Dear Mr X,

On 27 November 2019, you submitted a complaint to the European Ombudsman against the European Commission. Your complaint concerns your infringement complaint against Germany regarding a violation of EU law, because the German state refused to recognise your marriage and to accept a change of surname. In your view, the Commission should have opened infringement proceedings against Germany. The Ombudsman has asked me to deal with your complaint and to reply on her behalf.

Based on the information provided by you, the Ombudsman finds no maladministration by the Commission.^[1]

Your infringement complaint is based on the alleged infringement of EU law, in particular of your right to freedom of movement. Following your marriage in the Netherlands, you requested the recognition of your marriage in Germany. The German authorities refused to recognise the marriage, because at that time, same-sex marriages did not exist under German law. Consequently, the German authorities required you to have your marriage recognised as civil partnership for the change of family name to be granted. You refused to do this.

The Commission explained that under the EU Treaties, the Commission can only act in cases that fall within the scope of EU law. The EU Charter of Fundamental Rights only applies in cases where Member States apply EU law. The subject-matter concerned in your case does not relate to the application of EU law. The laws on the civil status of a person, including a person’s status, which is relevant to the rules on marriage, are matters that fall within the competence of the Member States. The Member States are thus free to decide whether or not to allow marriage for persons of the same sex.

The Commission also informed you that in exercising their competence, Member States have to comply with EU law, in particular with the freedom of movement. The Commission analysed whether the German legislation would impede your right to freedom of movement within the EU. It concluded that this was not the case and that the German legislation did not infringe EU law. The Commission consequently decided to close the infringement procedure.

The Commission enjoys wide discretionary powers in deciding whether or not to start an infringement procedure against a Member State. Besides, infringement proceedings do not constitute a legal remedy for individual cases of potential incorrect application of EU law. The Commission cannot determine liability or annul a national measure in any individual case. Rather, the primary purpose of infringement proceedings is to ensure that Member States give effect to EU law in general.

In this case, Germany has introduced the possibility for persons of the same sex to get married in October 2017. The question of whether the German legislation not recognising same-sex marriages or the refusal to recognise your marriage under Dutch law infringes EU law is therefore no longer relevant. You are now free to have your marriage recognised in Germany and to have your surname changed in accordance with the rules applicable to married persons.

It is therefore my view that the Commission’s reply to you, that it would not further investigate your case, was reasonable.

I hope that the above information and explanations are helpful.

The Ombudsman closes the case.

Yours sincerely,

 

Fergal Ó Regan

Head of Inquiries - Unit 2

Strasbourg, 13/01/2020

 

[1] Full information on the procedure and rights pertaining to complaints can be found at https://www.ombudsman.europa.eu/en/document/70707