Reply to Recommendation 1271 (1995) on discrimination between men and women in the choice of a surname and in the passing on of parents' surnames to children
Doc. 7521
12 April 1996COMMUNICATION FROM THE COMMITTEE OF MINISTERS
adopted by the Committee of Ministers on 3 April 1996 at the 562nd meeting of the Ministers' Deputies
The Committee of Ministers took note with interest of Parliamentary Assembly Recommendation 1271 (1995) on discrimination between men and women in the choice of a surname and in the passing on of parents' surnames to children.
The Committee of Ministers agrees with the Parliamentary Assembly that the question of the choice of a surname and the passing on of surnames to children needs to be discussed as long as a number of legal, statutory and/or practical measures may be regarded as discriminatory by women and men in Europe. The issue of discrimination in the matter of names arises in the same way with regard to spouses' name(s) and the passing on of parents' name to children, and should be dealt with in a comprehensive manner. Long-standing customs and traditions in the matter of surnames give precedence to the man's surname and many of them are consequently out of step with the trend towards equality between women and men in European societies.
The Committee of Ministers is aware that the right to retain one's name can be a significant issue for many people, since it brings the individual's identity into play - witness the Committee's Resolution (78) 37 of 27 September 1978 on equality of spouses in civil law. It recalls that the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 18 December 1979, which most Council of Europe member states have signed and ratified, provides that the states Parties shall take all appropriate measures to secure and promote the principle of equality between spouses, notably regarding the legal status of their names.
These two international instruments, with which the Parliamentary Assembly is familiar, moreover, have strongly influenced legislation in several states, which have amended their domestic law in compliance with the principle of equality between women and men regarding the family name and the passing on of the name to children. Although some Council of Europe member states do not yet fully comply with the provisions of those instruments, the principle of promoting equality between women and men remains a major objective both to them and to the Organisation. This principle is also reflected in the case-law of the European Court of Human Rights (see judgment of 28 January 1994 in the case of Burghartz v. Switzerland).
The Committee of Ministers nevertheless wishes to point out that the legal systems applicable to the right to a name in the member states vary considerably from one country to another and depend to a great extent on local customs and traditions. This diversity should be respected and the Committee of Ministers does not consider it necessary to devise a uniform system in the matter.
However, the maintenance of provisions discriminating between women and men with regard to the choice of a family name is not compatible with the principle of equality upheld by the Council of Europe. It is with this in mind that Parliamentary Assembly Recommendation 1271 (1995) has been transmitted to the Governments of the Council of Europe member states.