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Language of document : ECLI:EU:C:2014:296

ConclusionsC01012013IVENL_Cnc_Mess_Fr.xmlTRA-DT-FR-CONCL-C-0101-2013-201403626-01_00.xmlCNCRPLitige0DEFÉDITION PROVISOIRE DU 23/12/20131Texte pour publication00-0Document201P1C:\Users\paa\AppData\Local\Temp\canevas\Litige.xml4/25/2014False0CNC§104;pos=32930:lng=EN^CONVERSION^rv@TRA-DOC-EN-CONCL-C-0101-2013-201403626-06_90Doc2XML_2003_TRAD_SUIVI2C:\Program Files\Doc2XML\XML\PR_Doc2XML_2003_TRAD_SUIVI2.xmlO:\GTiWebTools\Automates\Suivi_II\conversion\doc2xml_trad\In\UNCLASSIFIEDNormalIRECTrueTrue()Doc2XML_2003_PC_TRAD SV2_PUBC:\Documents and Settings\gti_prod\Application Data\Doc2XML\PR_Doc2XML_2003_SV2_PUB.xmlP:\GTiWebTools\Automates\Suivi_II\conversion\doc2xml_pub\In\OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 30 April 2014 (2)

Case C‑101/13

Stadt Karlsruhe

(Request for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany))

(Passports — Regulation (EC) No 2252/2004 — Minimum security standards for passports and travel documents issued by the Member States — Legal effect of the reference to Part 1 (Machine Readable Passports) of Document 9303 of the International Civil Aviation Organisation — Primary identifier, secondary identifier and optional personal data elements — Legislation of a Member State providing that the holder’s birth name must appear on the personal data page of the passport, in the field reserved for the primary identifier, even if it is not legally part of the name of the person concerned — Inclusion of an untranslated abbreviation in the field reserved for the primary identifier)

I – Introduction

1. The request for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg) (Germany) which is pending before the Court was made in the course of proceedings between a German national, Mr U, and the Stadt Karlsruhe (City of Karlsruhe) (Germany) concerning the refusal of the latter to amend the form in which his birth name appears in his German passport.

2. The applicable German legislation provides that, as regards the details of its holder, the passport must contain his ‘surname and birth name’, ‘forenames’ and ‘doctoral title’. The result of this, in the present case, is that the birth name of the applicant in the main proceedings appears in his passport alongside his surname, even though, according to the national court, his birth name is not legally part of his name.

3. In this context, the referring court has raised questions concerning the interpretation of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, (3) as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 6 May 2009 (4) (‘Regulation No 2252/2004’). That regulation refers to Document 9303 (Machine Readable Travel Documents) of the International Civil Aviation Organisation (ICAO), more specifically to Part 1, concerning machine readable passports (‘Part 1 of ICAO Document 9303’), (5) which lays down the formatting specifications.

4. It asks the Court, inter alia, to settle the question of whether and how a birth name which is no longer part of the person’s name can be included in the passport as a primary identifier (Field 06 of the passport), as a secondary identifier (Field 07) or as supplementary information (Field 13), taking into account also the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).

II – Legal framework

A – EU law

5. Regulation No 2252/2004 updates a resolution of the representatives of the Governments of the Member States, meeting within the Council, of 17 October 2000, by which minimum security standards for passports had been introduced. That regulation seeks to achieve enhanced harmonised security standards for passports and travel documents in order to protect them against falsification. (6)

6. Recitals 8 and 9 in the preamble thereto are worded as follows:

‘(8): With regard to the personal data to be processed in the context of passports and travel documents, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data applies. It should be ensured that no further information shall be stored in the passport unless provided for in this Regulation, its annex or unless it is mentioned in the relevant travel document.

(9): In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objective of introducing common security standards and interoperable biometric identifiers to lay down rules for all Member States giving effect to the Convention implementing the Schengen Agreement of 14 June 1985. This Regulation does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty.’

7. The annex to that regulation serves, for its part, to lay down the minimum level of security that the Member States’ passports and travel documents are required to provide. The provisions of that annex are concerned primarily with the passport’s biographical data page. (7) The annex renders Part 1 of ICAO Document 9303 applicable, in the following terms: (8)

‘The passport or travel document shall contain a machine readable biographical data page, which shall comply with [Part 1 of ICAO Document 9303] and the way they are issued shall comply with the specifications for machine readable passports set out therein’.

B – Part 1 of ICAO Document 9303

8. Part 1 of ICAO Document 9303 concerns machine readable passports (MRPs). (9) It is made up of four sections, of which the final section, Section IV, contains the technical specifications for such passports. Section IV provides, in substance, as follows.

9. The front of the MRP data page is divided into Zones I-V, which together constitute a ‘visual inspection zone’, and Zone VII, which is a ‘machine-readable zone’. (10) Zone II comprises certain personal data. (11)

10. The ‘name’ appears in Fields 06 and 07 of Zone II on the personal data page of the passport.

11. Field 06 is intended for the ‘primary identifier’, while Field 07 is intended for the ‘secondary identifier’.

12. Field 13 may be used for ‘[o]ptional personal data elements e.g. personal identification number or fingerprint, at the discretion of the issuing State or organisation’. (12)

C – German legislation

1. The legislation relating to names

13. The birth name (‘Geburtsname’), that is to say the name entered in a person’s birth certificate, is the surname of the parents or one of the parents.

14. The surname (‘Familienname’) is either the birth name or a name acquired following a change of name.

15. A surname may be changed either following marriage, pursuant to the Civil Code (Bürgerliches Gesetzbuch) (‘BGB’), (13) or after a change of name request made under the Law on name change (Namensänderungsgesetz) of 5 January 1938. (14) It appears from the order for reference that, unless specifically declared, the birth name is no longer legally part of the name once it has been changed, (15) contrary to the provisions of the laws in force in other Member States. (16) The wording of the questions referred indicates that the present case concerns the latter situation.

16. It should also be noted that German law requires all persons to have a surname and at least one forename (‘Vorname’), in accordance with Paragraph 21(1), point 1, of the Law on civil status (Personenstandsgesetz) of 19 February 2007. (17) Furthermore, titles of nobility form part of the name under the constitutional law of the Weimar Republic. (18) An academic title, such as ‘Doktor’, on the other hand, does not form part of the name itself but is an adjunct which is recorded in the civil status register and appears in the passport alongside the surname. The right to a name is protected under Paragraph 12 of the BGB.

2. The legislation relating to passports

17. It follows from the first sentence of Paragraph 1(1) of the Law on passports (Passgesetz) of 19 April 1986 (19) that Germans entering or leaving the territory covered by that law are obliged to carry a valid passport and to use this to identify themselves.

18. The second sentence of Paragraph 4(1) of the Law on passports states that ‘[t]he passport shall contain, in addition to a photograph of the passport holder, his/her signature, the name of the issuing authority, the date of issue and the expiry date, the following information only about the passport holder:

1. Surname and birth name;

2. Forenames;

3. Doctoral title;

4. Religious name, artistic name. …’

19. Footnote 6 of Annex 11 to the Regulation implementing the Law on passports (Passverordnung) of 19 October 2007 (20) states that, ‘[w]here there is a birth name, this shall be given at least one full line. At the beginning of that line, five character spaces shall be occupied by the character sequence “GEB.” or “geb.”’. That term, which means ‘born’ in German, is not given in any other language.

III – The dispute in the main proceedings, the questions referred and the procedure before the Court

20. In the main proceedings, the applicant, Mr U, seeks to have the form in which his birth name appears in his German passport amended. (21) His surname is F and his forenames are S P. He holds the title of doctor. His birth name is E and is not part of his name. The ‘Name/Surname/Nom’ field in his passport contains the following entries, which appear over two lines:

‘DR F

GEB. E’

21. The applicant in the main proceedings considers that the way in which his name appears in his passport is incorrect, and that this leads to misunderstandings when he has to travel abroad on business. He claims that the inclusion in his passport, in the field used for the surname, of his birth name preceded by the abbreviation ‘GEB.’, which is not part of his name, has meant that, in business dealings with private individuals and when having visas issued, he has been referred to as, for example, ‘Mr GEB E’, ‘Mr E F’, ‘Dr F GEB E’ or ‘S E Dr F’.

22. For that reason, he requested that the details in his passport be amended in such a way that the allegedly incorrect entry be removed so as to make it unambiguously clear, including to non-Germans, that his name is ‘Dr F’. However, he does not say how this could be achieved, whether by removing his birth name, by creating a dedicated field for it (‘Geburtsname/Birth name/Nom de naissance’), or in any other way. Thus, he is not requesting that the birth name entry itself be removed from his passport but only that the incorrect entry in his passport be removed.

23. In those circumstances, the Baden-Württemberg Verwaltungsgerichtshof decided, by order of 26 February 2013, received at the Court on 28 February 2013, to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1): In accordance with the Annex to [Regulation No 2252/2004], must the [way in which] the personal data page of machine readable passports [is] issued by the Member States satisfy all the compulsory specifications of Part 1 [of Document 9303 of the ICAO]?

(2): If, in accordance with the Law on names of a Member State, a person’s name comprises his first name[s] and surname, are the Member States also entitled, in accordance with the Annex to Regulation (EC) No 2252/2004, in conjunction with Point 8.6 of Section IV of Part 1 [of ICAO Document 9303], to enter the name at birth as a primary identifier in Field 06 of the machine readable personal data page of the passport?

(3): If, in accordance with the Law on names of a Member State, a person’s name comprises his first name[s] and surname, are the Member States also entitled, in accordance with the Annex to Regulation (EC) No 2252/2004, in conjunction with Point 8.6 of Section IV of Part 1 [of ICAO Document 9303], to enter the name at birth as a secondary identifier in Field 07 of the machine readable personal data page of the passport?

(4): If either the second or third question is answered in the affirmative: is a Member State, in accordance with whose Law on names a person’s name comprises his first name[s] and surname, required, on the basis of the protection afforded to a person’s name under Article 7 of the [Charter] and Article 8 of the [ECHR], to state, in the relevant caption of the machine readable personal data page of a passport, that the name at birth is also entered in that field?

(5): If the fourth question is answered in the negative: by reason of the protection afforded to a person’s name under Article 7 of [the Charter] and Article 8 of the ECHR, is a Member State, in accordance with whose Law on names a person’s name comprises his first name[s] and surname and under whose Law on passports the fields on the machine readable personal data page of a passport are also to be given in English and French and in Field 06 of that page the name at birth is also to be provided on a [separate] line, preceded by the abbreviation “geb.” of the word “geboren” (born), also required to provide a translation in English and French of the abbreviation “geb”?

(6): If, in accordance with the Law on names of a Member State, a person’s name comprises his first name[s] and surname, are the Member Statse entitled, in accordance with the Annex to Regulation (EC) No 2252/2004, in conjunction with Point 8.6 of Section IV [of Part 1 of ICAO Document 9303], to enter the name at birth as an optional item of personal data in Field 13 of the machine readable personal data page of the passport?’

24. Written submissions were lodged by the applicant in the main proceedings as well as by the German Government and the European Commission, which were all represented at the hearing of 15 January 2014.

IV – Analysis

A – Introductory remarks

25. It must be noted as a preliminary point that a person’s name is a constituent element of his identity and of his private life, the protection of which is enshrined in Article 7 of the Charter and in Article 8 of the EHCR. Even though Article 8 of that convention does not refer to it explicitly, a person’s name, as a means of personal identification and a link to a family, none the less concerns his or her private and family life. (22)

26. Also, the use of a person’s birth name in a given context must be objectively justified, in accordance with Article 8 of the Charter, which establishes a fundamental right to the protection of personal data. This seems to me to be the case if it proves necessary for the purposes of identifying an individual. I would point out in this regard that, in Germany, there is no comprehensive system for identifying individuals on the basis of a social security number or a personal identification number, the birth name being the only ‘permanent’ element of the name capable of providing a means of distinguishing between persons who have the same name and are born on the same day, in the same town or in the same municipality.

27. With regard to the specific question of which types of personal data may be included in a passport, the Court had occasion, in Schwarz, (23) to give a ruling on the validity of Article 1(2) of Regulation No 2252/2004, on the inclusion of biometric data in passports, in the light of the provisions of the Charter.

28. Consequently, there is no need in this case to examine in depth the more general question of whether or not the Charter authorises the inclusion of a person’s birth name in his passport if this is not part of that person’s name under the rules of the law applicable. That said, I would point out that the inclusion of a person’s birth name in this way could thwart the objective of allowing the person concerned to dispense with his former name and, in some circumstances, could aggravate the risk of indirect discrimination based on nationality or ethnic origin.

29. Secondly, as regards the case-law of the Court, it should be made clear that the situation at issue here differs from that in a number of other recent cases relating to personal names which the Court has had occasion to hear and determine, particularly in cross-border situations, such as Garcia Avello, (24) Grunkin and Paul, (25) Sayn-Wittgenstein (26) and Runevič-Vardyn and Wardyn. (27) These cases, which raised general questions concerning the free movement of persons or European citizenship, do not provide direct answers to the questions raised in this case. However, the problems which Mr U claims to encounter may arise within the European Union, in so far as he uses his passport as a travel document for Member States which are not part of the Schengen Area.

30. Thirdly, in this case, the Court is called upon to specify whether and, if so, in what way an item of information required by the German legislation, that is to say the birth name, may be included in the passport, taking into account the provisions of Regulation No 2252/2004 and Part 1 of ICAO Document 9303, to which that regulation refers.

31. I would reiterate that Mr U is not opposed to his birth name being included in the passport, but asks only that the details given in the passport should be clear and unambiguous.

32. It should be noted that, in this case, the Court will have to give a ruling in the light of a document adopted by an international organisation which has been rendered applicable within the European Union by the reference made to it in Regulation No 2252/2004. The documents adopted by the ICAO, such as Part 1 of ICAO Document 9303, seek to standardise national practices to some extent. That particular context must not be forgotten when it comes to interpreting that document.

33. As regards travel documents, it is also important to point out the distinction between passports and identity cards, the former being the subject of EU legislation, unlike the latter. After all, while both identity cards and passports were the subject of Council resolutions, binding provisions were adopted only in respect of passports, in Regulation No 2252/2004. Identity cards are covered only by a 2006 resolution adopted by the representatives of the Member States meeting within the Council. (28) The second sentence of Article 1(3) of Regulation No 2252/2004, on the other hand, expressly states that it does not apply to them. This explains the differences that can be seen, as between the Member States, in the way in which the birth name appears in passports and identity cards. (29)

34. I would point out finally that the third and sixth questions are in fact hypothetical, in so far as they refer to legislative choices which the German legislature has not made. Nevertheless, it may be useful for the referring court to have answers to those questions in the event that it requires an interpretation of the relevant rules of EU law in order to provide a consistent interpretation of the Law on passports. For that reason, I consider those questions to be admissible.

B – The legal effect of the reference made by Regulation No 2252/2004 to Part 1 of ICAO Document 9303

35. By its first question, the referring court seeks in essence to determine whether, in accordance with the Annex to Regulation No 2252/2004, the partially machine readable personal data page of passports issued by the Member States must comply with, and satisfy, all the compulsory specifications set out in Part 1 of ICAO Document 9303.

36. In this regard, the referring court rightly points out that the primary purpose of Regulation No 2252/2004 is to enhance the security of travel documents in the European Union by introducing biometric data (biometric presentation of the facial photograph and digital fingerprints). The referring court considers that, in accordance with the wording of the annex to that regulation, the Member States are required to take into account all the specifications set out in Part 1 of ICAO Document 9303.

37. In my view, it is clear from the aforementioned annex that the machine readable personal data page must comply with Part 1 of ICAO Document 9303. Furthermore, the way in which the name is reproduced is of decisive importance for the purposes of establishing a person’s identity, which is the main objective of the passport and determines whether or not the document is secure. Added to this is the issue of the standardisation of passports in international relations, which is particularly important from a security point of view. So it is that the surname and forename have been referred to as elements of the uniform passport in the various resolutions adopted since 1981. (30)

38. It is true that, at international level, Part 1 of ICAO Document 9303 is only a recommendation and has no mandatory force. Nevertheless, it is clear from Article 1(1) of Regulation No 2252/2004, read in conjunction with its annex, that the European Union endorsed those recommendations and adopted them as secondary law in the form of binding provisions. (31) In other words, the EU legislature sought to achieve greater uniformity, as is apparent from the objectives pursued by the regulation in connection with the establishment of the internal market and the area of freedom, security and justice. That objective of uniformity is also reflected in the fact that the chosen instrument is a regulation, and not a directive or a recommendation, for example.

39. It follows that the specifications relating to machine readable passports set out in Part 1 of ICAO Document 9303 constitute a binding part of Regulation No 2252/2004 and, therefore, rules which are compulsory under EU law even though they do not themselves form part of it. Such a situation, in which EU law gives binding legal effect to the provisions of acts of international law or international or European standards, is not unique. (32)

40. Consequently, I propose that the Court’s answer to the referring court’s first question should be that, in accordance with the Annex to Regulation No 2252/2004, the machine readable personal data page of passports issued by the Member States must comply with the specifications applicable under Part 1 of ICAO Document 9303.

C – The right of a Member State to require that the birth name be entered in Field 06 (primary identifier) or Field 07 (secondary identifier) of the passport

41. By its second and third questions, which should be dealt with together, the referring court wishes to ascertain whether the applicant’s birth name may be entered in Field 06 of the personal data page of the passport as the primary identifier (question 2), or in Field 07 as the secondary identifier (question 3), in circumstances where the birth name is not part of the legal name of the person concerned under the applicable national law.

42. Part 1 of ICAO Document 9303 establishes a standardised framework for the elements to be included in a passport and the form in which they should appear.

43. The name of the person concerned is entered in Fields 06 and 07. The contents of Field 06 (primary identifier) (33) and Field 07 (secondary identifier) (34) are described in that document.

44. I shall present my case in this regard by reference to a practical example: in the case of a person named ‘Anna Maria Eriksson’, Field 06 would thus contain the surname (‘Eriksson’) and Field 07 the forenames (‘Anna Maria’). It should be noted, however, that ICAO Document 9303 contains other examples reflecting the multitude of names which may exist in the 191 ICAO States and which must be entered in passports in accordance with the instructions given in that document. (35)

45. Part 1 of ICAO Document 9303 contains a table (36) listing the data elements for the ‘visual inspection zone’ of the data page of a machine readable passport. That table contains provisions relating to the name, set out under headings ‘06/07/II’, ‘06/II’ and ‘07/II’. The name will, where possible, be divided into two parts, the first part representing that portion of the name which the issuing State defines as the primary identifier (‘e.g. surname, maiden name plus married name, family name’), the second representing the other elements of the name which the issuing State regards as being the secondary identifier (‘e.g. given names, initials’). The primary identifier is made up of the dominant elements of the name. That part of the name must appear in Field 06. The secondary identifier is made up of the other elements of the name and must appear in Field 07. (37)

46. In my view, Regulation No 2252/2004 and Part 1 of ICAO Document 9303 do seek to create a degree of uniformity in the way in which names appear, the rules governing which vary extensively from one country to another. After all, the essential function of a passport is to allow the authorities of other countries to identify a foreign national, even though it is often used as an identification document at national level. Such identification may be essential for a number of reasons, not least in the event of naturalisation, immigration or applications for asylum. (38)

47. A Member State may provide that the birth name remains legally part of the name, even after another name has been acquired following marriage or a change of name. According to the referring court, however, that is not the case in the Federal Republic of Germany. Consequently, a Member State which has not adopted provisions to that effect cannot insert the birth name in Field 06, alongside the surname, or, in my opinion, in Field 07 either. After all, although the State has some discretion when it comes to splitting the elements of the legal name between primary identifier and secondary identifiers, it is not entitled to provide for the inclusion in the primary identifier or the secondary identifiers of elements which are not part of the legal name under its own domestic law. This applies, where appropriate, both to the birth name and to the abbreviation ‘GEB.’, which, in accordance with the rules of German law, are currently entered in the field reserved for the primary identifier.

48. That interpretation is borne out by the provisions relating to the inclusion of academic titles and other comparable particulars provided for in Part 1 of ICAO Document 9303. The only exception permitted is where ‘a State considers a prefix or suffix to be legally part of the name’ (39) (my emphasis).

49. It should be added that Regulation No 2252/2004 does not prevent a Member State from allowing the concept of ‘legal name’ to be construed in different ways, for example by drawing a distinction between the meaning of ‘name’ under civil law and its meaning under administrative law. This might increase its margin of discretion in relation to the choice of primary identifier. This does not appear to be the case with the Federal Republic of Germany, however.

50. Thus, as regards Field 06, the question of the margin of discretion available to the Member States when it comes to determining the primary identifier arises in the case of a surname which is made up of a number of words and which, as such, does not fit into the space provided for that field in the passport.

51. Furthermore, the inclusion of a married woman’s maiden name must also be mentioned in this context, in cases where the national legislation allows the maiden name to be retained and supplemented by the husband’s name, thus forming a composite name, or provides that, from a legal point of view, a married woman’s name consists of her maiden name and her married name. However, that approach cannot justify the inclusion of an element which is not legally part of the name.

52. As regards Field 07, this, in my opinion, is also reserved for elements forming part of the legal name, in particular forenames or, in the case of very long names, the initials representing them, as is expressly provided for in Part 1 of ICAO Document 9303.

53. I would add that a restrictive approach to the elements capable of being included in Fields 06 and 07 is also justified by the fact that the content of those two fields must be reproduced, subject to transcription in accordance with the standardised rules laid down in the document itself, in the machine readable zone of the lower portion of the passport page. It seems to me that the German legislation prescribes content for Fields 06 and 07 which is different from that for the machine readable zone, and does so in a way which does not satisfy the requirements of Part 1 of ICAO Document 9303. (40)

Interim conclusion

54. In the light of those considerations, I therefore propose that the second and third questions be answered to the effect that the Annex to Regulation No 2252/2004, read in conjunction with the provisions of Part 1 of ICAO Document 9303, Section IV, point 8.6, is to be interpreted as meaning that, where the law of a Member State provides that a person’s name comprises his forenames and his surname, that Member State is not authorised to provide that his birth name must be entered, either as a primary identifier in Field 06 or as a secondary identifier in Field 07, on the machine readable personal data page of the passport.

55. That being the case, I note that the fourth question was raised by the referring court only in the event that the second or third question is answered in the affirmative. Since that is not the case, there is no need to answer that question.

56. Similarly, the fifth question was raised by the referring court only in the event that the fourth question is answered in the negative. Since I am proposing that the fourth question should not be answered, there is no need to answer the fifth question either.

D – The right of a Member State to require that the birth name be entered in Field 13 of the passport

57. By its sixth question, the referring court wishes to ascertain whether, where the law of a Member State provides that a person’s name comprises his forename and his surname, the applicant’s birth name may be entered in Field 13 of the personal data page of the passport as an ‘optional personal data element’. (41)

58. The Commission rightly points out that that question must be understood as meaning that the referring court seeks an answer only if the birth name is not part of the full name of the person concerned and cannot therefore be entered in Field 07 as a ‘secondary identifier’. (42)

59. It follows from Part 1 of ICAO Document 9303 that the content of Field 13 is left largely to the discretion of the issuing State, (43) subject to recitals 8 and 9 in the preamble to Regulation No 2252/2004, which limit the information which may be included in the passport. The examples cited by Part 1 of ICAO Document 9303 consist largely of data elements the inclusion of which is of overriding general interest for the purposes of identifying the individual. (44)

60. Like the Commission, I am of the opinion that a birth name which is not part of a person’s full name, may, if there is an overriding general interest, appear as an optional personal data element in Field 13 of the personal data page of the passport, it being important to note that the aforementioned field must be identified by a caption in a number of languages.

61. As I have already explained, given the ways in which German nationals are able to change their name and the fact that there is no comprehensive system for identifying individuals, such an overriding general interest might lie in the ability, when consulting databases (such as credit status reports or criminal records), to use the birth name as a search term because it is relatively stable. (45)

62. However, taking into account the second sentence of recital 8 in the preamble to Regulation No 2252/2004 in conjunction with the interest in the passport’s being understandable throughout the world, any inclusion of the birth name in Field 13 would have to satisfy the formal requirements relating to captions and multilingualism laid down in Part 1 of ICAO Document 9303. That document requires fields intended for mandatory data elements in the visual inspection zone to be identified by a caption in French, English or Spanish. (46)

63. Also, as I indicated in point 26 of this Opinion, the inclusion of the birth name in Field 13 is permissible provided that it is justified under Articles 7 and 8 of the Charter. (47) Nevertheless, in this case, the field heading must explain in French, English or Spanish that that field contains the holder’s birth name. The explanation may not appear in the field itself, as this would be potentially confusing.

64. Consequently, I propose that the answer to the sixth question should be that, where the birth name may not be entered in Fields 06 or 07 of the passport, the Member State is none the less entitled to provide that the birth name must be entered as an optional personal data element in Field 13 of the machine readable personal data page of the passport, provided that there is an overriding general interest in doing so and the reference to that entry is made explicit by a caption in French, English or Spanish in the heading to Field 13.

65. For the sake of completeness, it is important, finally, to point out that, in addition to the page intended for personal data, there is another place where such information could be entered, if this is justified. On the back of the personal data page or on an adjacent page is Zone VI, incorporating Field 20, intended for ‘additional optional data elements’, which provides a suitable location for the inclusion, if necessary, of the birth name together with a caption for that element in a number of languages. The birth name would then be treated as an ‘additional optional data element’. (48) No question has been referred in this regard in the present case, however.

V – Conclusion

66. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Baden-Württemberg Verwaltungsgerichtshof (Germany) as follows:

(1): Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, and its annex, must be interpreted as meaning that the machine readable personal data page of passports issued by Member states must comply with the specifications applicable under Part 1 (Machine Readable Passports) of Document 9303 of the International Civil Aviation Organisation (ICAO).

(2): The Annex to Regulation No 2252/2004, read in conjunction with the provisions of Part 1 (Machine Readable Passports) of ICAO Document 9303, Section IV, point 8.6, must be interpreted as meaning that:

–: where the law of a Member State provides that a person’s name comprises his forenames and his surname, that Member State is not authorised to provide in addition that his birth name must be entered, either as a primary identifier in Field 06 or as a secondary identifier in Field 07, on the machine readable personal data page of the passport;

–: where the birth name may not be entered in Fields 06 or 07 of the passport, the Member State is none the less entitled to provide that the birth name must be entered as an optional personal data element in Field 13 of the machine readable personal data page of the passport, provided that there is an overriding general interest in doing so and the reference to that entry is made explicit by a caption in French, English or Spanish in the heading to Field 13.

2 –: Original language: French.

3 –: OJ 2004 L 385, p. 1

4 –: OJ 2009 L 142, p. 1, and corrigendum OJ 2009 L 188, p. 127.

5 –: This is Volume 1 (Passports with Machine Readable Data Stored in Optical Character Recognition Format), sixth edition (2006), of the aforementioned Part 1 of ICAO Document 9303. That document can be found on the ICAO’s website (http://www.icao.int) and is available, inter alia, so far as the official languages of the European Union are concerned, in Spanish, English and French.

6 –: Recital 2.

7 –: First paragraph of the introduction to the annex.

8 –: First paragraph of point 2 of the annex and recital 3 in the preamble to Regulation No 2252/2004. See also the final subparagraph of point 5 of the annex: ‘The layout of the biographical data page shall follow the specifications given in [P]art 1 of ICAO Document 9303 ...’

9 –: On its website (www.icao.int), the ICAO is defined as a ‘UN specialised agency, created in 1944 upon the signing of the Convention on International Civil Aviation (Chicago Convention). ICAO works with the Convention’s 191 Signatory States and global industry and aviation organisations to develop international Standards and Recommended Practices (SARPs) which are then used by States when they develop their legally-binding national civil aviation regulations’.

10 –: Part 1 of ICAO Document 9303, Section IV, points 5.2, 6.1, 6.2, and appendices 1 and 2.

11 –: The back of the data page or an adjacent page in such a passport constitutes Zone VI, which may include optional data elements.

12 –: Part 1 of ICAO Document 9303, Section IV, point 8.6.

13 –: Paragraph 1355(1) of the BGB.

14 –: Gesetz über die Änderung von Familiennamen und Vornamen (Law on changes of surname and forename).

15 –: Paragraph 1355(4) of the BGB. The birth name (Geburtsname), however, may change only in the event of adoption.

16 –: Opinion of Advocate General Jacobs in Garcia Avello, C‑148/02, EU:C:2003:311.

17 –: BGB1. 2007 I, p. 122.

18 –: Opinion of Advocate General Sharpston in Sayn-Wittgenstein, C‑208/09, EU:C:2010:608, point 21.

19 –: BGB1. 1986 I, p. 573, as last amended by the Law of 30 July 2009 on the prosecution of the preparation of serious acts of violence that endanger the State (BGB1. 2009 I, p. 2437) (‘the Law on passports’).

20 –: BGB1. 2007 I, p. 2386, as last amended by the Regulation of 25 October 2010 amending the Regulation implementing the Law on Passports, the Regulation on Passport Data Capture and the Regulation on Transmission and other provisions (BGB1. 2010 I, p. 1440).

21 –: At the request of the referring court, the applicant’s name was anonymised by the Court Registry during the written procedure by using the letter ‘U’. Nevertheless, for the purposes of this Opinion, specific abbreviations will be used in order better to convey the distinction between the current surname (F), the forenames (S P) and the birth name (E) of the applicant in the main proceedings.

22 –: See, inter alia, the judgment in Sayn-Wittgenstein C‑208/09, EU:C:2010:806, paragraph 52; ECtHR, judgments in Burghartz v. Switzerland, 22 February 1994, § 24, Series A 280-B, and Stjerna v. Finland, 25 November 1994, § 37, Series A No 299-B.

23 –: As regards justification, see the judgment in Schwarz, C‑291/12, EU:C:2013:670, paragraph 31 et seq.

24 –: . Judgment in Garcia Avello, C‑148/02, EU:C:2003:539.

25 –: . Judgment in Grunkin and Paul, C‑353/06, EU:C:2008:559.

26 –: . Judgment in Sayn-Wittgenstein, C‑208/09, EU:C:2010:806.

27 –: . Judgment in Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291.

28 –: . Council Document No 15356/06 ‘Draft Resolution of the Representatives of the Governments of the Member States meeting within the Council on common minimum security standards for Member States’ national identity cards’ (available in English only on the Council’s website), adopted at the 2768th meeting of the Justice and Home Affairs Council on 4 December 2006.

29 –: . For an overview of travel documents permitted within the European Union (in particular passports and identity cards), see the following website: http://prado.consilium.europa.eu/ .

30 –: The Resolution of the Representatives of the Governments of the Member States of the European Communities, meeting within the Council of 23 June 1981, on the introduction of a passport of uniform design in the Member States of the European Communities (OJ 1981 C 241 p. 1), itself defined the surname and forename as elements of the uniform passport, as did the supplementary resolutions of 30 June 1982 (OJ 1982 C 179, p. 1), 14 July 1986 (OJ 1986 C 185, p. 1), 10 July 1995 (OJ 1995 C 200, p. 1) and 17 October 2000 (OJ 2000 C 310, p. 1).

31 –: See also recital 3 in the preamble to Regulation No 2252/2004.

32 –: See my View in McB, C‑400/10 PPU, EU:C:2010:544, point 40, concerning the relationship between a regulation and an international convention which, in accordance with EU law, is applicable between the Member States even though it is not part of EU law. As regards the maritime field, see, for example, Directive 2001/25/EC of the European Parliament and the Council of 4 April 2001 on the minimum level of training of seafarers (OJ 2001 L 136, p. 17), concerning the STCW Convention and the STCW Code, which is incorporated only by reference (see recitals 9, 11, 21 and 24 in the preamble to that directive). See also Rosas, A., ‘The Status in EU Law of International Agreements Concluded by EU Member States’, Fordham International Law Journal, 5(34), 2011, pp. 1304-1345, in particular p. 1327.

33 –: As regards Field 06: ‘Predominant component(s) of the name of the holder as described above. In cases where the predominant component(s) of the name of the holder (e.g. where this consists of composite names) cannot be shown in full or in the same order, owing to space limitations of Field(s) 06 and/or 07 or national practice, the most important component(s) (as determined by the State or organisation) of the primary identifier shall be inserted’ (my emphasis). See Part 1 of ICAO Document 9303, Section IV, point 8.6.

34 –: As regards Field 07: ‘Secondary component(s) of the name of the holder as described above. The most important component(s) (as determined by the State or organisation) of the secondary identifier of the holder shall be inserted in full, up to the maximum dimensions of the field frame. Other components, where necessary, may be represented by initials. ...’ (my emphasis). See Part 1 of ICAO Document 9303, Section IV, point 8.6.

35 –: Part 1 of ICAO Document 9303, Section IV, points 12.10.2 to 12.10.4 and Appendix 5. In addition to names the structure of which is easily understandable from a European point of view (‘Anna Maria Eriksson’ shown in the passport as ‘ERIKSSON, ANNA MARIA’), points 12.10.2 to 12.10.4 also give examples which are less common from a European perspective, such as a name without a secondary identifier (‘Arkfreith’, shown in the passport as ‘ARKFREITH’), a name with a very long secondary identifier (‘Nilavadhanananda Chayapa Dejthamrong Krasuang’, shown in the passport as ‘NILAVADHANANANDA, CHAYAPA DEJTHAMRONG KRASUANG’), or a name with a very long primary identifier (‘Dingo Potoroo Bennelong Wooloomooloo Warrandyte Warnambool’, shown in the passport as ‘BENNELONG WOOLOOMOOLOO WARRANDYTE WARNAMBOOL, DINGO POTOROO’). As regards the last two examples, I take the view that, if an abbreviation taken from the original language were ever to appear in the middle of those names, there would be a risk of its being misunderstood in certain situations.

36 –: Part 1 of ICAO Document 9303, Section IV, point 8.6.

37 –: Nevertheless, a State may, if it wishes, use Fields 06 and 07 as a single field.

38 –: A lack of precision in the means of identification may lead to legal uncertainty, which in turn may affect the rights of individuals. For example, in Finland, naturalisation is impossible if there is any uncertainty about the applicant’s identity. This will be the case if there are contradictions between the relevant documents, such as the birth certificate and the passport or other travel documents presented, unless there are documents which explain that inconsistency or the problem is due to differences in spelling or difficulties connected the transcription of the original language.

39 –: Part 1 of ICAO Document 9303, Section IV, point 11.3: ‘It is recommended that prefixes and suffixes including titles, professional and academic qualifications, honours, awards, and hereditary status, not be included in the [visual inspection zone]. However, if an issuing State or organisation considers a prefix or suffix to be legally part of the name, the prefix or suffix can appear in the [visual inspection zone. ...’

40 –: Paragraph 4(1) and (2) of the Law on passports.

41 –: The content of Field 13 is defined as follows: ‘Optional personal data elements, e.g. personal identification number or fingerprint, at the discretion of the issuing State or organisation ...’. See Part 1 of ICAO Document 9303, Section IV, point 8.6.

42 –: The German Government considers this question to be hypothetical, on the ground that the national law does not require the birth name to be entered in Field 13 of the personal data page. However, as I said earlier, the answer to this question may be of use to the referring court for the purposes of providing an interpretation of the national legislation consistent with EU law.

43 –: I gave an example of the exercise of such discretion in a Member State in my Opinion in Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2010:784, footnote 52.

44 –: Judgments in Schwarz, EU:C:2013:670, and Runevič-Vardyn and Wardyn, EU:C:2011:291, paragraph 91.

45 –: Point 14 of this Opinion.

46 –: Part 1 of ICAO Document 9303, Section IV, point 8.4.

47 –: Judgment in Schwarz, EU:C:2013:670, paragraph 31 et seq.

48 –: Part 1 of ICAO Document 9303, Section IV, point 5.2: ‘Back of [machine readable passport] data page, or an adjacent page: Zone VI — Optional data elements’ and Appendix 1 to Section IV, Diagram 1.