U

Court of Justice  (4^th Chamber)
2^nd October 2014

Request for a preliminary ruling  under Article 267 TFEU  from the Verwaltungsgerichtshof Baden-Württemberg (Germany), made by decision of 6^th February 2013, received at the Court on 28^th February 2013

Area of freedom, security and justice — Regulation (EC) N^o 2252/2004  — Document 9303 of the International Civil Aviation Organization (ICAO), Part 1  — Minimum security standards for passports and travel documents issued by the Member States — Machine readable passport — Inclusion of the birth name on the personal data page of the passport — Name to appear in a form not liable to give rise to confusion

Before (the judges sitting on the bench)

• Lars Bay Larsen, President of the Chamber
• Marek Safjan
• Jiří Malenovský (the Judge-Rapporteur)
• Alexandra (Sacha) Prechal
• Küllike Jürimäe

Other members present

• Niilo Jääskinen, Advocate General 
• Miroslav Aleksejev, Administrator (the Registrar )

The parties to the case

• Mr U

— v —

• Stadt Karlsruhe

Summary of the facts

The Court (Fourth Chamber),

having regard to the written procedure and further to the hearing on 15^th January 2014,

after considering the observations submitted on behalf of:

• Mr U, by R. Faller, Rechtsanwalt,
• the German Government, by T. Henze and A. Wiedmann, acting as Agents,
• the European Commission, by G. Wils and W. Bogensberger, acting as Agents,

after hearing the Opinion of the Advocate General  at the sitting on 30^th April 2014,

gives the following —

Judgment

The Court (Fourth Chamber) —

1.  This request for a preliminary ruling concerns the interpretation of Council Regulation (EC) N^o 2252/2004  of 13^th December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) N^o 444/2009  of the European Parliament and of the Council of 6^th May 2009 (OJ 2009 L 142, p. 1, and corrigendum OJ 2009 L 188, p. 127) (“Regulation N^o 2252/2004”).

2.  The request has been made in proceedings between Mr U and the Stadt Karlsruhe (City of Karlsruhe) concerning the latter’s refusal to alter the form in which Mr U’s birth name appears in his German passport.

Legal context

EU legislation

3.  Recitals 2 to 4 in the preamble to Regulation N^o 2252/2004  state:

1. “(2) Minimum security standards for passports were introduced by a Resolution of the representatives of the Governments of the Member States, meeting within the Council, on 17^th October 2000.  […]  It is now appropriate to upgrade this Resolution by a Community measure in order to achieve enhanced harmonised security standards for passports and travel documents to protect against falsification.  At the same time biometric identifiers should be integrated in the passport or travel document in order to establish a reliable link between the genuine holder and the document.
2. “(3) The harmonisation of security features and the integration of biometric identifiers is an important step towards the use of new elements in the perspective of future developments at European level, which render the travel document more secure and establish a more reliable link between the holder and the passport and the travel document as an important contribution to ensuring that it is protected against fraudulent use.  The specifications of the International Civil Aviation Organization (ICAO), and in particular those set out in Document 9303 on machine readable travel documents , should be taken into account.
3. “(4) This Regulation is limited to the harmonisation of the security features including biometric identifiers for the passports and travel documents of the Member States.  […]”

4.  Under Article 1(1), first subparagraph, of that regulation:

“Passports and travel documents issued by Member States shall comply with the minimum security standards set out in the Annex.”

5.  The Annex to that regulation, entitled “Minimum security standards of passports and travel documents issued by the Member States” contains, in point 2 thereof, entitled “Biographical data page”, the following first subparagraph:

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

ICAO Document 9303, Part 1

6.  The fifth paragraph of the introduction to ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], states as follows:

“[…]  ICAO develops […] international standards […] for implementation by Contracting States.  In the development of such standards, it is a fundamental precept that if public authorities are to facilitate inspection formalities for the vast majority of air travellers, those authorities must have a satisfactory level of confidence in the reliability of travel documents and in the effectiveness of inspection procedures.  The production of standardised specifications for travel documents and the data contained therein is aimed at building that confidence.”

7.  ICAO Document 9303, Part 1, Section IV, entitled “Technical specifications for machine readable passports”, contains a point 5.2 providing as follows:

“To accommodate the various requirements of States’ laws and practices and to achieve the maximum standardisation within those divergent requirements, the [machine readable passport (MRP)] data page is divided into seven zones as follows:

“Front of MRP data page

“Zone I Mandatory header
“Zone II Mandatory and optional personal data elements
“Zone III Mandatory and optional document data elements
“Zone IV Mandatory holder’s signature or usual mark (original or reproduction)
“Zone V Mandatory identification feature
“Zone VII Mandatory machine readable zone (MRZ).

“Back of MRP data page, or an adjacent page

“Zone VI Optional data elements.”

8.  Point 8.4 of Section IV is worded as follows:

“Fields.  Captions shall be used to identify all fields for mandatory data elements in the [Visual Inspection Zone (Zones I to VI)] except as specified in the directory below and may be in the official language of the issuing State or working language of the issuing organization.  If the official language of the issuing State or working language of the issuing organization used for captions is other than English, French or Spanish, one of these languages shall also be used, and the translation of the caption should be presented in italics.”

9.  As regards the content of Fields 06 and 07 of Zone II of the MRP data page, point 8.6 of that section provides as follows:

“The full name of the holder, as identified by the issuing State or organization.  The name shall be divided where possible by the issuing State or organization into two parts, the first representing that portion of the name that the issuing State or organization defines as the ‘primary identifier’ for the holder (e.g. surname, maiden name plus married name, family name) and the second representing all remaining components (e.g. given names, initials) of the holder’s name, which the issuing State or organization considers as collectively representing a ‘secondary identifier’.  The two parts, i.e. primary and secondary identifiers, once integrated, constitute the name of the passport holder.

“Where the issuing State or organization determines that the holder’s name cannot be divided into the required two parts, as defined above, the full name of the holder shall be defined as the primary identifier.”

10.  In respect, specifically, of Field 06, intended to contain the primary identifier, ICAO Document 9303, Part 1, Section IV, point 8.6 states as follows:

“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 organization) of the primary identifier shall be inserted.”

11.  So far as concerns Field 07, intended to contain the secondary identifier, ICAO Document 9303, Part 1, Section IV, point 8.6, provides as follows:

“Secondary component(s) of the name of the holder as described above.  The most important component(s) (as determined by the State or organization) 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.  Where the holder’s name has only predominant component(s), this data field shall be left blank.  A State may optionally utilise the whole zone comprising Fields 06 and 07 as a single field.  In such a case, the primary identifier shall be placed first, followed by a comma and a space, followed by the secondary identifier.”

12.  Regarding Field 13 of Zone II of the data page, intended to contain the “Optional personal data elements”, ICAO Document 9303, Part 1, Section IV, point 8.6 provides the following explanation:

“Optional personal data elements e.g. personal identification number or fingerprint, at the discretion of the issuing State or organization.  […]”

German legislation

13.  In its request for a preliminary ruling, the referring court indicates that, according to the national law on civil status, an individual’s name is composed only of his forenames and surname.  It states that, in German law, an individual’s surname is, in general, his birth name determined under Sections 1616  or 1617  of the Civil Code  (Bürgerliches Gesetzbuch ) but that, in particular in the event of marriage, the birth name may cease to be used as the surname.

14.  So far as concerns the issuing of passports, the first and second sentences of Section 4(1)  of the Law on passports  (Passgesetz ) of 19^th April 1986 (BGBl. 1986 I, p. 537), as most recently amended by the Law of 30^th July 2009 (BGBl. 2009 I, p. 2437), provide as follows:

“Passports must be issued according to a uniform template; they shall contain a serial number.  The passport shall contain, in addition to a photograph of the passport holder, to his/her signature, to the name of the issuing authority, to the date of issue and the expiry date, the following information only about the passport holder:

1. “1. Surname and birth name,
2. “2. Forenames,
3. “[…]”

15.  Footnote 6 to Annex 11  to the Regulation implementing the Law on passports (Passverordnung ) is worded as follows:

“Where 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.’.”

The dispute in the main proceedings and the questions referred for a preliminary ruling

16.  The surname of the applicant in the main proceedings is U and his forenames are S P.  His birth name, which is not part of his surname, is E.  It is also apparent from the documents in the file that the applicant has acquired the title of “Doktor” which, according to German law, is considered to be a component of the name.

17.  In the “Name/Surname/Nom” field in his passport, the following is written, over two lines:

“DR [U]
“GEB. [E]”

18.  The applicant in the main proceedings considers that the form 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, which is not part of his name as defined by the national law on civil status, preceded by the abbreviation “GEB.”, included to replace the adjective “geboren” (born), has meant that that, in business dealings with private persons and when having visas issued, he has been referred to, for example, as “Mr GEB [E]”, “Mr [E U]”, “Dr [U] GEB [E]” or “[S E] Dr U”.

19.  For that reason, the applicant in the main proceedings requested the Stadt Karlsruhe to amend the details in his passport, to make it clear, in particular for non-Germans, that his name is “Dr U”.  The Stadt Karlsruhe refused this request.

20.  The applicant in the main proceedings brought a complaint before the Regierungspräsidium Karlsruhe (Karlsruhe Regional Administration), then, that complaint having been rejected, an action for annulment before the Verwaltungsgericht Karlsruhe (Karlsruhe Administrative Court), which was in turn dismissed.  That applicant then brought an action before the referring court.

21.  In those circumstances, the Verwaltungsgerichtshof Baden-Württemberg (Baden-Württemberg Higher Administrative Court) decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling:

1. “(1) In accordance with the Annex to [Regulation N^o 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. “(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) N^o 2252/2004 , in conjunction with Point 8.6 of Section IV of Part 1 [of ICAO Document 9303]  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], to enter the name at birth as a primary identifier in Field 6 of the machine readable personal data page of the passport?
3. “(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) N^o 2252/2004 , in conjunction with Point 8.6 of Section IV of Part 1 [of ICAO Document 9303]  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], to enter the name at birth as a secondary identifier in Field 7 of the machine readable personal data page of the passport?
4. “(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 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 at Rome on 4^th November 1950], 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. “(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 European Convention on Human Rights and Fundamental Freedoms , 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 6 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. “(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 States entitled, in accordance with the Annex to Regulation (EC) N^o 2252/2004 , in conjunction with point 8.6 of Section IV of Part 1 [of ICAO Document 9303]  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], 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?”

Consideration of the questions referred

Question 1

22.  By its first question, the referring court asks, in essence, whether the Annex to Regulation N^o 2252/2004  must be interpreted as requiring the machine readable personal data page of passports issued by the Member States to satisfy all the compulsory specifications provided for by Part 1  of ICAO Document 9303 .

23.  In this connection, it must be observed at the outset that, according to Article 1 of Regulation N^o 2252/2004 , passports issued by Member States must comply with the minimum security standards described in the Annex to that regulation.  It is apparent from point 2 of that Annex, entitled “Biographical data page”, first subparagraph, that the machine readable biographical data page of passports issued by Member States must comply with the specifications for machine-readable passports laid down by Part 1  of ICAO Document 9303 .

24.  Consequently, it follows from the Annex to Regulation N^o 2252/2004  that the machine readable biographical data page of passports issued by Member States must satisfy all of the compulsory specifications provided for by Part 1  of ICAO Document 9303 .

25.  It is also important to note that that obligation is consistent with the objective pursued by Regulation N^o 2252/2004  of rendering travel documents within the European Union more secure.

26.  Accordingly, the answer to the Question 1 is that the Annex to Regulation N^o 2252/2004  must be interpreted as requiring the machine readable personal data page of passports issued by the Member States to satisfy all the compulsory specifications provided for by Part 1  of ICAO Document 9303 .

Questions 2 and 3

27.  By its second and third questions, which may be examined together, the referring court asks, in essence, whether the Annex to Regulation N^o 2252/2004 , read in conjunction with Part 1  of ICAO Document 9303 , must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as precluding that State from being entitled nevertheless to enter the birth name either as a primary identifier in Field 06 of the machine readable personal data page of the passport or as a secondary identifier in Field 07 of that page or in a single field composed of Fields 06 and 07.

28.  It must be observed at the outset that, according to ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 8.6, Fields 06 and 07 of the machine readable personal data page are intended to contain the elements identified by the issuing State as constituting the “full name” of the passport holder.

29.  It is therefore necessary to establish, first, whether in a legal context such as that set out by the referring court in its questions, the birth name may be entered in Fields 06 and/or 07.

30.  In that regard, it is apparent from ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 5.2, that the specifications relating to the content of the machine readable personal data page of the passport were designed so as to accommodate the various requirements of the laws and practices of the issuing States.  It follows that, subject to the requirements connected with the standardised formatting of that page, the issuing States have some leeway in the choice of the elements to be entered in the various data fields of that page.

31.  Given that leeway granted to the States and since ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 8.6, refers to “the full name …, as identified by the issuing State”, without explaining that term further, the term in question must be interpreted as leaving those States some discretion in the choice of elements constituting the “full name”.  Thus, it must be held that that document does not preclude, in a legal context such as that set out by the referring court in its questions, a State from being entitled to include, in Fields 06 and/or 07 of the machine readable personal data page of the passport, elements other than the passport holder’s surname and forenames, in particular the holder’s birth name.

32.  Such a conclusion is borne out by the objective pursued by Regulation N^o 2252/2004 , as evoked in recitals 2 and 3 in the preamble thereto, of establishing a reliable link between the holder and the passport.  Given that the birth name constitutes an element enabling persons with identical surnames to be distinguished from one another, the inclusion of that information in a passport is likely to establish a firmer link between that document and its holder.

33.  Having regard both to the wording of ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 8.6, and to the objective pursued by Regulation N^o 2252/2004 , it must therefore be held that the Annex to Regulation N^o 2252/2004 , read in conjunction with ICAO Document 9303, Part 1 , must be interpreted as not precluding, in a legal context such as that set out by the referring court in its questions, a Member State from being entitled to enter the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport.

34.  So far as concerns, secondly, in which specifically of Fields 06 or 07 the birth name of the passport holder may be entered, it follows from ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 8.6, that it is for the issuing States to identify from among the elements constituting the full name of the passport holder, those which are the primary components and which, on that ground, must be entered in Field 06 and those which are the secondary components and which must be entered in Field 07 of the machine readable personal data page of the passport.  Point 8.6 furthermore provides that the issuing States may also take the view that the various components forming the “full name” cannot be divided, but that they must be used as a primary identifier, or that Fields 06 and 07 must be used as a single field.

35.  Accordingly, where a Member State decides to include in a machine readable passport the holder’s birth name, it may enter it either, as a primary identifier, in Field 06 of the machine readable personal data page of the passport, or as a secondary identifier in Field 07 of that page, or in a single field composed of both those fields.

36.  Having regard to the foregoing, the answer to Questions 2 and 3 is that the Annex to Regulation N^o 2252/2004 , read in conjunction with Part 1  of ICAO Document 9303 , must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as not precluding that State from being entitled nevertheless to enter the birth name either as a primary identifier in Field 06 of the machine readable personal data page of the passport or as a secondary identifier in Field 07 of that page or in a single field composed of Fields 06 and 07.

Question 6

37.  By Question 6, which it is appropriate to examine next, the referring court asks, in essence, whether the Annex to Regulation N^o 2252/2004 , read in conjunction with ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 8.6, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as precluding that Member State from being entitled to enter the birth name as an optional item of personal data in Field 13 of the machine readable personal data page of the passport.

38.  In this connection, according to that point 8.6, Field 13 of that page is designed to contain the optional personal data elements.  It follows that that field may contain only data elements in respect of which it has not already been provided that they must, on account of their nature, be entered in another field and therefore that they are mandatory in character.

39.  Since, also under point 8.6, the issuing States must enter, in Fields 06 and 07 of that page, the data elements constituting the “full name” of the holders of the passports they issue, and thus are obliged to enter, in their entirety, all of the elements relating to the name there, it must be stated that there is no scope for Field 13 to contain any of those data elements.

40.  That conclusion is confirmed, first, by the fact that the illustrations stated in the aforementioned point 8.6 with respect to Field 13 of that page, namely, a personal identification number and the fingerprints of the person concerned, concern only data of a completely different type from that relating to the name of the passport holder.

41.  Secondly, it is apparent from, in particular, the fifth paragraph of the introduction to Part 1 of ICAO Document 9303  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], that the objective of the specifications laid down in that document is to ensure, by means of sufficiently standardised formatting of the relevant data, a satisfactory level of confidence in the reliability of travel documents, so that inspection procedures are thereby facilitated.  Were the issuing States entitled to enter elements relating to the name in fields other than those expressly provided for that purpose, this would lead to a risk that certain public authorities would be misled in their identification of the passport holder, which would run counter to that objective.

42.  Having regard to the foregoing, the answer to Question 6 is that the Annex to Regulation N^o 2252/2004 , read in conjunction with ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 8.6, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as precluding that State from being entitled to enter the birth name as an optional item of personal data in Field 13 of the machine readable personal data page of the passport.

Question 4

43.  By Question 4, the referring court asks, in essence, whether the Annex to Regulation N^o 2252/2004 , read in conjunction with ICAO Document 9303, Part 1 , must be interpreted, in the light of Article 7  of the Charter, as meaning that, where a Member State whose law provides that a person’s name comprises his forenames and surname chooses nevertheless to include the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport, that Member State is required to state in the caption of those fields that the birth name is entered there.

44.  In so far as the objective recalled in paragraph 41 above entails that the information in the various fields of the machine readable personal data page of a passport must be easily and effectively verifiable by the authorities of those States, the form in which the various components of the name of the holder appear must be free of any ambiguity and, therefore, of any risk of confusion.

45.  Consequently, where a Member State, in a legal context such as that set out by the referring court in its questions, decides to insert the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport, it is required to state clearly in the captions of those fields that the birth name is entered there.

46.  Furthermore, having regard to ICAO Document 9303, Part 1  [6^th ed., 2006 — now superseded by the 7^th ed., 2015 ], Section IV, point 8.4, that caption must be drafted in the official language of that State, if necessary accompanied by a translation, in italics, into one of the languages designated in that provision.

47.  Therefore, those requirements are not satisfied where, in a passport, the birth name of the holder entered there is indicated by means of an abbreviation which is, moreover, not translated into one of the languages required.

48.  Such an interpretation is also supported by the requirements linked to the right of a person to protection of his identity and private life, of which respect for his name is a constituent element, as affirmed in Article 7  of the Charter (see, to that effect, judgment in Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 66).

49.  In that regard, although, with a view to attaining the objectives of Regulation N^o 2252/2004 , a State has the option of adding to the name of the passport holder, as defined in its national law on civil status, other elements, in particular the birth name, the fact remains that the way in which that option is exercised must observe that individual’s right to protection of his private life.  Thus, in order for that right to be observed, the name of the holder must be clearly distinguished from those additional elements, such clarification moreover in no way preventing the objectives of Regulation N^o 2252/2004  from being achieved.

50.  It is not disputed that, where the name of a person appears incorrectly or ambiguously in documents issued by a State in order to prove his identity, this is liable to cause serious inconvenience for that person both in his professional and in his private life in so far as it may give rise to doubts as to his real identity, the authenticity of the passport or the veracity of the information contained in it (see, to that effect, judgments in Grunkin and Paul, C‑353/06, EU:C:2008:559, paragraph 23, and Sayn-Wittgenstein, C‑208/09, EU:C:2010:806, paragraph 69).

51.  Having regard to the foregoing, the answer to Question 4 is that the Annex to Regulation N^o 2252/2004 , read in conjunction with ICAO Document 9303, Part 1 , must be interpreted, in the light of Article 7  of the Charter, as meaning that, where a Member State whose law provides that a person’s name comprises his forenames and surname chooses nevertheless to include the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport, that State is required to state clearly in the caption of those fields that the birth name is entered there.

Question 5

52.  In view of the answer to the fourth question, there is no need to answer the fifth question.

Costs

53.  Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.  Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Ruling of the court

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Footnotes

Language of the case: German.