14 mai 2011

ECJ changes its case law on writing foreign names, Runevič-Vardyn & Wardyn, C‑391/09

5 judges of the ECJ adopted a completely unexpected (at least for me) judgment on writing of foreign names. Lithuanian citizen of Polish origin Malgožata Runevič-Vardyn wanted her name to be written "Małgorzata Runiewicz Wardyn" as it is required by Polish spelling rules, and her husband (citizen of Poland) Łukasz Paweł Wardyn was not satisfied with the decision of Lithuanian authorities to write his name "Lukasz Pawel" without Polish "Ł".

I was pretty sure that the ECJ would support this ethnic minority but they lost the proceedings. Previously in case Konstantinidis, C-168/91, a Greek national wanted to write his surname "Konstantinidis", but Germans insisted on writing "Konstantinides". So in that case the ECJ supported the Greeks against Germans. However now, for some unknown reasons, this Court decided to change its case law. The judges ignored completely the very existence of Konstantinidis, and dismissed the Polish desire for the following reasons:

1) the principle of ethnic non-discrimination is applicable to provision of services, and spelling of a name in a document is not a "service" under Directive 2000/43 (§ 45).
2) While adopting the latter Directive, the European Parliament wanted to specify that the principle of ethnic non-discrimination is applicable to "the exercise by any public body <...> of its functions", but the EU Council worded it differently: the principle of ethnic non-discrimination is applicable "as regards both public and private sectors, including public bodies" (§ 46). Hey, is it really that different?
3) Yes, Lithuanians will not write your name as you want, but you can still live in that country (§§ 70 and 74).
4) Diacritical marks (Ą, Ę, Ł, Ć, Ń, Ó, Ś, Ź, Ż) are anyway not supported by certain computer systems (§ 81).
5) Anyway Lithuanians will not understand the meaning of diacritical marks (Ą, Ę, Ł, Ć, Ń, Ó, Ś, Ź, Ż), and will not notice them (§ 81).
6) Respect for national identity of the host State and for its official language must be given priority over cultural and linguistic diversity.

Another interesting point that I cannot explain: the ECJ wrote that the Government of Poland decided not to support the Polish ethnic minority in this dispute in § 37 of the judgment.

3 commentaires:

Dr Fernand de Varennes a dit…

That is both interesting and unfortunate: the Advocate General's position were in my view stronger. I have written on the issue of names in international (and European) law. Unfortunately, European judges react in a very restrictive in relation to "minority" rights, especially if it relates to a government's official language policy. The UN Human Rights Committee under the ICCPR has a better (and legally more logical) response to alleged violations of human rights involving official language preference.

Stanislovas a dit…

This is an attitude of people who spent all their life in a little village and for whom foreign names look scaring:) It is strange that the ECJ supported this, and violated its own case law on Greek surnames - possibly the attorney of the Polish minorities did not use this argument - anyway - the judges simply didn't want to help.

Another interesting point is how to force the EU or Lithuania to respect UN Human Rights Committee case law:)

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