Key facts of the case:
The mother of a child and the Institute for the Equality of Women and Men have lodged two actions before the Constitutional Court for annulment of Article 2 of the Law of 8 May 2014 amending the Civil Code with the aim of establishing equality between men and women regarding the transmission of the family name to the child or adopted child. This Act provides the possibility for parents to give a child the family name of the mother, father or both. However, in case of disagreement, or when no choice has been made, the family name of the father is prevails.
In its claim, the Institute for the Equality of Women and Men firstly argues that by introducing a right of veto to the father concerning the transfer of the family name to the child, the provision attacks a number of fundamental rights provisions, including Articles 10 and 11 of the Belgian Constitution (which guarantee equality and non-discrimination), Articles 8 and 14 of the European Convention of Human Rights (ECHR), and Articles 7, 20, 21 and 23 of the Charter of fundamental rights of the EU (Charter). By not safeguarding the right to carry on the names of both parents, the provision discriminates against mothers and infringes their right to respect for private and family life. The claimant emphasised that while the difference may only be justified on the basis of strong considerations, tradition and a progressive approach to equality do not constitute sufficient justification. The claimant also pointed to the obligation for the legislator to guarantee, equally, the rights of man and woman and the aim pursued by Article 23 of the Charter. A final point was the widespread impact of the legislation, on Belgians and non-Belgians alike, given the increasing numbers of European citizens living in Belgium.
Secondly, the claimant states that the fact that the law does not provides any judicial remedy to the mother in cases where the father refuses the combination of the names is inconsistent with Articles 6 and 16 of the ECHR and Articles 47 and 48 of the Charter and Article 14 of the International Covenant on Civil and Political Rights which provides for the right to a fair trial and the rights of defence.
Outcome of the case:
In its ruling, the Court recalled that although the right to transmit his/her name to his/her child is not a fundamental right – thereby giving the legislator wide discretion – the latter must nonetheless respect the principle of equality and non-discrimination, in conjunction with the right to respect for private and family life. It also specifies that while not being a fundamental right, the parents have a clear and personnel interest in intervening in the process of determination of their children’s family name.
The preparatory works of the new Article 335(1), 2° of the Civil Code aims to establish the equality between men and women in the transmission process of the family name. However, the Court affirmed that the contested provision treats people in similar situations differently, since in case of disagreement between the parents, or failure to assign a name, the child must bear the family name of the father. Mothers are thus treated in a different way than fathers in their right to transmit their family name to their child. The Court found that this difference in treatment is based on the criterion of sex. Only very strong considerations may justify a difference in treatment exclusively based on sex and the Court found that neither tradition nor the adoption of a progressive approach to equality could be considered strong reasons justifying the difference in treatment while the objective of the new law was to establish equality between men and women.
Consequently, the Court concluded that Article 335(1), 2° of the Civil Code infringes Article 10, 11 and 11bis of the Constitution, which guarantees the equality between women and men and non-discrimination, and concluded that this article must be repealed. The Court therefore annulled the provision, which must be amended by the end of 2016. However, it did not give any preference as to what the new rule should look like.
"...the contested provision infringes Articles 7, 20, 21 and 23 of the Charter because it’s effect is to grant the father with a right of veto for the transmission of the family name. This constitutes a discriminatory attempt on the right of privacy and family life, the distinction being based on the ground of sex, which cannot be reasonably justified."
"La partie requérante dans l’affaire n° 6098 prend un premier moyen de la violation (…) des articles 7, 20, 21 et 23 de la Charte des droits fondamentaux de l’Union européenne (…). Selon la partie requérante, l’article attaqué méconnaît ces dispositions en ayant pour effet de conférer au père de l’enfant un droit de veto quant à la transmission du nom. Ceci constituerait une atteinte discriminatoire au droit au respect de la vie privée et familiale, la distinction étant fondée sur le critère du sexe qui ne pourrait être justifié raisonnablement."