FEDERAL CONSTITUTIONAL COURT

– 1 BvR 691/03 –

IN THE NAME OF THE PEOPLE

In the proceedings

on the constitutional complaint

the First Chamber of the Second Senate of the Federal Constitutional Court with the participation of Justices

President Papier, Hohmann-Dennhardt, Hoffmann-Riem

unanimously held on 3 November 2005:

1. 1. The orders of the Karlsruhe Higher Regional Court of 21 February 2003 – 11 Wx 101/02 – and of 24 July 2002 – 11 Wx 26/02 – and of the Karlsruhe Regional Court of 26 November 2002 – 11 T 342/02 – violate the fundamental right under Article 6(2) first sentence of the Basic Law of complainants 1 and 2, and the fundamental right under Article 2(1) in conjunction with Article 1(1) of the Basic Law of complainant 3. These orders are reversed and the matter is remitted to the Karlsruhe Higher Regional Court.

2. 2. The Land Baden-Wuerttemberg must reimburse the complainants their necessary expenses.

Reasons:

The complainants claim an interference with the right to choose a first name.

I.

1. Complainants 1 and 2 are the parents, with custody, of complainant 3, a boy born in September 2001. They wished to give their son the first names Anderson Bernd Peter . The registrar at the Registry Office refused to register the name Anderson as a first name in the Register of Births on the grounds that it was a last name.

Upon application by complainants 1 and 2, the Local Court (Amtsgericht – AG) in its Order of 10 January 2002, ordered the registrar to register the requested first names. […]

The authorities of the city involved in the initial proceedings (hereinafter: the Party Involved) appealed this decision, which was rejected by the Regional Court by Order of 20 March 2002. […]

The Party Involved immediately lodged another appeal, whereupon the Higher Regional Court reversed, by Order of 24 July 2002, the Regional Court’s decision and remitted the matter to the Regional Court for re-examination and decision. The Higher Regional Court held that the persons having custody of the child are entitled to choose its first name, and that there are no legal provisions on choosing and bearing first names. According to the Higher Regional Court, the limits on naming arise from the child’s right of personality and from the public interests related to naming, which include the ordering function of the name. It is general opinion, according to the Higher Regional Court, that this function forbids choosing a last name for a first name. […]

The Regional Court thereupon reversed, by Order of 26 November 2002, the original decision of the Local Court and rejected the application seeking to order the registrar to register the desired first names. […]

The further appeal immediately lodged against this – this time by the complainants – was in the end rejected by the Karlsruhe Higher Regional Court by Order of 21 February 2003. […]

2. With the constitutional complaint challenging the orders of the Higher Regional Court and of the Regional Court of 26 November 2002, complainants 1 and 2 claim a violation of their parental right under Art. 6(2) sentence 1 of the Basic Law (Grundgesetz – GG); complainant 3 claims a violation of his right of personality under Art. 2(1) in conjunction with Art. 1(1) GG. […]

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II.

The Chamber admits the constitutional complaint for decision and grants the relief sought in accordance with § 93c(1) sentence 1 in conjunction with § 93a(2) letter b of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

1. The constitutional complaint must be admitted for decision in order to enforce the parental right under Art. 6(2) sentence 1 GG of complainants 1 and 2, and the general right of personality under Art. 2(1) in conjunction with Art. 1(1) GG of complainant 3 (§ 93a(2) letter b BVerfGG). The requirements are met for a decision by the Chamber granting the relief sought (§ 93c BVerfGG). The relevant issues for the constitutional complaint, namely the relationship between law on names and the parental right, as well as the general right of personality of the child (also in regard to the first name), have already been decided by the Federal Constitutional Court (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 24, 119 <143 and 144>; 31, 194 <204>; 55, 171 <182>; 59, 360 <376 and 377>; 61, 358 <371 and 372>; 64, 180 <189>; 72, 122 <137>; 75, 201 <218>; 104, 373 <385 and 386>; 109, 256 <266>; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 2, 258 <259 and 360>).

2. The constitutional complaint is clearly well-founded.

a) The challenged decisions violate the fundamental right under Art. 6(2) sentence 1 GG of complainants 1 and 2.

aa) The right of parents to take care of their child also includes the right to give their child a name (cf. BVerfGE 104, 373 <385>; BVerfGK 2, 258 <259>). The decision concerning which name the child shall bear is to be taken in exercise of the parental responsibility for the child. This encompasses choosing a first name, which solely lends expression to a person’s individuality, designates the individual, and distinguishes them from others (cf. BVerfGE 104, 373 <385>; BVerfGK 2, 258 <259>). It is foremost the task of the parents to freely and jointly choose a name for the child, as it cannot yet give one to itself; the choice of a first name is, as a rule, a free one, as there are no relevant provisions in the law on names (BVerfGK 2, 258 <259>). A limit to the parental right to choose a first name may only be set if its exercise risks impairing the child’s best interests (cf. BVerfGE 104, 373 <385>; cf. also BVerfGE 24, 119 <143 and 144>; BVerfGK 2, 258 <260>). In exercising its watcher function according to Article 6.2 sentence 2 of the Basic Law, the state is not only entitled but indeed obliged to protect the child as a holder of fundamental rights against the irresponsible choice of names on the part of the parents. Article 6.2 of the Basic Law offers no basis for a more extensive interference with the parental right to choose a child’s first name (cf. BVerfGE 104, 373 <385 and 386>; BVerfGK 2, 258 <260>).

bb) The Higher Regional Court and, in following it, the Regional Court have failed to appreciate these requirements.

(1) The Higher Regional Court based its decisions on the fact that in Germany Anderson is used as a last name but not as a first name; registering it as a first name, it stated, would conflict with the ordering function of the name. This view, which is in line with the case-law of the regular courts prevailing until now (cf. e.g. Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ) 29, 256 <259>; 30, 132 <134>; 73, 239 <241>; OLG Frankfurt, Das Standesamt – StAZ 1985, p. 106; OLG Karlsruhe, StAZ 1999, p. 298; OLG Cologne, StAZ 2002, p. 43), is largely based on the public interest but not on the best interest of the child, which is the only factor than can justify a limitation of the parental right to choose a first name (cf. BVerfGE 104, 373 <385>; BVerfGK 2, 258 <260>; following this OLG Hamm, Neue Juristische Wochenschrift Rechtsprechungs-Report – NJW-RR 2005, p. 874; StAZ 2005, p. 75). The challenged decisions thus lack any balancing of the protected parental interest to choose a first name for their child with a potential threat to the child’s best interest.

(2) The explanations by the Higher Regional Court on the ordering function of the name also do not give any indication of a risk to the best interest of the child (complainant 3). According to the decision’s reasons, typical last names used as first names lack the ability to distinctively mark the individual, meaning that there is a risk of confusing them with the real last name; moreover, they could give the impression of a double last name. The courts have not, however, given sufficient consideration to whether these risks are in fact imminent in the case of the complainant 3.

(a) Indeed, the courts have not dealt sufficiently with the fact that the first name Anderson is to be joined to two other first names, Bernd Peter , which can unquestionably be identified as first names. The full name would thus be Anderson Bernd Peter K. The Higher Regional Court’s arguments on this point, to the effect that this consideration is not in accordance with the case-law of the Senate, do not justify its failure to examine the risk that the first name and the last name might be confused in this specific case. Moreover, the earlier decision by the Higher Regional Court that was cited (StAZ 1999, p. 298 <299>) simply refers to the fact that the bearer of a name is free to decide whether or not to use the second first name at all. The Higher Regional Court has not considered the fact that precisely this possibility provides a way to avoid any potential risk of confusion and any detriment to the best interest of the child that may be associated with it.

(b) The courts have also not given sufficient consideration to whether Anderson could actually be recognisable or become recognisable as a first name in Germany, especially in view of increasing internationalisation. According to the statement, dated 12 August 2002, by the University of Leipzig’s Name Consultancy Centre (Namenberatungsstelle ) provided in the initial proceedings, last names ending in -son such as Anderson have lately become established as masculine first names in German-speaking countries. The statement also points out that Anderson has been taken up in the International Handbook of First Names, which is used as a guide by registrars in Germany for registering first names. Furthermore, according to the statement, Anderson was already registered as a second first name in Wiesbaden in 1989. The information provided by the Name Consultancy Centre is not invalidated by the Higher Regional Court’s assertion that the International Handbook of First Names mentions only a foreign English-speaking source for this name. Nor is the statement convincing that the registration of the name Anderson in Wiesbaden “could not be verified”. Apart from the fact that § 12 of the Act on Non-Contentious Matters (Gesetz über die Angelegenheiten der Freiwilligen Gerichtbarkeit – FGG) provides that courts must carry out ex officio investigations, pursuant to the standards of Art. 6(2) GG in particular, proceedings must be suited to provide as reliable a basis as possible for a decision guided by the best interest of the child (cf. BVerfGE 55, 171 <182>).

In light of the above, we cannot discern any risk to the best interest of the child that would justify interfering with the parental right to choose the child’s name.

b) The challenged decisions moreover violate the general right of personality under Art. 2(1) in conjunction with Art. 1(1) GG of complainant 3.

aa) The child’s right of personality, which also includes the right to be given a first name and have it protected (cf. BVerfGE 24, 119 <144>; 72, 155 <172>; 79, 51 <63>; 104, 373 <392>; 109, 256 <266>), is particularly linked to the right of its parents under Art. 6(2) sentence 1 GG. The parental right is essentially a right in the interests of the child (cf. BVerfGE 72, 122 <137>) and is therefore to be regarded as rights “in trust” (cf. BVerfGE 59, 360 <376 and 377>; 64, 180 <189>). The parents must thus make the decision on their child’s name as part of their responsibility for the child (cf. BVerfGE 104, 373 <385>). This is a decision of particular significance for the child because the name supports the child in finding its identity and developing individuality (cf. BVerfGE 104, 373 <392>).

bb) In the challenged decisions, the courts have not given sufficient consideration to the right of personality of complainant 3. As set out above under letter a), their decisions were not guided by the best interest of the child. This not only violated the parental rights of complainants 1 and 2; it also disregarded the right of personality of complainant 3, which complainants 1 and 2 exercised in trust on his behalf by giving him a name.

c) The challenged decisions are grounded in these fundamental rights violations. It cannot be ruled out that the courts would have reached a different decision had they given sufficient consideration to the parental right under Art. 6(2) sentence 1 GG of complainants 1 and 2, and the right of personality under Art. 2(1) in conjunction with Art. 1(1) GG of complainant 3.

3. Given that the complainants’ constitutional complaint is already well-founded due to the violation of Art. 2(1) in conjunction with Art. 1(1) GG and Art. 6(2) sentence 1 GG, it is not necessary to decide whether there were other fundamental rights violations, as alleged.

4. In accordance with § 95(2) BVerfGG, the challenged decisions are reversed and the matter is remitted to the Higher Regional Court for continuation of the first appeal proceedings with case number 11 Wx 26/02.

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