Guest post by Tim Stahlberg, Lawyer at CMS Hasche Sigle in Hamburg
Last Thursday, Advocate General Sharpston issued a thoughtful opinion in the preliminary ruling procedure C-208/09 Sayn-Wittgenstein, a case which raises interesting questions of private international law and European citizenship (not to be confused with case 5/88 in which Prinzessin zu Sayn-Wittgenstein seemed to profit unfairly from European milk quotas, to the detriment of a small farmer who made her land suitable for milk production, a result which the Court of Justice corrected by holding for the first time that Member States must respect fundamental rights when they implement European rules).
This case also concerns a princess – or maybe not? In fact, that is the question. Sayn-Wittgenstein is about Ms Ilonka Havel, an Austrian estate agent for castles and stately homes in Bavaria and Austria. Following her adoption (as a grown up) in Germany by Lothar Fürst von Sayn-Wittgenstein, she obtained a judgment in 1992 by a German court confirming that her name has changed to 'Ilonka Fürstin von Sayn-Wittgenstein'. She was registered under that name in Austria for fifteen years until Austrian authorities objected to the 'Fürstin von' (Princess of) element. They relied on the constitutional principle of equality between citizens and the abolition of the nobility in Austria. Ms Ilonka (Fürstin von) Sayn-Wittgenstein, however, complained that her European rights to freedom of movement had been violated.
What makes this case so peculiar is that it raises a host of puzzling issues. Was the adoption as an adult a genuine one or was it only arranged to gain an advantage in the real estate market with a name suggestive of princely ancestry? Why did the Austrian authorities accept the 'Fürstin von' element for fifteen years before deciding otherwise? And does the Austrian ban on names of nobility constitute a consistent practice or is it marred by implausible exceptions?
It is also startling that German private international law concerning a person's name in fact refers to the law of the state of the person's nationality, which in this case is Austrian law. This implies that the German court was wrong in 1992 to rubber-stamp the name 'Fürstin von Sayn-Wittgenstein' since, in principle, names of nobility are prohibited in Austria. The gears of German and Austrian law in fact mesh – only because of the incorrect, albeit valid decision of the German court does this case arise.
Advocate General Sharpston found her way through this maze. Building on the case-law of Konstantinidis, García Avello, and Grunkin and Paul, she took the view that there is an interference with the citizen's freedom of movement (now Article 21 TFEU). During the fifteen years in which the appellant in the main proceedings was registered as 'Fürstin von Sayn-Wittgenstein', she was issued a driving licence and registered a company in Germany under that name. She will have opened bank accounts and entered into ongoing contracts. 'In short, she has lived for a considerable time in a Member State under a particular name, which will have left many traces of a formal nature in both the public and the private sphere. It can hardly be described as other than a serious inconvenience to be obliged to modify all those traces because her official identity papers now give her a different name.' (para. 44)
Turning to the question of justification, the Advocate General held: 'It seems clear that the abolition of the nobility, and of all privileges and designations pertaining thereto, is a legitimate aim for a newly founded republic – such as Austria in 1919 – based on the equality of all citizens and struggling out of the ruins of an empire which had been dominated by privileged classes.' (para. 59)
She continued: 'It further seems to me to be legitimate for such a republic to wish to maintain a firm safeguard against any resurrection of the privileged castes whose abolition was the original aim, which may legitimately be enshrined as a constitutional principle.' (para. 61)
Given the complexity and ambiguity in fact and national law, the remarks on proportionality were nuanced: 'If, for example, it were established that the legal position in 1992 was such that the appellant, the German court and the Austrian authorities could justifiably believe that the appellant’s surname was to be determined by German law alone, then a rectification 15 years later might well seem disproportionate. If, on the other hand, it transpired that the appellant had acted in bad faith in seeking to be registered under a surname to which she knew she was not entitled, or had in any way misled any of the authorities in question, then rectification might seem a just and proportionate measure. In any event, the length of the period concerned and the official and professional use the appellant has made of the name ‘Fürstin von Sayn-Wittgenstein’ are necessarily factors to be weighed in the balance.' (para. 68)
One may wonder whether the proportionality assessment may be different if the case is analysed solely under the umbrella of European citizen's rights. National authorities might enjoy greater leeway than in the framework of the free movement of services and the freedom of establishment. Strangely, the Austrian court only asked for an interpretation on the rules of European citizenship, although the appellant's economic activity was clearly at stake, too. In her analysis, Advocate General Sharpston took account of the obstacles to the appellant's professional endeavours.
It remains to be seen whether the Court will follow the Advocate General and touch upon the thorny issues of justification. A strategy of avoidance would be to avert the gaze from the economic dimension of the case and submit to the Austrian court that there is no restriction to the citizen's free movement. But this would be unconvincing. Sayn-Wittgenstein concerns the freedom to provide services and the freedom of establishment which are restricted. It is a curious case, arisen out of errors and omissions, apparently.
Text of Opinion