influenced by its demographic situation: whereas nearly a third of the Latvian population and around 25 percent of Estonia’s population were Russian-speaking, Lithuania had a relatively small Russian community, making up about 7 percent of its general population. For more, see Frank Möller, Think- ing Peaceful Change: Baltic Security Policies and Security Community Building (Syracuse University Press, Syracuse, ny, 2007), 135. For demographic data, see Central Intelligence Agency, The World Factbook, available at (on Latvia); (on Estonia); (on Lithuania).

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Europe Agreements with the cee countries,71 which determined the legal framework that would guide their accession to the eu, which was finalized in 2004 and 2007.72 These agreements made no mention of national minorities. Nevertheless, the unresolved ethnic tensions in the candidate states, particularly the eu’s concern about importing these tensions into the eu via the accession prompted the Union to address the need for minority protection in its strategy for accepting new members.73 In 1993, the European Council added minority protection to the membership conditions known as the Copenhagen criteria,74 requiring the post-communist democracies in the cee region to adopt all international instruments governing the protection of minorities and to transpose them into their domestic legal systems.75 Hence, throughout the 1990s, the eu viewed minority rights almost exclusively through the lenses of its Eastern Enlargement policy.76 Some have said that the Eastern Enlargement was the “midwife”77 of a more pro-active minority-rights policy in the eu.

71 For more on the Europe Agreements, see, e.g., Peter-Christian Müller-Graff, East Central Europe and the European Union: From Europe Agreements to a Member Status (Nomos, Baden-Baden, 1997), 15ff. 72 For instance, Europe Agreements with Estonia, Latvia, and Lithuania were signed in 1995. For more on the Baltic states’ accession to the eu, see Ramūnas Vilpišauskas, “The final stage of the eu-accession game: The Baltic states – the likely victims of their own suc- cess?”, draft paper for the eusa conference (27–29 March 2003), Nashville, available at . 73 Claire Gordon, “eu Conditionality and the Protection of Minorities in the Post-Communist Region”, in Arie Bloed et al. (eds.) European Yearbook of Minority Issues Vol.7 (Brill Nijhoff, Leiden/Boston, 2007–2008), 263–295, at 277. 74 The European Council in Copenhagen in 1993 defined the membership criteria to include: “Stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”. See “Conclusions of the Presidency”, European Council in Copenhagen, 21–22 June 1993, available at . 75 Solange Mouthaan, “The eu and Minority Languages: Missed Opportunities and Double Standards”, 5 Web Journal of Current Legal Issues (2007), 1–23, at 1, available at . 76 Encyclopedia of Human Rights: Minority Rights: European Framework Convention-Soviet Gulag: European Framework Convention-Soviet Gulag, Vol.4 (Oxford University Press, Ox- ford, 2009), 518. 77 Gabriel N. Toggenburg, “The eu’s evolving policies vis-à-vis Minorities: A Play in Four Parts and an Open End”, eurac Research Paper (2008), 1–30, at 5, available at .

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The candidates were required to accede to the Council of Europe (CoE) and ratify both the echr and the Framework Convention.78 However, the eu’s decision to treat respect for minority rights as part of the accession criteria79 resulted in a double standard, as the existing member states assumed no obligation concerning the rights of national minorities.80 For example, France is not a signatory to the fcnm, whereas Belgium, Greece, and Luxembourg have signed but not ratified this Convention. Evidently, the eu’s policy on minority protection reflected no clearly expressed political consensus,81 holding the candidate countries to a higher standard than that imposed on existing members. Despite requiring the candidate states to ratify the fcnm, the eu did not adopt its own policies on national minorities or minority languages.82 As de Witte put it, minority concerns remained “an export product and not one for domestic consumption”.83 If we look at this issue from the perspective of the acquis communautaire, however, it becomes evident that the eu had no legal basis to act in the area of national minority rights at the time.84 Even the 1997 Treaty of Amsterdam, adopted five years after the formulation of the Copenhagen criteria, omitted any mention of national minorities. It did, however, explicitly refer to “liberty, democracy, respect for human rights and fundamental freedoms and the rule of law”85 as common values of the member states. In addition, even with respect to the Copenhagen criteria, minority rights seemingly did not play a weighty role in the accession process. For instance, some argue86 that in the accession negotiations the eu favored Estonia in comparison to Latvia and Lithuania due

78 Patrick Macklem, “Minority rights in international law”, 6(3–4) International Journal of Constitutional Law (2008), 531–552, at 554. However, the fcnm is not directly applicable in the contracting states; it functions through domestic laws and policies reflecting fcnm provisions. 79 Art.49 teu, together with Art.2 teu, stipulates that respect for minority rights remains one of the conditions for eu membership. 80 Gordon, op.cit. note 73, at 279. 81 Dimitry Kochenov and Timofey Agarin, “Expecting Too Much: European Union’s Minori- ty Protection Hide-and-Seek”, 1(1) Anti-Discrimination Law Review (2017), 7–50, at 12, available at . 82 Mouthaan, op.cit. note 75. 83 Bruno de Witte, “Politics versus Law in the eu’s Approach to Ethnic Minorities”, eui Work- ing Papers, No.4/2000 (2000), 3. 84 Toggenburg, op.cit. note 77, at 6; Kochenov and Agarin, op.cit. note 81, at 13–14. 85 Art.6(1) of the Treaty of Amsterdam (10 November 1997) Official Journal of the European Union C 340/01. 86 Kochenov and Agarin, op.cit. note 81, at 31.

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The Right to a Name Versus National Identity 341 to Estonia’s booming economy. At that time, 15 percent of the Estonian population, mostly belonging to the Russian-speaking minority, were stateless persons. In comparison, only 0.3 percent of Lithuania’s population was stateless, yet it was not a favored candidate due to its less impressive economic record.87 Omitting references to national minorities in the acquis communautaire meant that the eu had little power to monitor and address any issues arising in existing member states. The Lisbon Treaty of 2009 signaled a change of policy in this regard. Article 2 teu explicitly referred to the rights of national minorities among the eu’s values: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” The Charter, which became part of eu primary law pursuant to Ar- ticle 6(1) teu, entailed relevant provisions in this respect as well. Article 21 cfr prohibits any discrimination based on belonging to a minority group, whereas Article 22 cfr and Article 3(3) teu provide for respect for the cultural, reli- gious, and linguistic diversity of the member states. In Runevič-Vardyn, the ecj interpreted the latter provisions in favor of the official state language,88 yet one could see their relevance for minority languages, since nearly fifty million people in the eu speak at least one of its sixty regional or minority languages.89 Thus, the current framework of eu primary law signals that the rights of national minorities are becoming more than just one of the accession criteria.90 However, the relevant provisions are largely limited to the prohibition of discrimination, leaving any complementary, positive measures to regulation at the national level. They do not regulate minority languages either. Importantly, Article 2 teu does not serve as a firm legal basis for eu action in the area of minority protection, including the area of minority languages,91 since the eu may only act when it is explicitly empowered to do so by virtue of the principle of conferral under Article 5 teu. Therefore, language policy, as well as national minority questions in general, remain within the competence of the member states. It is true that the

87 Ibid. 88 Runevič-Vardyn, para.86. 89 Katharina Crepaz, The Impact of Europeanization on Minority Communities (Springer, Berlin, 2016), 1; European Parliament, “Regional and minority languages in the European Union”, Briefing (September 2016), available at . 90 Dimitry Kochenov, “European Union’s Troublesome Minority Protection: A Bird’s-Eye View”, in Jane Boulden and Will Kymlicka (eds.), International Approaches to Governing Ethnic Diversity (Oxford University Press, Oxford, 2015), 79–101, at 79. 91 Ibid., at 79–80.

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342 Mickonytė sanctioning mechanism under Article 7 teu92 could, in principle, be invoked against a member state that violated any of the values laid down in Article 2 teu. This provision has never been applied, however, and due to its politically sensitive character,93 it is highly unlikely to be used unless exceptionally grave breaches of eu values occur. Minority rights therefore essentially retained their minor role even after the introduction of Article 2 teu. However, the case law of the ecj has shown that rights relating to languages can be considered in the context of the freedom of movement and the prohibition of discrimination.94

3.2 Language Regulation and the Freedom of Movement As noted earlier, although minority protection remains within the domain of the member states, they remain bound to respect eu law even in the areas of domestic regulation insofar as these areas fall within the scope of eu law ratione materiae.95 To illustrate this, in the 1998 judgment in Bickel and Franz,96

92 For more on the nature and effectiveness of Article 7 teu, see, e.g., Leonard F.M. Bes- selink, “The Bite, the Bark and the Howl: Article 7 teu and the Rule of Law Initiatives”, Amsterdam Centre for European Law and Governance Research Paper No.2016-01 (2016), available at ; Dimitry Ko- chenov, “Busting the Myths Nuclear: A Commentary on Article 7 teu”, eui Working Paper No.law 2017/10 (2017), available at ; Dimitry Kochenov and Laurent Pech, “Upholding the Rule of Law in the eu: On the Commission’s ‘Pre-Article 7 Procedure’ as a Timid Step in the Right Direction”, 11 European Constitutional Law Review (2015), 512–540. 93 See, e.g., Kochenov, “Busting the Myths Nuclear: A Commentary on Article 7 teu”, ibid. 94 See, e.g., Ruiz Zambrano, op.cit. note 46, para.41; Grzelczyk, op.cit. note 48, para.31; Ba- umbast, op.cit. note 46, para.82; Garcia Avello, op.cit. 50, para.22; Runevič-Vardyn, op.cit. note 16, paras.86–91. See also Mary Dobbs, “The Shifting Battleground of Article 4(2) teu: Evolving National Identities and the corresponding need for eu management?”, 21(2) European Journal of Current Legal Issues (2015), available at ; Hanneke van Eijken, “Case Note on C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others”, 49 Common Market Law Review (2012), 809–826, at 809. 95 Runevič-Vardyn, op.cit. note 16, paras.62–63: “The situations falling within the scope ratione materiae of European Union law include those which involve the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 tfeu […] Although, as European Union law stands at present, the rules governing the way in which a person’s surname and forename are entered on certificates of civil status are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with European Union law, and in particular with the Treaty provisions on the freedom of every citizen of the Union to move and reside in the territory of the Member States.” 96 ecj, Case C-274/96, Bickel and Franz (24 November 1998), ECLI:EU:C:1998:563.

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The Right to a Name Versus National Identity 343 the ecj examined the rights of eu citizens in relation to a law protecting a minority language in Italy’s autonomous region of South Tyrol, also known as Alto Adige. In South Tyrol, the official languages are German and Italian: a large part of the South Tyrolian population are part of a German-speaking national minority.97 The members of this minority are entitled to use their mother tongue in court and administrative proceedings.98 Two German speakers, Mr. Bickel and Mr. Franz, Austrian and German nationals, respectively, sought to invoke this right in criminal proceedings against them by the South Tyrolean authorities.99 The Italian court believed, however, that the disputed Italian regulation specifically aimed to protect the ethnic and cultural identity of the German linguistic minority residing in the region, and not German speakers in general. It referred to the ecj for a preliminary ruling. The ecj found that the Italian regulation discriminated against the applicants on grounds of nationality, which is prohibited under Article 18 tfeu, and restricted their freedom of movement guaranteed under Article 21 tfeu.100 It is interesting that, in this particular case, the eu rules on free movement were incompatible with the protection of a national minority language. In other words, domestic measures on the protection of a national minority interfered with eu law. However, the ecj held that the protection of a national minority language was a legitimate aim of the member state and could, thus, justify a restriction of the free movement of eu citizens.101 In this specific case, however, it found the national measure to be unnecessary for the protection of the minority and therefore unjustified: members of this minority would not be disadvantaged if other German speakers could benefit from the measure in question.102 This judgment demonstrated that the protection of a minority language could legitimately justify a restriction of the freedom of movement and the prohibition of discrimination, but only if the member state could demonstrate that it was necessary and proportionate to the aim pursued.

97 For more on the national minorities in South Tyrol, see, e.g., Jens Woelk, Francesco Pal- ermo, and Joseph Marko (eds.), Tolerance through Law: Self Governance and Group Rights in South Tyrol (Martinus Nijhoff Publishers, Boston/Leiden, 2008). 98 Bickel and Franz, op.cit. note 96, paras.6ff. 99 Mr. Bickel was a lorry driver caught driving drunk by the Italian carabinieri. Mr. Franz was a tourist in possession of a type of knife that was prohibited by Italian criminal law. Ibid., paras.3–4. 100 Ibid., paras.16ff. 101 Ibid., para.29. 102 The protection of national minority rights would not have been impaired if other eu citizens had been allowed to use the German language in proceedings against them, and this would have come at no cost to the Italian authorities. Ibid., paras.29–30.

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Similarly, in an earlier judgment of 1989, in Groener, the ecj recognized that rules aimed at protecting the “expression of the national identity and culture”103 of a member state could serve as grounds for the justification of a restriction of the free movement of workers under what is now Article 45 tfeu. This case concerned a Dutch national, Ms. Groener, who wanted to teach at a public college in Ireland. Ms. Groener would have had to hold her lectures exclusively in English, as the large majority of the Irish population does not speak Irish. Nevertheless, the applicant was required to obtain a certificate of proficiency in the Irish language. Ms. Groener complained that this requirement was not compatible with the free movement of workers guaranteed under eu law. The outcome of this case was similar to that of Bickel and Franz: eu law does not preclude domestic rules intended to protect and promote a national language, in particular if it is also an official language,104 as long as these rules were proportionate to the aim pursued. Likewise, in the judgments in Garcia Avello, Grunkin and Paul, and Sayn- Wittgenstein, adopted between 2003 and 2010, the domestic rules governing the registration of names of natural persons were deemed compatible with eu citizens’ right to free movement105 unless they caused a serious inconvenience to the affected person. In the case of Grunkin and Paul, Leonhard Mat- thias Grunkin-Paul was born in Denmark to a married couple, Mr. Grunkin and Ms. Paul. Both the child and his parents were German nationals. In Denmark, the child obtained a birth certificate with a surname combining the names of both of his parents.106 When the family moved back to Germany, the German authorities refused to recognize the double name Grunkin-Paul. According to Article 10(1) of the Law Introducing the Civil Code of Germany,107 a person’s name is governed by the country of his nationality, and the German law does not permit a child to have a double name composed of the surnames of both their parents.108 The parents, who did not share the same name, had to choose which parent’s surname the child would be given. The applicants maintained

103 Groener, op.cit. note 61, para.18. 104 Ibid., para.19. 105 Art.21(1) tfeu: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.” 106 Grunkin and Paul, op.cit. note 13, paras.5–6. 107 Einführungsgesetz zum Bürgerlichen Gesetzbuch (21 September 1994), bgbi. I S. 2494; 1997 I S. 1061. 108 Grunkin and Paul, op.cit. note 13, para.7.

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The Right to a Name Versus National Identity 345 that compelling their child to have two different names – the double-barreled name recognized in Denmark and the single-barreled name recognized in Germany – would considerably encroach upon his freedom to move and reside within the eu.109 This matter was examined in light of eu law, although the regulation of surnames remained within the competence of member states.110 It was established that, similar to the judgment in Garcia Avello111 of 2003, “a discrepancy in surnames [was] liable to cause serious inconvenience for those concerned at both professional and private levels”.112 According to the ecj, the confusion about the actual name of the child, where proof of identity was required, could cause him considerable difficulties later in life, for instance, it could strip him of various documents, such as diplomas and certificates, of their legal effects, or call their authenticity in question.113 The ecj deemed this inconvenience sufficiently serious to amount to a violation of Article 21 tfeu. Similarly, in the 2010 judgment in Sayn-Wittgenstein, the ecj reiterated the serious-inconvenience test, albeit with a different result. Ms. Ilonka Sayn- Wittgenstein was an Austrian citizen residing in Germany. After Mr. Lothar Fürst von Sayn-Wittgenstein, a German national, adopted her as an adult in 1991, the applicant received the noble title of Fürstin von Sayn-Wittgenstein,114 which served as her surname. Ms. Sayn-Wittgenstein remained an Austrian citizen.115 The Austrian authorities entered her new name in the civil register. A decade later, however, in a 2003 judgment concerning a nearly identical situation, the Constitutional Court of Austria decided that the 1919 Consti- tutional Act on the Abolition of Noble Titles116 precluded Austrian citizens from holding a surname entailing a noble title.117 With this act, Austria aimed to protect the principle of equality between citizens after the collapse of the

109 Ibid., paras.18, 21ff. 110 Ibid., para.16. See also Garcia Avello, op.cit. note 50, para.25. 111 Ibid., para.36. 112 Grunkin and Paul, op.cit. note 13, paras.23ff. 113 Ibid. 114 Princess of Sayn-Wittgenstein. 115 Sayn-Wittgenstein, op.cit. note 50, para.22. 116 Gesetz über die Aufhebung des Adels, der weltlichen Ritter- und Damenorden und gewisser Titel und Würden, (3 April 1919), StGBl. 1/1920. 117 Verfassungsgerichtshof (VfGH), B 557/03 (27 November 2003), available at . The German regulation on noble titles differs from the Austrian one: all privileges based on a person’s birth or status were abolished in Germany, but noble titles could be used as part of a surname.

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Austro-Hungarian Empire.118 Four years later, the Viennese authorities re- moved “Fürstin von” from the applicant’s name in the civil registry on the basis of the 2003 judgment of the Austrian Constitutional Court.119 The applicant alleged a violation of Article 21 tfeu. According to Ms. Sayn- Wittgenstein, she had her noble title for fifteen years, conducting business under that name as a realtor in the luxury real estate sector. In particular, she sold stately villas and castles in Germany to local and other eu-based buyers,120 so her noble title was an asset in her business. Accordingly, changing her surname had allegedly caused her significant personal and professional inconveniences. In addition to claiming a violation of Article 21 tfeu, she also complained about a breach of her right to family life protected under Article 8 echr.121 Although this case was similar to Grunkin and Paul, different arguments were used. Austria contended, first, that Ms. Sayn-Wittgenstein’s situation was not comparable to that of Grunkin and Paul:122 she could keep her name except for the part indicating her noble title.123 Moreover, the Austrian government called for a balance between the applicant’s right to free movement and Aus- trian constitutional values, which the Constitutional Act on the Abolition of Noble Titles aimed to protect. Emphasizing that that act “went hand in hand with the creation of the Republic of Austria and implemented, in this field, the principle of equal treatment”,124 Austria maintained that satisfying the applicant’s request would have led to a grave impairment of Austrian constitutional values. The ecj accepted Austria’s arguments: “[I]n the context of Austrian constitutional history, the Law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons rec- ognised under European Union law.”125 The ecj’s argumentation relied, in particular, on Article 4(2) teu, which obliges the eu to respect the national

118 VfGH, B 557/03, para.3.2: “The Constitutional Act on the Abolition of Noble Titles, which implements the principle of equality, precludes the passing of a (former) noble title – be it a ‘princess’ or, as in the present case, a ‘prince’ – through adoption of an Austrian citizen by a German national who lawfully carries the noble title as part of his name. This constitutional act also precludes Austrian citizens from carrying noble titles of a foreign origin.” Translation by the author. 119 Sayn-Wittgenstein, op.cit. note 50, para.26. 120 Ibid., para.21. 121 Ibid., para.31. 122 Grunkin and Paul, op.cit. note 13, paras.23ff. 123 Sayn-Wittgenstein, op.cit. note 50, para.32. 124 Ibid. 125 Ibid., para.83.

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The Right to a Name Versus National Identity 347 identities of its member states, including their form of government, such as a republic. Moreover, the Austrian Act on the Abolition of Noble Titles pursued the aim of safeguarding equal treatment, which was recognized by eu law, e.g., in Article 20 cfr. Further, according to the ecj, the way the member states pursue their public policy may vary from state to state, depending on their specific circumstances; thus, they enjoy a certain margin of discretion in setting the priorities of their public policy.126 The national measure in question was deemed consistent with the principle of proportionality and therefore compatible with Article 21 tfeu.127 In the above cases, the ecj frequently referred to the right to private and family life guaranteed under Article 7 cfr and Article 8 echr, in addition to the freedom of movement. As noted earlier, pursuant to Article 52(3) cfr, the rights of the Charter that correspond to the rights under the echr are the same, in meaning and scope, as the rights laid down in the Convention. There- fore, it is meaningful to review the ECtHR’s analysis of Article 8 echr in the context of the collision between the right to private and family life and the national constitutional values, as illustrated by its 2004 decision in Mentzen v. Latvia, which dealt with Latvian regulation that was nearly identical to the rules disputed in Runevič-Vardyn.128

4 Approach of the ECtHR: Mentzen v. Latvia

The right to a forename and surname falls within the scope of Article 8 echr, which protects the right to respect for private and family life.129 However, not every form of regulation of names constitutes a breach of the Convention, as Mentzen v. Latvia illustrates.130 The facts of the case are as follows. The applicant was a Latvian national, Ms. Juta Mentzen. In 1998, she married a German

126 Ibid., para.92. Moreover, the ecj agreed that the principal objective of the Austrian Act on the Abolition of Noble Titles pursued the aim of equal treatment, which was recognized by eu law as well, e.g., in Article 20 of the Charter of Fundamental Rights of the eu. The way the member states pursue their public policy, furthermore, may vary from state to state, depending on their specific circumstances; thus, they enjoy a certain margin of discretion in setting the priorities of their public policy. 127 Ibid., para.94. 128 ECtHR, Mentzen v. Latvia, Appl. No.71074/01, decision on admissibility of 7 December 2004. 129 ECtHR, Burghartz v. Switzerland, op.cit. note 12, para.24; ECtHR, Kemal Taskin and Others v. Turkey, Appl. No.30206/04, judgment of 2 February 2010. 130 Mentzen v. Latvia, op.cit. note 128, p. 24. (The copy of the decision available online includes page numbers and not paragraphs.).

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348 Mickonytė national, Mr. Ferdinand Mentzen, and took his surname. The marriage took place in Germany, where the couple subsequently received their marriage certificate. Soon after, Ms. Mentzen sought to renew her Latvian passport. In the new passport, the Latvian migration authorities wrote her surname not as Mentzen but as Mencena, reflecting the rules of the Latvian language, which is the state language in Latvia. The original form of Ms. Mentzen’s name appeared at the end of the passport, under “special remarks”.131 The spelling of her surname was changed by virtue of Latvian Regulation No.174 on Transcription and Identification of Names in Official Documents,132 as well as the Official Language Act.133 The Latvian regulation required that all names be spelled according to the conventions of Latvian orthography; if a transcription was needed, the transcribed name had to resemble its pronunciation in its original language. The applicant argued that the Latvian measure imposed a change of name and thus violated her right to family and private life guaranteed by Article 8 echr. Dismissed by all lower-instance courts, the applicant’s complaint ended up before the Constitutional Court of Latvia. The Court interpreted the rules on transcription in relation to the historical endangerment of the Latvian language, particularly during the Soviet occupation.134 During the Soviet regime, ethnic Latvians were underrepresented in public administration135 and gradu- ally became a minority in many towns, as well as the capital, Riga, which also led to diminished use of the Latvian language.136 Moreover, the Court emphasized that the Latvian language, having restored its status as the official language relatively recently, was still in a fragile state.137 According to the Court, the protection and consolidation of the official language, as well as compliance with its rules and conventions, concerned the basis of the democratic republic of Latvia, its national identity, unity, and

131 Ibid. 132 Ibid., p. 2. 133 Valsts valodas likums, Latvijas Vēstnesis (9 December 1999), 428/433 (1888/1893). 134 The Constitutional Court of Latvia, Case No.2001-04-0103, judgment of 21 December 2001. For more, see, e.g., Artis Pabriks and Aldis Purs, Latvia: The Challenges of Change (Rout- ledge, Abingdon, 2013), 47–48. Pabriks and Purs write that, for instance, after Latvia’s annexation, many subjects at the university were taught only in Russian. 135 Ibid., at 48. 136 By 1991, when Latvia restored its independence, only 52 percent of the population was Latvian, in comparison with over 75 percent in 1935, before the Soviet annexation. See David Wippman, International Law and Ethnic Conflict (Cornell University Press, Ithaca, ny, 1998), 297. 137 Latvia regained its independence in 1990.

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The Right to a Name Versus National Identity 349

sovereignty.138 Since the rules and conventions of the language play an “in- tegral role […] in establishing the status of the official language”,139 the Court found that restrictions in this area could threaten the foundations of the democratic Latvian state. Pointing out that names were a feature of language, the Court emphasized that any rules applicable to names would affect the system of the language itself.140 Accordingly, all the information provided “in all spheres of use and writing of names, including documents”141 had to comply with the rules of the official language of the state.142 The Court found that the difficulties experienced by the applicant were not so severe as to outweigh the public interest in protecting the proper functioning of the Latvian language “as a single system”.143 On these grounds, the complaint was dismissed. Once the case reached Strasbourg, the ECtHR agreed that the situation in question could cause an inconvenience to the applicant’s social and professional life.144 It elaborated that a couple’s decision to use the same surname indicates their wish to show their mutual attachment and the unity of their family; if the surnames of the married couple do not match, it may be more difficult to recognize them as such. At the same time, it found that the case concerned the usage of, and not a change to, a name: the transcription of the name Mentzen aimed to reconcile the written form and the pronunciation of the name and to adapt it to the spelling conventions used in Latvian, but not to change the name itself. Moreover, the law permitted the name to appear in its original form under the special remarks in the passport, and the applicant had used this right. Nevertheless, the Court found that the original (Mentzen) and the adapted (Mencena) form of the name appeared sufficiently different so as to cause an ordinary person to doubt whether these were the same name.145 The applicant, who also held documents bearing the original version of her surname (issued in Germany), was often compelled, at home and abroad, to produce

138 Mentzen v. Latvia, op.cit. note 128, p. 5. 139 Ibid., p. 7. 140 Ibid., p. 5. 141 Ibid., p. 7. 142 In support of its arguments, the Latvian Constitutional Court also referred to a nearly identical decision by the Lithuanian Constitutional Court, which also perceived the Lith- uanian language as an inalienable part of Lithuania’s national identity, unity, and sovereignty. See Constitutional Court of Lithuania, Decision of 21 October 1999, op.cit. note 39. For more on this decision, see below. 143 Mentzen v. Latvia, op.cit. note 128, p. 6. 144 See also Burghartz v. Switzerland, op.cit. note 12, para.24. 145 Mentzen v. Latvia, op.cit. note 128, p. 25.

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350 Mickonytė additional documents proving her identity and the authenticity of her documents. For these reasons, the ECtHR established that there had been interference that affected her private and family life, as protected under Article 8 echr.146 Interference with this provision can be justified on three conditions: (1) if the disputed measure was adopted in accordance with the law;147 (2) if it pursues a legitimate aim;148 and (3) if it is necessary in a democratic society.149 In other words, the ECtHR placed the Latvian measure under the scrutiny of the proportionality test. In Mentzen, neither of the parties disputed the first condition. With respect to the second condition, the ECtHR pointed out that many contracting states had accorded the constitutional status of the state language to one or more particular languages. Thus, these countries transformed the state language into a constitutional value, similar to the national territory, flag, or the form of government.150 Further, the ECtHR viewed the state language as intrinsically linked to its usage. This compels the state, according to the Court, to adopt measures guaranteeing its citizens the right to use this language both in private life and in their dealings with state authorities.151 In this respect, the Strasbourg Court held that the national authorities and courts were in a better position to appraise the need for special protective measures, considering the sensitive nature of the matter in question. It was not for the ECtHR to assess the condition of the Latvian language. Since the Latvian government had argued that the situation of the state language remained in need of measures to safeguard it, the ECtHR accepted that the disputed measure corresponded to a legitimate aim, namely the protection of the rights and freedoms of others under Article 8(2) echr.152 In relation to the third condition, necessity in a democratic society, the Court’s argumentation revolved around the margin of appreciation afforded to the responding state. Concerning the regulation of forenames and surnames,

146 Ibid., p. 25. 147 ECtHR, Malone v. The United Kingdom, Appl. No.8691/79, judgment of 2 August 1984; Silver v. The United Kingdom, Appl. Nos.5947/72, 6205/73, 7107/75, 7113/75, and 7136/75, judgment of 23 March 1983; Sunday Times v. The United Kingdom, Appl. No.6538/74, judgment of 26 April 1979. 148 ECtHR, S. & Marper v. the United Kingdom, Appl. Nos.30562/04 and 30566/04, judgment of 4 December 2008, paras.101–104. 149 ECtHR, Dudgeon v. the United Kingdom, Appl. No.7525/76, judgment of 22 October 1981; Klass and Others v. Germany, Appl. No.5029/71, judgment of 6 September 1978. 150 Mentzen v. Latvia, op.cit. note 128, p. 26. 151 Ibid., p. 27. 152 Ibid.

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The Right to a Name Versus National Identity 351 the contracting states enjoy a wide margin of appreciation.153 According to the Court, the differences between the states in this area are “the strongest”,154 bearing no similarities among one another, due to the vast differences in historical, linguistic, and cultural particularities of these states. Hence, there is no consensus among the contracting states on the issue in question. Nevertheless, the contracting states must strike an appropriate balance between the rights of the individual and the public interest.155 Notably, Article 8 echr, which aims to protect individuals from unjustified interference by state authorities, can require that states not only refrain from interference, but that they also adopt measures ensuring respect for private and family life.156 In this regard, the ECtHR agreed that the Latvian authorities may have to adopt more appropriate rules.157 However, it deemed the inconveniences experienced too minor to influence Ms. Mentzen’s political, economic, or social rights. For instance, she could freely cross the border, either alone or when traveling together with her husband.158 Accordingly, the Court dismissed the application as manifestly unfounded. The ECtHR’s approach in this case was similar to that of the ecj, in particular in the cases of Sayn-Wittgenstein, Groener, and Runevič-Vardyn and Wardyn. Common to all these judgments is that they consider the official language to be part of the constitutional or national identity of the respective state. Having regard to this fundamental status, the protection of the state language served as legitimate grounds justifying interference with individual rights. Whereas no Convention provisions mention national identity, the acquis communautaire protects member states’ national identities from unjustified interference by eu institutions by virtue of Article 4(2) teu. Therefore, the next section looks into the interplay between this provision, which remains a rather nebulous concept,159 and the individual rights of eu citizens.

153 Ibid., p. 28. 154 Ibid. 155 Stjerna v. Finland, op.cit. note 12, para.38. 156 Ibid., p. 28. 157 Some measures had already been adopted at the time of the Court’s decision: for instance, the space between one’s adapted name in the main entry of their passport and their original name under “special remarks” has been reduced in order to place the original form of the name closer to the adapted version. With this amendment, the state authorities aimed to facilitate easier identification of passport holders. 158 Mentzen v. Latvia, op.cit. note 128, p. 31. 159 Pietro Faraguna, “Taking Constitutional Identities Away from the Courts”, 41(2) Brooklyn Journal of International Law (2016), 492–578, at 495.

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5 Is Language Protected as a Part of National Identity under Article 4(2) teu?

5.1 The Meaning of “National Identity” The focus on national identity in the above cases may reflect a certain trend across the eu. According to Weiler, it is widespread in the eu to insist on “constitutional specificity” rather than invoking the classical demand to respect a state’s national sovereignty.160 Indeed, ecj’s case law suggests that the national identity of a member state161 is a legitimate basis for justifying a restriction of eu law, as long as the principle of proportionality is observed.162 One could argue that Article 4(2) teu codifies this basis for justification. It stipulates:

The Union shall respect the equality of Member States before the Trea- ties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

It has been argued that this clause represents a key provision that frames the relationship between eu law and the constitutional law of the member states163 and indicates the limits of the supremacy of eu law.164 It could also reflect the eu motto of “unity in diversity”.165 This identity clause is relevant in several instances. For example, a member state can rely on it in claiming

160 Joseph. H. H. Weiler, “On the Power of the Word: Europe’s Constitutional Iconography”, 3 International Journal of Constitutional Law (2005), 173–190, at 184. For more, see also Faraguna, ibid. 161 For more on this provision, see Armin von Bogdandy and Stephan Schill, “Die Achtung der nationalen Identität unter dem reformierten Unionsvertrag. Zur unionsrechtlichen Rollenationalen Verfassungsrechts und zur Überwindung des absoluten Vorrangs”, 70 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2010), 702–733; Ingolf Per- nice, “Der Schutz nationaler Identität in der Europäischen Union”, 136 Archiv des öffentli- chen Rechts (2011), 2–42. 162 Van Eijken, op.cit. note 94, at 820; see also Opinion of ag Maduro, in Case C‑213/07, Mi- chaniki, delivered on 8 October 2008, ECLI:EU:C:2008:544, paras.32ff. 163 Von Bogdandy and Schill, op.cit. note 161, at 702. 164 Ibid., at 706. 165 Joseph Marko, “Minority Protection through Jurisprudence in Comparative Perspective: An Introduction”, 25(3) Journal of European Integration (2003), 175–188, at 186.

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The Right to a Name Versus National Identity 353 that an eu legal act is inconsistent with the state’s national identity; this provision can, further, be relevant in a situation where a member state seeks to justify interference with eu law by claiming to protect an aspect of its national identity.166 Although the term “national identity” has figured in the acquis communautaire since the Treaty of Maastricht,167 the meaning and scope of Article 4(2) teu, particularly regarding the term “national identities”, remains open to discussion.168 The term “national identity” has to be interpreted autonomously in light of eu law.169 However, the case law of the ecj offers no definition of this term. Throughout history, the first part of this term, the concept of “nation”, has been used in different contexts and with various meanings.170 One way of categoriz- ing diverse meanings of this term could be to consider a dichotomy between civic and ethnic connotations of what is discussed as “nation”. From an ethno- centric point of view, “national” can refer to common elements of community such as language, ethnicity, religion, history, or traditions, similar to the Ger- man model of the nation state.171 Within this concept, nations are “unique, historical narratives (…) expressed in [their] culture, customs, law and the state”.172 Hence, a set of objective markers is thereby ascribed to the inhabit- ants of a given state.

166 Von Bogdandy and Schill, op.cit. note 161, at 727. 167 Respect for national identity was established in the third paragraph of Article F teu: “The Union shall respect the national identities of its Member States”. At the time, it was not subject to the jurisdiction of the ecj pursuant to Art.46 teu. In spite of its lack of jurisdiction, the ecj has still referred to national identity in its jurisprudence, e.g., in the judgments in Omega (Case C-36/02, Omega Spielhallen und Automatenaufstellungs-GmbH, 14 October 2004, ECLI:EU:C:2004:614) and Gibraltar (Case C-145/04, Spain v. United Kingdom; 12 September 2006, ECLI:EU:C:2006:543). See Faraguna, op.cit. note 159, at 508. 168 Armin von Bogdandy and Stephan Schill, “Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty”, 48(5) Common Market Law Review (2011), 1417–1453, at 1440–1446. 169 Bogdandy and Schill, op.cit. note 161, at 711. 170 Thomas H. Eriksen, “Ethnicity, Race, Class and Nation”, in John Hutchinson and Anthony D. Smith (eds.), Ethnicity (Oxford University Press, Oxford/New York, 1996), 28–35, at 30. 171 Joseph Marko, “Human Rights and Ethnopolitics” in Karl Cordell and Stefan Wolff (eds.), The Routledge Handbook of Ethnic Conflict (Routledge, New York, 2016), 236–249, at 236ff; Sandra Schmidt, “Immigration policy and new ethnic minorities in contemporary Ger- many”, in Karl Cordell (ed.), Ethnicity and Democratisation in the New Europe (Routledge, New York, 2006), 82–96, at 84. 172 Schmidt, Ibid. at 93; Rogers Brubaker, “Myths and Misconceptions in the Study of Nation- alism”, John Hall (ed.), The State of the Nation: Ernest Gellner and the Theory of Nationalism (Cambridge University Press, Cambridge, 1998), 272–307, at 299.

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A civic-oriented understanding of this term, on the other hand, perceives a nation as a community that shares, irrespective of the race or ethnicity of its members, other common aspects such as, most importantly in the sense of the French Revolution, citizenship or law, a political identity, or institutions. It can be exemplified by French civic-political nationalism,173 or the “state-nation” model, that relies on cultural indifference.174 Arguably, the ethno-centric understanding of the term “national” does not correspond to Since Article 4(2) teu explicitly refers to fundamental political and constitutional structures, rather than cultural or ethnic markers, the civic concept of the term “national” seems to be more consistent with this particular teu provision.175 The term “identity”, which is not defined in eu law, stems from the Latin “idem”, which means “the same”, and is present in English since the sixteenth century.176 In a general sense, the term “identity” can be used when considering who a person or a group of persons is; it can also be linked with the definition of the “self”, of one’s uniqueness from a social or psychological perspective, which involves a feeling of belonging, temporal continuity, as well as a distinc- tion from others.177 In the context of nations, identity can mean a “collective sentiment based upon the belief of belonging to the same nation and of shar- ing most of the attributes that make it distinct from other nations”.178 Evidently, the term “national identity” is rather broad and capable of expressing multiple

173 Florent Vilard and Pascal-Yan Sayegh, “Redefining a (Mono)cultural Nation: Political Discourse against Multiculturalism in Contemporary France”, in Raymond Taras (ed.), Challenging Multiculturalism: European Models of Diversity (Edinburgh University Press, Edinburgh, 2012), 236–255, at 238; Colin Clark, “The nation-state: Civic and ethnic dimen- sions” in Karl Cordell and Stefan Wolff (eds.), The Routledge Handbook of Ethnic Conflict (Routledge, New York, 2016), 44–54, at 45ff; Faraguna, op.cit. 159, at 499. 174 Marko, op.cit. note 171. Meinecke also distinguished between “cultural and political nations, nations that are primarily based on some jointly experienced cultural heritage and nations that are primarily based on the unifying force of a common political history and constitution”. See: Friedrich Meinecke, Cosmopolitanism and the National State (Princ- eton University Press, Princeton, 2015), 10. 175 For more, see Andras Jacab, European Constitutional Language (Cambridge University Press, Cambridge, 2016), 288. 176 Philip Gleason, “Identifying Identity: A Semantic History” in Werner Sollors (ed.), Theo- ries of Ethnicity. A Classical Reader (New York University Press, New York, 1996), 460–489, at 461. 177 Montserrat Guibernau, The Identity of Nations (John Wiley & Sons, Hoboken, nj, 2013), 1922ff.; George Devereux, “Ethnic Identity: Its Logical Foundations and its Dysfunctions” in Werner Sollors (ed.), Theories of Ethnicity. A Classical Reader (New York University Press, New York, 1996), 385–415, at 385. 178 Guibernau, Ibid., 1923.

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The Right to a Name Versus National Identity 355 meanings in different contexts or with regard to different nations. Below, the understanding of a “national identity” is considered in the specific context of Article 4(2) teu.

5.2 Application of Article 4(2) teu eu law does not offer an exhaustive list of structures, concepts, or rights that fall under the term “national identity”. From a systematic point of view, the autonomous interpretation of this term under eu law should mean that Article 4(2) teu safeguards only those elements of identity that are compatible with the eu values under Article 2 teu. The provision itself also offers clues as to the meaning of this term. It refers to member states’ “fundamental structures, political and constitutional, inclusive of regional and local self-government”, drawing attention to the constitutional structures of the member states.179 Diverse constitutional structures can form a member state’s national identity,180 such as its governing form, i.e., whether it is a republic or a mon- archy, whether it is governed as a unitary or a federal state, and similar elements.181 The case law of the ecj suggests that this concept also includes, at least implicitly,182 diverse constitutional principles, such as the freedom of assembly and free speech,183 human dignity,184 as well as other rules, such as measures on citizenship185 or municipal self-government.186 The state language appears to form part of national identity as well, as Runevič-Vardyn illustrates:187

Article 4(2) eu [teu] provides that the Union must also respect the national identity of its Member States, which includes protection of a State’s official national language. It follows that the objective pursued by national rules such as those at issue in the main proceedings, designed to

179 Von Bogdandy and Schill, op.cit. note 161, at 711. 180 L.F.M. Besselink, “National and constitutional identity before and after Lisbon”, 6(3) Utrecht Law Review (2010), 36–49, at 37, 44. 181 Dobbs, op.cit. note 94. 182 Bogdandy and Schill, op.cit. note 161, at 708. 183 ecj, Case C-112/00, Schmidberger (12 June 2003), ECLI:EU:C:2003:333, paras.71ff. 184 ecj, Case C-36/02, Omega (12 June 2003), ECLI:EU:C:2003:333, paras.33ff. 185 Opinion of ag Maduro, Case C-135/08, Rottmann, delivered on 30 September 2009, paras. 23ff. 186 Opinion of ga Trstenjak, Case C-324/07, Coditel Brabant, delivered on 4 June 2008, para. 85. 187 Dobbs, op.cit. note 94; Faraguna, op.cit. 159, at 510; Groener, paras.18, 24; Runevič-Vardyn and Wardyn, paras.86–87.

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protect the official national language by imposing the rules which govern the spelling of that language, constitutes, in principle, a legitimate objective capable of justifying restrictions on the rights of freedom of movement and residence.

In this respect, Runevič-Vardyn and Wardyn has even been construed as im- plying that Article 4(2) teu “may act as a unilateral derogation”.188 However, the identity clause stipulates respect only for the fundamental – and not any or all – aspects of the national identity of member states. To claim otherwise would result in equating this provision to a de facto absolute right of the member states to derogate from eu law whenever a conflict between eu law and a national constitutional norm occurred.189 Quite on the contrary, the national identities of member states do not enjoy absolute protection from interference with eu law. The identity clause does not guarantee supremacy of national identities vis- à-vis eu law. According to von Bogdandy and Schill,190 this provision should be understood as applicable only in exceptional circumstances relating to the key aspects of national identity and only to prevent excessive intrusion of eu law into national regulation. The application of the identity clause relies, in particular, on the principle of proportionality in order to balance competing interests: the need to ensure uniform application of eu law vis-à-vis respect for national identities.191 Hence, Article 4(2) teu compels the eu to leave room for national interests in spite of the ecj’s obligation to guarantee the observance of eu law.192 Who decides whether the need to protect a national identity is sufficiently justified to disregard a certain eu norm? One could, perhaps, suggest that it is for the relevant national constitutional court to decide: after all, who, if not

188 Dobbs, op.cit. note 94. 189 Opinion of ga Maduro, Case 213/07, Michaniki, op.cit. note 162, para.33: “It is, nevertheless, necessary to point out that that respect owed to the constitutional identity of the Mem- ber States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become instruments allowing Member States to avoid Community law in given fields.” ag Cruz Villalon has also stressed that treating Art.4(2) teu as an absolute reservation of the Member States to protect their national or constitutional identities would place eu law in a subordi- nate position vis-à-vis national law. See Opinion of ag Villalon, Case C-62/14, Gauweiler v. Deutscher Bundestag, delivered on 14 January 2015, para.59. 190 Von Bogdandy and Schill, op.cit. note 161, at 714, 725. 191 Ibid., 725. 192 Dobbs, op.cit. note 94; Van Eijken, op.cit. note 94, at 820.

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The Right to a Name Versus National Identity 357 such courts, are best informed about the national identity of the respective state? However, domestic courts cannot unilaterally interpret the content of Article 4(2) teu. Owing to the principle of sincere cooperation inherent in Article 4(3) teu, member states have to cooperate with the eu in order to fulfil their obligations arising from eu treaties. Moreover, pursuant to Article 19 teu, only the ecj is competent to interpret eu law, holding a monopoly on the final interpretation of eu law.193 Having regard to this monopoly, the ecj must nevertheless interpret this norm while taking into account the national identity of the member state in question.194 The ecj’s approach to Article 4(2) teu confirms the plurality inherent in the eu legal order, which is not defined by a hierarchical relationship between eu law and national, particularly constitutional, law.195 In the absence of a hi- erarchy, both the ecj and domestic legal orders have a duty of consideration and cooperation aimed at resolving the collisions between the acquis communautaire and domestic constitutional law by way of a careful balancing of the colliding provisions in order to preserve their substance through a test of proportionality.

5.3 Balancing National Identities with eu Law: Implications for the Regulation of Language What conclusions can we draw from the above interpretation of Article 4(2) teu? Evidently, national measures, such as those examined in Runevič-Vardyn, are subject to the ecj’s test of serious inconvenience, which could be seen as an instrument for measuring the excessiveness, or proportionality, of a domestic measure. The case law of the ecj, similarly to that of the ECtHR, carves out a weighty role for the plurality of the constitutional orders of the member states when examining the proportionality of a national measure. The eu’s current legal framework seemingly favors official state languages, as the ecj judgment in Groener, discussed above, indicates. Hence, eu citizens seeking to invoke the right to write their names in official documents in a minority or other non- official language must prove that considerably severe interference with their freedom of movement or their right to private and family life has occurred. The cases considered above indicate that both the ecj and the ECtHR see domestic courts as being in the best position to determine whether national measures strike an appropriate balance between individual rights and the public interest. This balanced approach suggests that, at least with regard to

193 See also ecj, Case C-314/85, Foto-Frost (22 October 1987), ECLI:EU:C:1987:452, paras.17–19. 194 Von Bogdandy and Schill, op.cit. note 161, at 730. 195 Ibid., 733.

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358 Mickonytė the measures discussed in this paper, the European courts aim to avoid excessive encroachment upon national constitutional values. At the same time, one could argue that this state of affairs is liable to halt the development of the protection of minority languages in the European legal space, as well as the liberalization of domestic norms governing the recognition of names. This can affect not only members of national minorities but also eu citizens in general, since the scale of migration and mobility of eu citizens across the Union inevitably, even necessarily, results in the coexistence of diverse systems for writing surnames within member states. However, recent post-Runevič-Vardyn case law in Lithuania suggests that the courts are willing to decide in favor of individual rights, having regard to the ecj’s test of sufficiently serious inconvenience, as discussed below.

6 Interpretation of Runevič-Vardyn and Wardyn in Lithuanian Jurisprudence

As noted earlier, after the preliminary ruling of the ecj in Runevič-Vardyn and Wardyn, the domestic court performed the test of severe inconvenience and, having failed to establish a sufficiently serious restriction of the right to free movement, dismissed the complaint. The Supreme Court of Lithuania performed, it seems, an even stricter test in 2013 following a complaint by Ms. J. V.196 It held that the existence of a severe inconvenience could be established only in a case where the individual concerned was prevented from exercising his or her freedom of movement under eu law.197 In 2008, the applicant, Ms. J. V., a Lithuanian citizen, married an Austrian citizen, Friedrich A. W.198 She took her husband’s surname and received an Austrian marriage certificate in which her name was spelled with the letter “w”. In line with Lithuania’s constitutional doctrine and the resulting administrative practice, the applicant received a marriage certificate in which her surname was spelled with the letter “v”. Based on this certificate, the applicant obtained a Lithuanian passport in 2010 with a Lithuanized version of her surname.

196 The judgment does not reveal the names of the applicant or her husband. 197 Lietuvos Aukščiausiasis Teismas, Case No.3K-3-392/2013, judgment of 17 July 2013, available at (no English version is available). 198 The decision does not indicate the full name of the applicant or her husband.

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The Right to a Name Versus National Identity 359

In her complaint, Ms. J. V. listed a number of forms of interference with her private and professional life resulting from this modification. As a resident of Austria, she had acquired numerous documents, e.g., bank cards, a social security card, a vehicle registration document, etc., in which her surname appeared in its German form. Since her surname differed in various documents depending on the issuing country, Ms. J. V. was compelled to produce additional documents every time she needed to confirm her identity in Austria; the difference in the couple’s surnames also allegedly made it more difficult to identify them as husband and wife. The courts of the first and the second instance rejected the complaint, establishing that the inconvenience was not excessive: to prove her identity, she only had to produce an official translation of her marriage certificate showing that in her country of nationality, her surname appeared with a “v”. They also held that the numerous documents issued to the applicant in Austria indicated the free exercise of her right to move and reside within the eu.199 In her 2013 cassation complaint to the Supreme Court of Lithuania, J. V. argued, inter alia, that the lower-instance courts had failed to apply the principles determined in Runevič-Vardyn. According to the Supreme Court, however, Runevič-Vardyn clearly indicated that eu law was not contrary to the requirement to spell names in official documents according to the conventions of the state language as long as this requirement was consistent with the principle of proportionality. It stressed that a sufficiently serious inconvenience within the meaning of Runevič-Vardyn would occur only where the eu citizen could not exercise their right to move and reside freely within the eu by virtue of the national measure. Since the national measure did not prevent the applicant from moving to, or residing in, Austria, working there, or receiving numerous documents, no severe restrictions could be established. The need to show a translated copy of J. V.’s marriage certificate was deemed proportional to the aim pursued of protecting the state language. The Supreme Court dismissed J. V.’s complaint. However, subsequent case law in Lithuania’s lower courts indicated a change in interpretation of the name regulation. A number of courts found that the refusal to register a surname in its original spelling was discrimina- tory and contrary to the jurisprudence of the ecj and the ECtHR. In 2015, for

199 For more, see Vilniaus apygardos teismas, Case No.2A-1304-232/2012, decision of 8 No- vember 2012, available at (no English version is available).

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instance, a Vilnius court of first instance200 dealt with a complaint from a Lith- uanian citizen, Ms. Pauvels, who had married a Belgian citizen, Mr. Pauwels; in line with domestic practice, the applicant’s name was spelled as Pauvels. Unlike the Supreme Court in the above case, this court appraised the difficulties experienced by the applicant as excessive and therefore unlawful under Article 8 echr.201 It held that an individual’s interests, e.g., respect for private and family life, outweighed the public interest. In particular, the domestic court assessed the interest in protecting the state language in light of the new legal order that Lithuania joined when it acceded to the eu in 2004, as well as the obligations arising from the echr. According to the court, due to the freedom of movement under eu law and the de facto abolition of state boarders in the Schengen area, a restriction of an individual’s right to a name was unlawful. For these reasons, the court of first instance considered it necessary and legitimate to deviate from the established practice in this area and to satisfy the applicant’s request. Similarly, in an identical case, D. O. (O.) and A. O., a judgment of 3 February 2017, a Lithuanian court of first instance202 ruled that the Lithuanian measures on the regulation of names were excessively restrictive and therefore unjustified in light of Article 21 tfeu. This complaint was satisfied in defiance of the judgment of the Supreme Court. Finally, in a judgment of 28 February 2017,203 the Supreme Administrative Court of Lithuania obliged the competent authorities to issue a Lithuanian national, Ms. Alexia Gorecki-Mickiewicz, a passport in which her forename and surname appeared in their original form, i.e., with

200 Vilniaus miesto apylinkės teismas, Case No.2-12434/294Ų2015, 30 July 2015. The decision of this court was confirmed by a higher instance, the Vilnius Regional Administrative Court. See Vilniaus apygardos administracinis teismas, Case No.I-4199-789/2006, judgment of 4 July 2016, available at (no English version is available). 201 Among other arguments, the court stressed that due to the refusal to change the applicant’s surname, her children’s names would always differ either from her or from her husband’s surname, thereby restricting the legitimate rights and interests of one of the parents. 202 Kaišiadorių rajono apylinkės teismas, Case No.e2yt-80-925/2017, judgment of 3 February 2017, available at (no Eng- lish version is available). 203 Lietuvos vyriausiasis administracinis teismas, Case No.A-2445-624/2017, judgment of 28 February 2017, available at (no English version is available).

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The Right to a Name Versus National Identity 361 the letters “x” and “w”. The Court based its decision on the need to protect the right to private and family life guaranteed under Article 8 echr. Evidently, the emerging practice shows that the domestic courts of Lithu- ania are assessing the applicable regulation of names as inconsistent with eu law and the echr. Meanwhile, the relevant Lithuanian legislation remains unaltered. In 2015, the Lithuanian Parliament approved a legislative proposal that would allow the spelling of Lithuanian citizens’ names and surnames in the Latin alphabet (thus including such characters as “w”, “q”, and “x”).204 Two years later, in February 2017, discussions and consultations on the spelling of non-Lithuanian fore- and surnames were still ongoing;205 at the time of the writing of this article, the applicable legislation remained unchanged.

7 Concluding Remarks

The ecj’s case law examined in this work indicates that eu law does not regulate the use of language in official documents issued by member states. Therefore, the rules on the recognition and entry of individual’s names in these documents remain in the national domain. However, eu law is not wholly neu- tral to all language regulation. The ecj’s judgments in Runevič-Vardyn, Groener, and other cases show that national measures enacted for the protection of the state language can rep- resent a legitimate national interest, which can justify interference with the freedom of movement of eu citizens and with the right to private and family life. By virtue of the ecj’s test of serious inconvenience, national measures on names are, in principle, consistent with eu law as long as they do not cause severe difficulties in an individual’s private and professional life. Since this test is left for the domestic courts to perform, the outcome of a case is likely to depend on the emphasis a member state places on the protective measures for the state language.

204 “Lithuanian parliament committee okays use of Latin characters in name spelling”, DELFI.lt, 18 June 2015, available at ; “Name spelling issue will be resolved, Lithuanian foreign minister assures”, DELFI.lt, 30 June 2015, available at . 205 “Dėl Tautinių mažumų įstatymo ir pavardžių rašybos nebus skubama”, DELFI.lt, 10 Feb- ruary 2017, available at .

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This case law of the ecj is consistent with Articles 4(2) teu, 3(2) teu, and 22 cfr, which provide for, inter alia, respect for member states’ official state language. Recognizing the non-hierarchical, plurality-based nature of the eu legal order, the ecj aims to strike a balance between the need to ensure uniform application of eu law and the eu obligation to respect national identities. Non-official, including minority, languages do not enjoy comparable protection. Although Article 2 teu guarantees respect for the rights of national minorities, the current acquis communautaire is largely confined to the prohibition of discrimination based on ethnic origin, leaving positive measures in this area to national regulation. Therefore, members of national minorities who want to write their names in a minority language are unlikely to benefit from the above ecj case law. The high threshold of the test of serious inconvenience can be detrimental not only to members of national minorities. It can also affect cross-border disputes on impaired exercise of free movement due to the refusal of the state of origin to recognize a name because of its non-compliance with the conventions of its state language. Notably, by virtue of the freedom of movement and widespread migration, diverse rules on how names are written already de facto co-exist in member states. They continue to exist when eu nationals from different member states marry and give their surnames to their spouses and children in states other than their state of origin. The refusal of a member state to recognize these names due to an overriding national interest should be assessed in light of the general scheme of eu law. As established by the ecj in the case Van Gend en Loos of 1963, the eu has created a new, sui generis legal order for the benefit of which the member states have limited some of their sovereign powers; moreover, the holders of rights and obligations stemming from the eu law are not only the Member States but also the individuals.206 And eu law prohibits not only discrimination but also any restrictions liable to impair or to make the exercise of the freedom of movement by eu citizens less attractive.207 The current regulation of names in Lithuania – in spite of its aim to safeguard a constitutional interest – is liable not only to make the exercise of the freedom of movement less attractive. It can also impair the enjoyment of the right to private and family life protected under Article 8 echr and Article 7 cfr. Such a reading of the Lithuanian measures prevails in the most recent

206 ecj, Case 26/62, Van Gend en Loos (5 February 1963), ECLI:EU:C:1963:1, p. 12 (this judgment does not have numerated paragraphs). 207 ecj, Case C-330/03, Colegio de Ingenieros de Caminos (19 January 2006), ECLI:EU:C:2006:45, para.30.

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The Right to a Name Versus National Identity 363 case law of the Lithuanian courts. Evidently, they believe that the national constitutional interest of Lithuania – the safeguarding of its state language – can be achieved with less intrusive measures. Arguably, in the particular case of Lithuania, recent domestic case law interprets the case law of the ecj and the ECtHR in a manner that ensures a fair balance between the national public interest and the individual rights stemming from eu law.

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