A tale for our time: Princess Ilonka and the Landeshauptmann

Until very recently tytoc collie had never heard of Ilonka Sayn-Wittgenstein.  Now he thinks she's heading to be a household name, either as described above or, as she would prefer it, as Ilonka Fürstin von Sayn-Wittgenstein.  The long name is banned by the Austrians, it seems, but the Germans have no problems with it.  The lady is an Austrian, but lives and works in Germany.  All this is the stuff of which exciting references to the Court of Justice of the European Union are made.  And don't think that this has nothing to do with intellectual property, because it does.

The history of Europe used to be
the story of mad kings; now we
have so few monarchs, our
legislators, administrators and
judiciary have to take it in turns
to be mad ...

The saga of Case C 208/09  Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien, in which the court gave its ruling on 22 December, all began in Vienna, Austria, in 1944 where Ilonka was born, instantly becoming an Austrian citizen. After later moving to Germany, where she became permanently resident, she was adopted in 1991 by a German citizen, one Lothar Fürst von Sayn Wittgenstein, through an order issued by the Kreisgericht Worbis (Worbis District Court); in the next year the same court issued a supplementary order to confirm that, following the adoption, Ilonka had indeed acquired the surname of her adoptive father as her name at birth, in the form ‘Fürstin von Sayn-Wittgenstein’.  The designation "Fürst", and its feminine form "Fürstin", mean "prince" and "princess" respectively.  This isn't always useful for professional purposes, but it was really handy for Ilonka, whose day job was selling castles and stately homes.  

At first all went well.  The Austrian authorities registered Ilonka's long but apparently legal surname in the Austrian register of civil status; she received a German driving licence in that name and incorporated a German company under it. Her Austrian passport was renewed at least once in her princessly persona, in which the Austrian consular authorities in Germany treated her to two certificates of nationality.

Without the goodwill in "Fürstin von", Ilonka might
end up selling castles of  a less grand nature

At this point things started going pear-shaped.  In November 2003 the Austrian Constitutional Court ruled, in a similar case, that Austria's Law on the Abolition of the Nobility bans Austrian citizens from acquiring a surname which includes a former title of nobility by means of adoption by a German national who is permitted to bear that title as a constituent element of his name.  By this Law,no Austrian may bear titles of nobility, including those of foreign origin. Further, Austrian law, unlike German law, does not permit surnames to be formed according to rules that are different for men and women.  This being so, the Landeshauptmann von Wien (a sort of Viennese administrative top dog, this Kat thinks) decided that Ilonka's post-adoption birth certificate was incorrect and told her he was going to amend her surname in the register of civil status to ‘Sayn-Wittgenstein’.

The precise words with which Ilonka greeted this news are not recorded in the reference for a preliminary ruling, but tytoc collie guesses that they must have sounded impressive, even to a non-German-speaker.  Anyway, the good lady objected and maintained that, based on EU law, she was entitled to travel within the Member States of the European Union without having to change her name.. The Landeshauptmann von Wien was unmoved and lopped off the offending "Fürstin von".  Ilonka then took to the courts.  She argued on the basis of infringements of her rights to freedom of movement and to provide services, as guaranteed by the Treaties of the European Union: non-recognition of the effects of the adoption with regard to the law governing names amounted to an obstacle to the freedom of movement of persons because she would have to use different surnames in different Member States.  Also, in relation to public policy (the basis on which Austria bans handles of nobility), Member States were mutually obliged to restrict its application to the most necessary and most intolerable cases.  As if a plea based on economic freedoms wasn't enough, Ilonka invoked human rights (though this probably isn't the right court for that sort of plea: down the road in Strasbourg she might have had better luck).  She argued tht an amendment of the surname ‘Fürstin von Sayn Wittgenstein’ which she had used continuously for 15 years, constituted interference with the right to respect for family life guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Born in 1944?  tytoc collie hopes the castles
she sells are as well-preserved as she is ...

The Landeshauptmann was unmoved: there was nothing in this episode to cramp the right of freedom of movement provided for in Article 21 TFEU or seriously to inconvenience Ilonka -- she was not being required to use different names but merely to remove the noble element ‘Fürstin von’ from the surname ‘Sayn-Wittgenstein’, which remained unchanged. And even if she were to suffer some professional or personal inconvenience as a result of the correction to the birth register, that inconvenience should not be accorded an importance which would justify ignoring the Law on the abolition of the nobility. Adding insult to injury he even asserted that the Germans didn't know their own law: according to the German choice-of-law rules, he said, the name of a person is determined by the law of the State of which that person is a national. If it had correctly applied the law, the Kreisgericht Worbis should have concluded that Ilonka's name had to be determined under Austrian law. Since the form ‘Fürstin von Sayn-Wittgenstein’ is not authorised under Austrian law, its attribution to the applicant is incorrect under German law too.

Hearing this dispute, the Verwaltungsgerichtshof probably thought "(i) whichever side we hold for, we'll upset the other side, (ii) we can see both sides of the answer, (iii) we don't know the answer anyway and (iv) no-one likes the Court of Justice, which is in any event on neutral soil", so it decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article [21 TFEU] preclude legislation pursuant to which the competent authorities of a Member State refuse to recognise the surname of an (adult) adoptee, determined in another Member State, in so far as it contains a title of nobility which is not permissible under the (constitutional) law of the former Member State?’

The Court of Justice of the European Union (Second Chamber) has now held that the question should be answered as follows:

"Article 21 TFEU must be interpreted as not precluding the authorities of a Member State, in circumstances such as those in the main proceedings, from refusing to recognise all the elements of the surname of a national of that State, as determined in another Member State – in which that national resides – at the time of his or her adoption as an adult by a national of that other Member State, where that surname includes a title of nobility which is not permitted in the first Member State under its constitutional law, provided that the measures adopted by those authorities in that context are justified on public policy grounds, that is to say, they are necessary for the protection of the interests which they are intended to secure and are proportionate to the legitimate aim pursued".

In other words, the court is saying [according to Merpel]:

"We are delivering a ruling that is applicable only to situations with the same unusual facts as this one; we can't tell from Luxembourg whether the conditions in Austria in 2010 are such as to justify the protection of interests which they are intended to secure, not that we can even imagine what they are, and we leave it to the referring court to determine what the legitimate aim pursued by the Law on the Abolition of the Nobility is, and whether trying to stop a German resident from selling castles under her preferred name is a proportional response to the threat of people with funny names staging a coup and reinstating the Habsburgs".

tytoc collie, who has no interest in either promoting or preventing noble names, thinks the prohibition on Ilonka being able to use her chosen name is pathetic and an embarrassment to 21st century Austria.  Ilonka can register her full German name as a Community trade mark, which will cover the whole of Austria; she can trade in castles in Germany and watch with amusement as the goodwill in her business crosses the Austria-German border on foot, by car, on TV and radio and via the internet.  Austria has a past -- as do many countries -- and is entitled to escape from a return to it; but Austria also has a present and a future, and it may be wondered whether the ban on titles of nobility, and on Austrians getting adopted by title-bearing Germans, is still relevant.  Merpel adds, from a trade mark infringement and passing-off point of view (in those countries where it is appropriate), the "bona fide use of one's own name" defence generally depends on one's use of the exact name and not a variant of it; if Ilonka is unable to continue to use the name of her choice, the availability of that defence might be at risk.

Castles in the air here, here and here