Opinion of Mr Advocate General Jacobs delivered on 9 December 1992. - Christos Konstantinidis v
Stadt Altensteig - Standesamt and Landratsamt Calw Case C-168/91


My Lords,

1. The Amtsgericht Tuebingen has asked the Court to give a preliminary ruling on the interpretation
of Articles 5, 7, 48, 52, 59 and 60 of the EEC Treaty with regard to certain provisions of German
law which require Greek names to be transliterated into Roman characters according to a system that
is phonetically inaccurate.

2. The applicant in the main proceedings is a Greek national who works in Altensteig (Germany) as a
self-employed masseur and assistant hydrotherapist. According to his Greek birth certificate, his
first name is *p***** and his surname is **************. He wishes those names to be transcribed in
Roman characters as "Christos Konstantinidis" on the ground that such a spelling indicates as
accurately as possible to German speakers the correct pronunciation of his name in Greek. He also
points out that his name is thus transcribed in Roman characters in his Greek passport.

3. On 1 July 1983 he married a German national at the Altensteig registry office. His name was
entered in the marriage register as "Christos Konstadinidis". On 31 October 1990 he applied to the
registry office for the entry of his surname to be rectified from "Konstadinidis" to
"Konstantinidis". That request was forwarded, via the Landratsamt Calw (District Office), to the
Amtsgericht Tuebingen, which took the view that under the relevant provisions of German law the
name entered in the marriage register must correspond to the name on Mr Konstantinidis' birth
certificate. It therefore obtained a translation of the Greek birth certificate from a qualified
translator, who conscientiously applied a system of transliteration developed by the International
Organization for Standardization (ISO) (1) which resulted in the applicant' s name being rendered
as "Hrestos Konstantinides", with a horizontal bar written above the letter "e" in the first name
and above the "o" and "e" in the surname. The Landratsamt Calw thereupon submitted an application
for the entry in the marriage register to be corrected so as to correspond to the ISO system of
transliteration (except only that the horizontal bars were to be replaced by acute accents (2)).

4. The Amtsgericht Tuebingen considers that, as a matter of German law, the applicant' s name must
be recorded in the marriage register as Hréstos Kónstantinidés, even though that spelling is
intensely distasteful to the applicant and does not convey an accurate impression of the way that
his name is pronounced in Greek. The Amtsgericht Tuebingen arrives at that conclusion by the
following process. German law requires names in registers of civil status to correspond to the
names recorded on a person' s birth certificate. Registers are to be kept in the German language
and in the German or Roman alphabet. Foreign names written in a language that uses a different
alphabet are to be rendered as far as possible by transliteration, that is to say, each character
in the foreign alphabet is to be rendered by the equivalent character in the Roman alphabet. In the
case of Greek names a system of transliteration recommended by the ISO is to be used. That is in
accordance with Article 3 of the Convention on the Representation of Names and Surnames in
Registers of Civil Status (Convention No 14 of the International Commission on Civil Status) of 13
September 1973 (Bundesgesetzblatt 1976 II, p. 1473). Article 3 provides as follows:

"Where an entry must be made in a register of civil status by an authority of a contracting State
and there is presented for that purpose a copy of, or an extract from, an entry in a register of
civil status or another document indicating the surnames and first names in characters other than
those of the language in which the entry is to be made, those surnames and first names shall,
without translation, be reproduced by means of transliteration in so far as is possible.

If rules recommended by the International Organization for Standardization (ISO) exist, those rules
shall be applied." (3)

As we have seen, an ISO standard for the transliteration of Greek names does indeed exist and it
results in the applicant' s name being written "Hréstos Kónstantinidés".

5. The Amtsgericht Tuebingen considers that, if Mr Konstantinidis is compelled to have his name
spelt in accordance with the ISO standard in the marriage register, his rights under Community law
may be infringed. It has therefore referred the following questions to the Court:

"1. Is it an encroachment, contrary to Articles 5 and 7 of the Treaty establishing the European
Economic Community, on the rights of a national of a Member State of the European Communities who
is an employed or self-employed person covered by Articles 48, 52 and 59 et seq. of the said treaty
for him to be obliged to allow his name to be entered in the registers of civil status of his host
country, another Member State, against his express wishes, in a transliteration differing from the
phonetic transcription, whereby its pronunciation is modified and distorted?

Specifically, does the fact that the Greek name Christos Konstantinidis (in a direct phonetic
transcription) thus becomes 'Hréstos Kónstantinidés' constitute such an encroachment?

2. Does such a fact constitute an interference with the freedom of establishment and freedom to
provide services laid down in Articles 52, 59 and 60 of the Treaty establishing the European
Economic Community?"

The transliteration of names in general

6. Before examining the legal issues raised by the questions set out above, it might be useful to
consider the general problem of the conversion of names from one alphabet to another. The approach
most commonly adopted may be described as phonetic transcription. Under that method an attempt is
made to convert the name from the source language (in this case Greek) into the target language (in
this case German) in such a way as to convey to a native speaker of the target language the closest
approximation possible of the correct pronunciation of the name. The advantage of that method is
that the name will suffer the least possible phonetic distortion. The disadvantage is that, where
the alphabet into which the name is converted is used by several languages and the values assigned
to some of its letters vary from one language to another, a different spelling may be required for
each language. Writers and publishers, who may not of course view the problem from the same
perspective as the Registrar of Marriages in Altensteig or the ISO, do not appear to be greatly
troubled by the absence of a uniform transliteration of foreign names. Thus Spanish newspapers
speak of "Jomeini", whereas in most countries the late ayatollah is referred to as "Khomeini";
French journalists write "Eltsine", whereas English ones write "Yeltsin"; the name of the last
president of the Soviet Union is written variously as "Gorbachov", "Gorbatschow" and "Gorbaciov";
and the composer known in the English-speaking world as "Tchaikovsky" is referred to in Italy as
"Ciaikovski". Such variations were obviously less acceptable to the ISO when it set about the task
of producing a system for the transliteration of Greek names that would be valid in all countries
using the Roman alphabet.

7. In principle it is not for the Court of Justice to say that one system for transliterating Greek
names into Roman characters is better than another. Since however the essence of Mr Konstantinidis'
complaint is that the ISO system produces an unacceptable degree of phonetic distortion when
applied to his name, it is worth considering briefly what practical effects that system has. If the
version of the ISO system that has been placed before the Court were used generally, there is no
doubt that it would seriously distort the spelling of many Greek names. In numerous respects it is
bizarre and inaccurate. For example, the Greek letter "*", which in ancient times may well have
represented a sound like the "b" in the English word "big", is in modern Greek pronounced like the
"v" in "very". But the ISO system insists that it should be rendered by a "b". The influence of
perceived notions about the pronunciation of classical Greek is also to be seen in the proposed
rendering of the vowels "*" and "*", which in modern Greek are both pronounced like the vowel in
the English word "sheep". Under the ISO system "*" is to be rendered by "e" (with a horizontal bar
above it) and "*" by "u"; the former might be phonetically accurate to an English speaker and the
latter to a Welsh speaker, but neither conveys the value of the Greek letters to a German speaker.
In addition, the ISO system disregards the fact that "*" is pronounced like an English "v" or "f"
when preceded by "*" or "*". These are not the only defects. The ISO system transliterates the
Greek "*" by the Roman "g", ignoring the fact that the hard "*" has a guttural quality and the soft
"*" is pronounced like the "y" in the English word "yes". The letter "*", which is pronounced like
"th" in the English "thing", is to be rendered by a "t" with a horizontal bar above it. Of course
it is difficult to indicate such a sound to a German speaker since it is absent from his language.
But more conventional systems of transliteration write "th" for "*", perhaps because those letters
have the appropriate value in at least one major language (namely, English) and perhaps because
German words derived from Greek words containing the letter "*" are spelt with a "th" (e.g.
Theologie). Other Greek consonants that are distorted by the ISO system are "*" (to be
transliterated by an "h", whereas a "ch" would be more orthodox and more phonetic for a German
speaker) and "*", which represents the sound "ps" as in the English word "tips" but is
transliterated according to the ISO system by a "p" with a horizontal bar above it.

8. A good example of the distorting effect of the ISO system is provided by the name of ******
******* (1854-1929; an extreme advocate of the use of demotic Greek). The name would normally be
transliterated as "Yannis Psycharis", but under the ISO system it would be rendered "Giannés
Puharés" (4) (assuming that acute accents are to be used in place of horizontal bars), which is by
any standard misleading. Perhaps the most esoteric feature of the ISO system is the use of
horizontal bars above certain letters. Such signs can have no meaning at all, except for a reader
who is conversant with the ISO system, and certainly do not inform the uninitiated that "t" has a
fricative quality or that "p" is to be pronounced "ps". Moreover, many typewriters and
word-processors are, as we have seen, incapable of reproducing such signs, which doubtless explains
why the German authorities intend to register the applicant as "Hréstos Kónstantinidés" with three
acute accents not provided for in the ISO system. There must indeed be some doubt about the merits
of a system of transliteration which uses diacritic signs that are beyond the technical capacities
of ordinary writing equipment.

9. On the basis of the above remarks it is easy to conclude that, if the ISO system of
transliteration is used in Germany (or indeed in any other Member State), many Greek names °
including those of the applicant ° will be written in a way that gives a highly misleading
impression of their true pronunciation. In fact, some names will be distorted beyond recognition.

The alleged violation of the applicant' s rights under Community law

10. Although the Amtsgericht Tuebingen has referred two separate questions, it seems to me that in
reality they amount to a single question: namely, whether a national of a Member State who has
established himself as a self-employed person in another Member State, in which a different
alphabet is used, is entitled by virtue of Articles 7 and 52 of the Treaty, to oppose the
transliteration of his names, for the purpose of entries in registers of civil status, in a manner
that grossly misrepresents the pronunciation of those names.

11. Articles 48, 59 and 60 of the Treaty do not appear to be relevant in the present case, since
the applicant is self-employed and permanently established in Germany. As such, his rights are
determined by Article 52. It may in any event be noted that the position would be broadly similar
if he were a worker covered by Article 48 or a provider of services covered by Article 59. There is
not, in my view, any need to give separate consideration to Article 5; if the applicant is entitled
to oppose the misspelling of his name under Articles 7 and 52, that right will be directly
effective.

12. Written observations have been submitted by the Commission and by the German and Greek
Governments, all of whom were in addition represented at the hearing. Mr Konstantinidis did not
submit written observations, but he did give the Court a rare opportunity to hear a litigant in
person when he represented himself at the hearing. His essential argument, presented with a simple
eloquence and brevity which many professional advocates would do well to emulate, is that "Hréstos
Kónstantinidés" is an insulting, unpronounceable parody of his name, which is offensive to his
religious sentiments. He also points out that, having been known to his clients as "Christos
Konstantinidis" for eight years, he must now suffer either the inconvenience of telling them that
he has a new name or the confusion of using different names for different purposes.

13. Mr Konstantinidis is supported by the Commission and the Greek Government. The Commission
considers that a person in Mr Konstantinidis' situation may be a victim of indirect discrimination,
contrary to Articles 7 and 52, if he is required to use the distorted transliteration of his name
in his professional life and thus has reason to fear a substantial loss of earnings and if he is
likely to encounter administrative difficulties as a result of the different spelling of his name.
The Commission also considers that Mr Konstantinidis' human rights may be infringed, if the
compulsory use of the distorted transliteration adversely affects his right of free movement
guaranteed by the Treaty.

14. The Greek Government strongly disapproves of the system of transliteration recommended by the
ISO. It prefers another system developed by the Greek Standards Organization (ELOT 743), which is
applied in Greece and has been adopted by NATO and the United Nations. It considers that the German
authorities' insistence on using the ISO system manifestly infringes the rights enjoyed by
individuals under Articles 7, 48, 52 and 59 of the Treaty.

15. The German Government contends that the object pursued by the Convention of 13 September 1973
and by the ISO system of transliteration is uniformity and legal certainty: they ensure that Greek
names are spelt identically in all Member States and that transliterated Greek names can be
converted back into Greek. The German Government points out that Greece has also acceded to the
Convention of 13 September 1973. Whatever difference of treatment may be suffered by Greek
nationals is objectively justified, since it is necessary in order to render Greek names
comprehensible in other countries.

16. At the hearing the German Government modified its position somewhat. Its representative
referred to Article 2, first paragraph, of the aforesaid Convention of 13 September 1973, which
provides as follows:

"Where an entry must be made in a register of civil status by an authority of a contracting State
and there is presented for that purpose a copy of, or an extract from, an entry in a register of
civil status or another document indicating the surnames and first names in the same characters as
those of the language in which the entry is to be made, those surnames and first names shall be
reproduced literally without alteration or translation."

The German courts have always taken the view that the reference to "another document" is limited to
documents of civil status and does not include passports and identity cards. Thus the Amtsgericht
Tuebingen refuses to allow the applicant' s name to be recorded in the marriage register in
accordance with the Roman transcription used in his Greek passport. The German Government' s
representative informed the Court that on 11 September 1992 the General Assembly of the
International Commission on Civil Status adopted a resolution according to which the reference, in
Article 2 of the Convention of 13 September 1973, to another document indicating a person' s name
includes official documents such as passports. The German Government intends to issue instructions
to its administrative officers requiring them, in effect, to comply with that resolution but is
uncertain whether the German courts will accept that interpretation of the Convention. The German
Government' s representative concedes that there would be a breach of the Treaty if a national of
another Member State whose name is written in Roman characters in his passport were compelled to
accept a different spelling of his name.

17. In order to determine whether Community law entitles Mr Konstantinidis to object to the
transliteration of his name in a particular way, it is necessary to examine: (a) whether he suffers
discrimination on grounds of nationality of a type that is prohibited by Article 7 of the Treaty,
in conjunction with Article 52 thereof; and (b) whether, even in the absence of any discrimination,
his right of establishment under Article 52 of the Treaty is impaired, in particular because the
treatment accorded to him is a breach of his fundamental rights protected by Community law.

(a) The issue of discrimination

18. On the question of discrimination it is necessary to consider (i) whether Greek nationals are
treated differently from nationals of Germany or other Member States, (ii) whether such a
difference of treatment falls within the scope of the Treaty, and (iii) whether it is objectively
justified by a difference in the situation of Greek nationals and that of other nationals. I shall
examine each of those points separately.

19. The Commission observes rightly that Mr Konstantinidis is not suffering direct (or overt)
discrimination, since German law does not expressly prescribe one form of treatment for Greek
nationals and another for nationals of other Member States. Even if Mr Konstantinidis became a
naturalized German, he would still have to have his name transliterated in exactly the same way.
The Commission contends that Mr Konstantinidis may, however, be the victim of indirect (or covert)
discrimination, inasmuch as the German rules requiring names written in non-Roman characters to be
transliterated in a particular way are more likely to affect Greek nationals than nationals of
Germany or any other Member State. It is of course well established that the Treaty rules
prohibiting discrimination extend to covert, as well as overt, discrimination: Case 152/73 Sotgiu v
Deutsche Bundespost [1974] ECR 153, at paragraph 11.

20. In my view, the practice of the German authorities is capable of resulting in covert
discrimination against Greek nationals. The great majority of Greek nationals who go to live and
work in Germany will, as holders of Greek birth certificates showing names written in Greek
characters, have to endure the obligatory transliteration of their names according to a system
which takes no account of their wishes in the matter and which may result in an objectionable
degree of distortion. Very few nationals of any other Member State, including Germany, will be
affected by the German rules on obligatory transliteration, because their names will have been
recorded from birth in Roman characters. Hence, Greek nationals are in practice treated differently
from nationals of other Member States.

21. There cannot be any doubt that the difference in treatment identified above falls in principle
within the scope of application of the Treaty, as required in order for the prohibition laid down
in Article 7 to operate. A person who goes to another Member State in the exercise of the rights
conferred on him by the free movement provisions of Articles 48 to 66 of the Treaty is "in a
situation governed by Community law" and as such must "be placed on a completely equal footing with
nationals of the Member State": Case 186/87 Cowan v Trésor Public [1989] ECR 195, at paragraph 10.
The fact that the rules governing the writing of names in public registers are in principle a
matter for national law rather than Community law does not of course mean that any discrimination
in those rules is removed from the ambit of the Treaty. That much is clear from paragraph 19 of the
Cowan judgment.

22. It might be argued that some differences in treatment, especially the accidental differences
that lead to covert discrimination, are not sufficiently serious to be caught by the prohibitions
laid down by the Treaty. The Commission seems to suggest that the discrimination suffered by Greek
nationals in the present case is only prohibited if it results in some tangible disadvantage for
the person concerned, such as for example might be the case if he were required to use the
undesirable spelling of his name for commercial or professional purposes and lost income as a
result of the ensuing damage to his prestige or if he suffered difficulties of an administrative
nature.

23. It is not clear whether Mr Konstantinidis is obliged to use the distorted spelling for business
and social purposes and in his ordinary dealings with the German authorities or whether it is
mandatory only in the marriage register and similar documents. Certainly, if Mr Konstantinidis were
to suffer financial loss as a result of being forced to trade under a distorted version of his
name, there would be no case for arguing that the matters complained of by him are so trivial and
insignificant as to lie outside the concern of Community law.

24. But I do not think that actual damage of a tangible nature need be proved in order to bring
into operation the prohibition of discrimination. Community law does not regard the migrant worker
(or the self-employed migrant) purely as an economic agent and a factor of production entitled to
the same salary and working conditions as nationals of the host State; it regards him as a human
being who is entitled to live in that State "in freedom and dignity" (see the fifth recital in the
preamble to Regulation No 1612/68 on freedom of movement for workers within the Community; OJ,
English Special Edition, 1968 (II), p. 475) and to be spared any difference in treatment that would
render his life less comfortable, physically or psychologically, than the lives of the native
population. There is support for that proposition in the case-law of the Court. For example, in
Case 137/84 Ministère Public v Mutsch [1985] ECR 2681 the Court held that a migrant worker who was
prosecuted before a criminal court must have the same rights, as regards the use of languages, as a
national of the host State.

25. If Mr Konstantinidis is compelled to call himself "Hréstos Kónstantinidés" when dealing with
the German authorities, with his clients or with firms from which he himself buys goods or services
(for example, when he insures his car or opens a bank account), then I should say that, even
without proof of actual financial loss, the inconvenience and unpleasantness thus inflicted on him
are sufficient to entitle him to invoke the prohibitions laid down by the Treaty.

26. It may be that Mr Konstantinidis is not legally compelled to use the objectionable spelling of
his name in his social and professional life and that it is only required on certificates of civil
status (birth, marriage, death, etc.). It might be argued that, if that is the case (and the
position is not, as I have observed, entirely clear) and the unwanted spelling need only exist in
the dusty archives of the State or on copies of certificates that can lie buried at the bottom of a
drawer, then there is nothing to complain of. I do not agree. Birth, marriage and death are the
most significant and sacred events in a person' s existence. The entries made in official registers
to record such events and the corresponding certificates issued to the person concerned are of such
obvious importance that the migrant worker should be entitled to demand that he, like any citizen
of the host country, be properly identified in those documents and have his name written in a
manner that is not insulting and offensive to him. From a purely practical viewpoint, it should in
any event be noted that, even if Mr Konstantinidis is legally free to write his name as he pleases
for social and professional purposes, he would inevitably feel some pressure to use the spelling
prescribed for official documents; discrepancies between those documents and his everyday practice,
regarding the spelling of his name, might cause him inconvenience and embarrassment and would be a
source of unnecessary confusion for all concerned. At the hearing Mr Konstantinidis argued
convincingly that he would suffer great discomfort if he were forced to adopt two different
identities: one for official use in his dealings with the German State and another for use in his
social and professional life.

27. Thus I conclude that ultimately it does not matter whether the distorted spelling of Mr
Konstantinidis' name is required only in official documents or whether he is also obliged to use it
for the purposes of social and commercial intercourse or whether he sustains financial loss as a
result. Even as regards entries in official registers he is entitled to the same treatment as
German nationals, unless there is objective justification for treating him differently.

28. The German Government, which concedes that Greek nationals are treated differently from
nationals of other Member States, in so far as only the names of the former undergo
transliteration, contends that the difference in treatment is objectively justified because it is
necessary in order to make Greek names legible in non-Greek-speaking countries. I do not agree with
that argument. Obviously, there is every justification for requiring the names of Greek migrant
workers to be written in Roman characters in the 11 Member States that do not use the Greek
alphabet. If they were not so written, they would be incomprehensible to most of the officials and
citizens of the host State. But that does not mean that there is objective justification for
writing Greek names in a manner that is unphonetic, illogical, arbitrary, inconsistent with
long-established practice and offensive to the persons concerned.

29. The German Government makes no attempt to defend the merits of the ISO system of
transliteration. Instead, it seeks to justify the use of that system on the ground that it is
prescribed by an international convention (to which Greece has also adhered) and thus ensures
consistency and uniformity, inasmuch as Greek names will be written in the same way in all the
contracting States. There are several defects in that argument. In the first place, it is
questionable whether uniformity is necessary or desirable. The German Government does not state
what problems would be caused if the transliteration of Greek names were allowed to vary from
country to country, in accordance with the different phonetic values attributed to the Roman
characters. There is no suggestion that fiscal and social security fraud, or criminal activity in
general, would be greatly facilitated. Secondly, the Convention in question does not in fact
achieve uniformity since only seven States (including five Member States) have adhered to it. (5)
Thirdly, even if uniformity were desirable, it is difficult to see what justification there could
be for achieving it by means of a system of transliteration that produces serious phonetic
distortion, irrespective of the target language. It is doubtful whether there is any language in
the world in which names written "Hréstos" and "Puharés" would be pronounced in a manner remotely
resembling the Greek names ******* (Christos) and ******* (Psycharis).

30. Finally, I do not think that matters are changed much by Greece' s having adhered to the
Convention of 13 September 1973. It is perhaps strange that the Greek Government is now objecting
to the use of a system of transliteration which is prescribed, indirectly, by a Convention to which
it is itself a party. One possible explanation is that, when the Greek Government acceded to the
Convention on 19 March 1987, it did not know that the ISO would later adopt a transliteration
system of which it strongly disapproves. In any event, it is clear that if Mr Konstantinidis is
entitled under Community law to object to the misspelling of his name, such a right cannot be taken
away from him by the Convention of 13 September 1973 or by Greece' s accession to that Convention
in 1987.

(b) The issue of fundamental rights

31. Since it follows from what I have said above that this case may be disposed of on the basis of
discrimination, it is not in my view strictly necessary to deal with the issue of fundamental
rights. Since, however, the issue has been raised and is of general importance, I shall examine it
in some detail.

32. The Amtsgericht Tuebingen observes in its Order for Reference that the attitude of the German
authorities towards Mr Konstantinidis might infringe his general right of personal identity. That
is presumably a reference to Article 2 of the Grundgesetz (the German Constitution), which provides
that everyone has the right to develop his personality in so far as he does not infringe the rights
of others and does not act in breach of the constitutional order or public morality. The German
court may also be thinking of Article 1, paragraph 1, of the Grundgesetz, which states that the
dignity of the individual is inviolable and must be protected by all organs of the State.

33. The Commission refers expressly to Article 2 of the Grundgesetz and also to Articles 5 and 8 of
the European Convention on Human Rights. Article 5 grants the right to liberty and security, while
under Article 8 everyone is entitled to respect for his private and family life, his home and his
correspondence. The Commission considers that a requirement to spell one' s name in a particular
way may in certain circumstances infringe fundamental rights protected by Community law. In
particular, that would be the case if such a requirement affected the right to free movement
guaranteed by the Treaty.

34. In my view, two questions need to be considered. First, it is necessary to decide whether the
treatment of Mr Konstantinidis, as regards the spelling of his name, is contrary to the European
Convention on Human Rights or to any other human rights instrument or constitutional principle, the
observance of which the Court must ensure within the sphere of Community law. If that is the case,
it will be necessary to determine secondly whether the mere fact that Mr Konstantinidis is
exercising his freedom of establishment under Article 52 of the Treaty is sufficient to bring the
case within the sphere of Community law for these purposes, i.e. whether Member States are
required, as a matter of Community law, to respect the fundamental rights of persons who exercise
their rights of free movement under the Treaty.

35. The European Convention on Human Rights does not contain any provision which expressly affirms
the individual' s right to his name and personal identity. In that respect it is in marked contrast
to the American Convention on Human Rights, which provides in Article 18 that "Every person has the
right to a given name and to the surnames of his parents or that of one of them." That instrument
does not of course form part of the Community legal order. One instrument which the Court has
sometimes been willing to draw on as a source of fundamental rights is the International Covenant
on Civil and Political Rights, adopted by the United Nations General Assembly in 1966. The
Covenant, which has been ratified by all the Member States except Greece, was mentioned by the
Court in its judgments in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 31, and Joined
Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 68. Article 24(2) of the Covenant
states that "Every child shall be registered immediately after birth and shall have a name." It
might well be possible to infer from that provision that if human beings are entitled to be given a
name on birth they are entitled to keep that name throughout their lives and to object to
unjustified changes in its orthography.

36. More surprising than the omission, from the European Convention on Human Rights, of a specific
reference to the individual' s right to his name and personal identity is the absence of a general
provision recognizing the individual' s right to be treated with respect for his dignity and moral
integrity (apart from the prohibition in Article 3 of "degrading treatment" which, in its context,
was no doubt intended to be of more limited scope). To some extent, that omission is repaired by
provisions in the Constitutions of many Member States, including, as we have seen, the German
Grundgesetz.

37. Under Article 10(1) of the Spanish Constitution the dignity of the individual and the free
development of his personality inter alia are the foundations of the political order and social
peace. Article 15 grants everyone the right to life and physical and moral integrity, while Article
18 guarantees the right to honour, personal and family privacy and the individual' s image. In
Portugal Article 25 of the Constitution states that the moral and physical integrity of persons is
inviolable, while Article 26(1) grants everyone the right to inter alia his personal identity, good
name and reputation, image and privacy. Under Article 2 of the Greek Constitution respect for, and
protection of, the value of the human being constitute the primary obligation of the State. Article
5 grants every person the right to develop freely his personality. In Ireland Article 40.1 of the
Constitution states that all citizens shall, as human persons, be held equal before the law. Under
Article 40.3.1 the State guarantees to respect the personal rights of the citizen, while Article
40.3.2 requires the State to protect in particular the life, person, good name and property rights
of every citizen. Article 40.3 is not confined to the specific rights set out there, but may be
extended to all rights which "result from the Christian and democratic nature of the State": Ryan v
Attorney General 1965 IR 294, per Kenny J. In Italy Article 3 of the Constitution grants all
citizens "equal social dignity" and Article 22 provides that no one may, for political reasons, be
deprived of his legal capacity, citizenship or name.

38. The last example is of particular interest because it is, so far as I know, the only
constitutional provision in a Member State which expressly prohibits the State from depriving a
citizen of his name. The explanation for such a prohibition is that in the fascist period of
Italian history certain ethnic minorities were forced to italianize their names (see U. de Siervo,
in Commentario della Costituzione, edited by G. Branca, Rapporti Civili, Arts 22 and 23, 1978, p.
20). At first sight the words "for political reasons" might suggest that citizens may be deprived
of their names for "non-political" reasons. However, it has been suggested that that is not the
case and that the jus nominis guaranteed by the Italian Constitution is an absolute right not
subject to any limitations. (V. Falzone, F. Palermo and F. Cosentino, La Costituzione della
Repubblica Italiana, 1969, p. 87).

39. It is possible to infer from the above provisions in particular, and from the constitutional
traditions of the Member States in general, the existence of a principle according to which the
State must respect not only the physical well-being of the individual but also his dignity, moral
integrity and sense of personal identity. I do not think there can be any doubt that those "moral
rights" are violated if a State compels someone to abandon or modify his name, unless at any rate
it does so for a very good reason. (For example, if the name, when used for commercial purposes,
creates confusion with the goods of another trader it may be legitimate to restrict the use of the
name for those purposes.)

40. A person' s right to his name is fundamental in every sense of the word. After all, what are we
without our name? It is our name that distinguishes each of us from the rest of humanity. It is our
name that gives us a sense of identity, dignity and self-esteem. To strip a person of his rightful
name is the ultimate degradation, as is evidenced by the common practice of repressive penal
regimes which consists in substituting a number for the prisoner' s name. In the case of Mr
Konstantinidis the violation of his moral rights, if he is compelled to bear the name "Hréstos"
instead of "Christos", is particularly great; not only is his ethnic origin disguised, since
"Hréstos" does not look or sound like a Greek name and has a vaguely Slavonic flavour, but in
addition his religious sentiments are offended, since the Christian character of his name is
destroyed. At the hearing Mr Konstantinidis pointed out that he owes his name to his date of birth
(25 December), Christos being the Greek name for the founder of the Christian ° not "Hréstian" °
religion.

41. In view of the above considerations I do not think that it would be right to say that the
German authorities' treatment of Mr Konstantinidis is necessarily consistent with the European
Convention on Human Rights simply because the Convention does not contain express provisions
recognizing the individual' s right to his name or protecting his moral integrity. On the contrary,
I consider that it ought to be possible, by means of a broad interpretation of Article 8 of the
Convention, to arrive at the view that the Convention does indeed protect the individual' s right
to oppose unjustified interference with his name.

42. The more difficult question is to determine whether a person who exercises his right of free
movement under Articles 48, 52 or 59 of the Treaty is entitled, as a matter of Community law, to
object to treatment which constitutes a breach of his fundamental rights. On that point the Court'
s case-law has developed considerably in recent years. The most complete statement of the present
position is contained in the judgment in Case C-260/89 ERT [1991] ECR I-2925, where the Court said:

"41. With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth
and tenth questions, it must first be pointed out that, as the Court has consistently held,
fundamental rights form an integral part of the general principles of law, the observance of which
it ensures. For that purpose the Court draws inspiration from the constitutional traditions common
to the Member States and from the guidelines supplied by international treaties for the protection
of human rights on which the Member States have collaborated or of which they are signatories (see,
in particular, the judgment in Case C-4/73 Nold v Commission [1974] ECR 491, paragraph 13). The
European Convention on Human Rights has special significance in that respect (see in particular
Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651,
paragraph 18). It follows that, as the Court held in its judgment in Case C-5/88 Wachauf v Federal
Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are
incompatible with observance of the human rights thus recognized and guaranteed.

42. As the Court has held (see the judgment in Joined Cases C-60 and C-61/84 Cinéthèque v
Fédération Nationale des Cinémas Français [1985] ECR 2605, paragraph 25, and the judgment in Case
C-12/86 Demirel v Stadt Schwaebisch Gmund [1987] ECR 3719, paragraph 28), it has no power to
examine the compatibility with the European Convention on Human Rights of national rules which do
not fall within the scope of Community law. On the other hand, where such rules do fall within the
scope of Community law, and reference is made to the Court for a preliminary ruling, it must
provide all the criteria of interpretation needed by the national court to determine whether those
rules are compatible with the fundamental rights the observance of which the Court ensures and
which derive in particular from the European Convention on Human Rights.

43. In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in
order to justify rules which are likely to obstruct the exercise of the freedom to provide
services, such justification, provided for by Community law, must be interpreted in the light of
the general principles of law and in particular of fundamental rights. Thus the national rules in
question can fall under the exceptions provided for by the combined provisions of Articles 56 and
66 only if they are compatible with the fundamental rights the observance of which is ensured by
the Court.

44. It follows that in such a case it is for the national court, and if necessary, the Court of
Justice to appraise the application of those provisions having regard to all the rules of Community
law, including freedom of expression, as embodied in Article 10 of the European Convention on Human
Rights, as a general principle of law the observance of which is ensured by the Court."

43. That judgment does not establish clearly, one way or the other, whether Mr Konstantinidis may,
as a matter of Community law, invoke the protection of his fundamental rights in the circumstances
of the present case. The following points may be noted.

44. First, it cannot be said that the regulations at issue in this case lie entirely outside the
scope of Community law since they are, when applied to migrant workers, capable of having a
particularly adverse effect on the nationals of one Member State. Secondly, there are now at least
two situations in which Community law requires national legislation to be tested for compliance
with fundamental rights: namely (a) when the national legislation implements Community law
(paragraph 19 of the Wachauf judgment) and (b) when a Treaty provision derogating from the
principle of free movement is invoked in order to justify a restriction on free movement (paragraph
43 of the ERT judgment). Thus it is clear that if, as I have suggested, the German authorities'
treatment of Mr Konstantinidis constitutes discrimination prohibited by Articles 7 and 52 of the
Treaty, there can be no question of its being justified on grounds of public policy under Article
56(1) if it infringes his fundamental rights.

45. But let us suppose that the view is taken that the German authorities' treatment of Mr
Konstantinidis is not discriminatory. Does that mean that it cannot be contrary to Article 52, even
though it infringes Mr Konstantinidis' fundamental rights? The implications of that question are
perhaps easier to see if a more dramatic example is considered. Suppose that a Member State
introduces a draconian penal code under which theft is punishable by amputation of the right hand.
A national of another Member State goes to that country in exercise of the rights of free movement
conferred on him by Article 48 et seq. of the Treaty, steals a loaf of bread and is sentenced to
have his right hand cut off. Such a penalty would undoubtedly constitute inhuman and degrading
punishment contrary to Article 3 of the European Convention on Human Rights. But would it also be a
breach of the individual' s rights under Community law, even though it were applied in a
non-discriminatory manner? I believe that it would.

46. In my opinion, a Community national who goes to another Member State as a worker or
self-employed person under Articles 48, 52 or 59 of the Treaty is entitled not just to pursue his
trade or profession and to enjoy the same living and working conditions as nationals of the host
State; he is in addition entitled to assume that, wherever he goes to earn his living in the
European Community, he will be treated in accordance with a common code of fundamental values, in
particular those laid down in the European Convention on Human Rights. In other words, he is
entitled to say "civis europeus sum" and to invoke that status in order to oppose any violation of
his fundamental rights.

47. Three arguments might be advanced to counter that proposition: first, that it would be
inconsistent with the Court' s existing case-law, according to which Article 52 has generally been
understood as nothing more than a prohibition of discrimination against nationals of other Member
States (see, for example, P. Troberg, in Kommentar zum EWG-Vertrag, by Von der Groeben, Thiesing
and Ehlermann (Editors), 4th edition, 1991, paragraphs 37 and 38 on Article 52, p. 952 et seq.);
second, that it would lead to "reverse" discrimination against nationals of the host State; third,
that it would create an overlap between the jurisdiction of the Court of Justice and that of the
European Court of Human Rights, with the possibility of conflicting decisions. None of those
arguments is convincing.

48. As regards the first argument, although most of the cases in which the Court has recognized a
breach of Article 52 concerned discriminatory measures, I do not think that the case-law should be
read as establishing that a measure can never be contrary to Article 52 simply because it is
non-discriminatory (see on the one hand the comments of Advocate General Lenz in Case 221/85
Commission v Belgium [1987] ECR 719, at p. 730 et seq, and on the other hand the comments of
Advocate General Van Gerven in Case C-340/89 Vlassopoulou [1991] ECR I-2357, at page 2370,
paragraph 10). It is perhaps not unreasonable that, as regards technical obstacles to freedom of
establishment, a person who moves to another Member State should in general have to comply with the
local legislation (e.g. a rule that restaurateurs should have several years' experience in the
catering trade), though I question whether, even on a technical level, a disproportionate
restriction or one entirely devoid of justification could be applied against a national of another
Member State (see the judgment in Case C-351/90 Commission v Luxembourg [1992] ECR I-3945, at
paragraph 14). But when a breach of fundamental rights is in issue, I do not see how the
non-discriminatory nature of the measure can take it outside the scope of Article 52. Indeed, the
proposition that a Member State may violate the fundamental rights of nationals of other Member
States, provided that it treats its own nationals in the same way, is untenable.

49. As regards the second argument, I do not think that the danger of reverse discrimination can be
a valid argument for limiting the scope of the rights conferred by the Treaty on persons who seek
their livelihood in another Member State. The notion that the free movement provisions of the
Treaty merely prohibit discriminatory measures was abandoned long since in relation to goods (in
the "Cassis de Dijon" judgment; Case 120/78 Rewe v Bundesmonopolverwaltung fuer Branntwein [1979]
ECR 649) and more recently in relation to the provision of services (Case C-76/90 Saeger v
Dennemeyer [1991] ECR I-4221, paragraph 12). Once it is accepted that the Treaty requires more than
the abolition of discrimination, it follows ex hypothesi that a Member State may in certain
circumstances be obliged to treat producers or workers from other Member States more favourably
than it treats its own producers and workers.

50. As regards the third argument, the danger of an overlap between the jurisdiction of the Court
of Justice and the European Court of Human Rights would not in fact be great. The latter has always
stressed that its jurisdiction is subsidiary, in the sense that it is primarily for the national
authorities and the national courts to apply the Convention (see especially the judgment of that
court of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A No 6, p. 35, § 10 in
fine, the Handyside judgment of 7 December 1976, Series A No 24, p. 22, § 48 and the Eckle judgment
of 15 July 1982, Series A No 51, pp. 30-31, § 66 in fine). In any event, applicants must first,
under Article 26 of the Convention, exhaust the remedies available under domestic law, which
includes of course the possibility of a reference for a preliminary ruling under Article 177 of the
Treaty. Thus, if the Court of Justice were to extend the circumstances in which the Convention may
be invoked under Community law, the result would simply be to increase the likelihood of a remedy
being found under domestic law, without the need for an application to the organs established by
the Convention.

51. As for the possibility of conflicting rulings on the interpretation of the Convention, that has
existed ever since the Court of Justice recognized that the Convention may be invoked under
Community law. Such a possibility does not seem to have caused serious problems. It would in any
event be paradoxical if the existence of the Convention and the system established under the
Convention were to reduce the protection available in national law or in Community law.

Conclusion

52. I am accordingly of the opinion that the questions referred to the Court by the Amtsgericht
Tuebingen should be answered as follows:

Where a national of a Member State establishes himself, pursuant to Article 52 of the EEC Treaty,
in another Member State which uses an alphabet different from the one used in his own State,
Articles 7 and 52 of the Treaty are infringed by rules or practices of the host State which require
his name to be entered in a register of civil status, against his wishes, in a transliteration
which, as in circumstances such as those of the present case, seriously misrepresents the correct
pronunciation of the name.

(*) Original language: English.


Judgment of the Court (Sixth Chamber) of 30 March 1993. - Case C-168/91.


Summary


There is nothing in the Treaty to preclude a Member State which uses the Roman alphabet from
transcribing a Greek name in Roman characters in its registers of civil status. Where it undertakes
such transcription, it is for that State to adopt legislative or administrative measures laying
down the detailed rules for such transcription, in accordance with the prescriptions of any
international conventions relating to civil status to which it is a party. Such rules are to be
regarded as incompatible with Article 52 of the Treaty only in so far as their application causes a
Greek national such a degree of inconvenience as in fact to interfere with his freedom to exercise
the right of establishment enshrined in that article.

Such interference occurs if a Greek national is obliged by the legislation of the State in which he
is established to use, in the pursuit of his occupation, a spelling of his name derived from the
transliteration used in the registers of civil status if that spelling is such as to modify its
pronunciation, with the risk that potential clients may confuse him with other persons.

Parties


In Case C-168/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Amtsgericht Tuebingen (Federal
Republic of Germany) for a preliminary ruling in the proceedings pending before that court
concerning the civil status of

Christos Konstantinidis

on the interpretation of Articles 5, 7, 48, 52, 59 and 60 of the EEC Treaty,

THE COURT (Sixth Chamber),

composed of: C.N. Kakouris, President of the Chamber, G.F. Mancini, F.A. Schockweiler, M. Diez de
Velasco and P.J.G. Kapteyn, Judges,

Advocate General: F.G. Jacobs,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° the German Government, by E. Roeder, Ministerialrat in the Federal Ministry for the Economy, and
C.-D. Quassowski, Regierungsdirektor in the same Ministry, acting as Agents,

° the Greek Government, by D. Raptis, State Legal Advisor, acting as Agent,

° the Commission of the European Communities, by D. Gouloussis, Legal Adviser, assisted by R.
Hayder, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Christos Konstantinidis, the German Government, the Greek
Government and the Commission at the hearing on 29 October 1992,

after hearing the Opinion of the Advocate General at the sitting on 9 December 1992,

gives the following

Judgment

Grounds


1 By order of 27 June 1991, received at the Court on 1 July 1991, the Amtsgericht Tuebingen (Local
Court, Tuebingen), Federal Republic of Germany, referred to the Court for a preliminary ruling
under Article 177 of the EEC Treaty two questions on the interpretation of Articles 5, 7, 48, 52,
59 and 60 of the EEC Treaty.

2 Those questions were raised in civil status proceedings concerning Christos Konstantinidis to
which the Standesamt (Registry Office), Altensteig, and Landratsamt Calw, Ordnungsamt (Registration
Department of the Calw District Office) are also parties.

3 The applicant in the main proceedings is a Greek national residing in Altensteig, in the Federal
Republic of Germany. He works there as a self-employed masseur and assistant hydrotherapist.
According to his Greek birth certificate, his first name is ******* and his surname is
**************.

4 On 1 July 1983, he was married at the Registry Office in Altensteig. In the register of
marriages, his name was spelt "Christos Konstadinidis". On 31 October 1990, he applied to the
Registry Office in Altensteig for the entry of his surname in that register to be rectified by
changing it from "Konstadinidis" to "Konstantinidis" on the ground that the latter spelling
indicated as accurately as possible to German speakers the correct pronunciation of his name in
Greek and that it was, moreover, the way in which his name was transcribed in Roman characters in
his Greek passport.

5 Since the entry of the applicant' s name in the register of marriages should correspond to that
appearing on his birth certificate, the Amtsgericht Tuebingen, the court having jurisdiction to
order the rectification of entries, obtained a translation of the birth certificate. The name was
transcribed, in accordance with the administrative provisions in force and with the consistent
case-law of the higher courts in Germany, by applying ISO Standard 18 as prescribed by Article 3 of
the Convention on the Representation of Names and Surnames in Registers of Civil Status of 13
September 1973 (Bundesgesetzblatt 1976 II, p. 1473, hereinafter "the Convention") which provides
that names should be transliterated. The Convention entered into force in the Federal Republic of
Germany on 16 February 1977 (Bundesgesetzblatt 1977 II, p. 254); the Hellenic Republic became a
party to the Convention in 1987. If ISO Standard 18 is applied, the transcription of the applicant'
s name becomes "Hréstos Kónstantinidés".

6 The applicant objected to that transcription before the Amtsgericht Tuebingen, arguing that it
distorted the pronunciation of his name.

7 The District Office in Calw, to which the Registry Office in Altensteig is responsible, then made
a separate application for the register of marriages to be rectified so that the applicant' s name
should appear as "Hréstos Kónstantinidés" in accordance with ISO Standard 18.

8 The Amtsgericht Tuebingen considered that the proceedings raised problems of interpretation of
Community law and decided to refer the following questions to the Court for a preliminary ruling:

"1. Is it an encroachment, contrary to Articles 5 and 7 of the Treaty establishing the European
Economic Community, on the rights of a national of a Member State of the European Communities who
is an employed or self-employed person covered by Articles 48, 52 and 59 et seq. of the said Treaty
for him to be obliged to allow his name to be entered in the registers of civil status of his host
country, another Member State, against his express wishes, in a spelling differing from the
phonetic transcription, whereby its pronunciation is modified and distorted?

Specifically, does the fact that the Greek name Christos Konstantinidis (in a direct phonetic
transcription) thus becomes 'Hréstos Kónstantinidés' constitute such an encroachment?

2. Does such a fact constitute an interference with the freedom of establishment and freedom to
provide services laid down in Articles 52, 59 and 60 of the Treaty establishing the European
Community?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case in
the main proceedings, the applicable legislation and the observations submitted to the Court, which
are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the
Court.

10 As a preliminary point, it is to be noted that, as appears from the order for reference, the
applicant in the main proceedings is a Greek national working in the Federal Republic of Germany as
a self-employed masseur and assistant hydrotherapist.

11 In those circumstances, the national court' s two questions are to be regarded as seeking to
ascertain, in substance, whether Article 52 of the Treaty is to be interpreted as meaning that it
is contrary to that provision for the name of a Greek national who has settled in another Member
State in order to pursue an occupation as a self-employed person to be entered in the registers of
civil status of that State in a spelling differing from the phonetic transcription, whereby its
pronunciation is modified and distorted.

12 In answering that question, it must first be borne in mind that, as the Court has stated on
numerous occasions, Article 52 of the Treaty constitutes one of the fundamental legal provisions of
the Community. By prohibiting any discrimination on grounds of nationality resulting from national
laws, regulations or practices, that article seeks to ensure that, as regards the right of
establishment, a Member State accords to nationals of other Member States the same treatment as it
accords to its own nationals (judgment in Case 197/84 Steinhauser v City of Biarritz [1985] ECR
1819, paragraph 14).

13 It must therefore be determined whether national rules relating to the transcription in Roman
characters of the name of a Greek national in the registers of civil status of the Member State in
which he is established are capable of placing him at a disadvantage in law or in fact, in
comparison with the way in which a national of that Member State would be treated in the same
circumstances.

14 There is nothing in the Treaty to preclude the transcription of a Greek name in Roman characters
in the registers of civil status of a Member State which uses the Roman alphabet. It is therefore
for the Member State in question to adopt legislative or administrative measures laying down the
detailed rules for such transcription, in accordance with the prescriptions of any international
conventions relating to civil status to which it is a party.

15 Rules of that kind are to be regarded as incompatible with Article 52 of the Treaty only in so
far as their application causes a Greek national such a degree of inconvenience as in fact to
interfere with his freedom to exercise the right of establishment enshrined in that article.

16 Such interference occurs if a Greek national is obliged by the legislation of the State in which
he is established to use, in the pursuit of his occupation, a spelling of his name derived from the
transliteration used in the registers of civil status if that spelling is such as to modify its
pronunciation and if the resulting distortion exposes him to the risk that potential clients may
confuse him with other persons.

17 It should therefore be stated in reply to the national court that Article 52 of the Treaty must
be interpreted as meaning that it is contrary to that provision for a Greek national to be obliged,
under the applicable national legislation, to use, in the pursuit of his occupation, a spelling of
his name whereby its pronunciation is modified and the resulting distortion exposes him to the risk
that potential clients may confuse him with other persons.

Decision on costs


Costs

18 The costs incurred by the German Government, the Greek Government and the Commission of the
European Communities, which have submitted observations to the Court, are not recoverable. Since
these proceedings are, for the parties to the main proceedings, a step in the proceedings pending
before the national court, the decision on costs is a matter for that court.

Operative part


On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Amtsgericht Tuebingen, by order of 27 June 1991,
hereby rules:

Article 52 of the Treaty must be interpreted as meaning that it is contrary to that provision for a
Greek national to be obliged, under the applicable national legislation, to use, in the pursuit of
his occupation, a spelling of his name whereby its pronunciation is modified and the resulting
distortion exposes him to the risk that potential clients may confuse him with other persons.