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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on 4 August 2009
Adopts the following:
Decision on admissibility
1. The authors of the communication dated 6 July 2006 are Michèle Dayras,
Nelly Campo-Trumel, Sylvie Delange, Frédérique Remy-Cremieu, Micheline
Zeghouani, Hélène Muzard-Fekkar and Adèle Daufrene-Levrard, seven French
nationals who are represented by SOS Sexisme, an organization based in
Issy-les-Moulineaux, France. They claim to be victims of a violation by
France of the Convention on the Elimination of All Forms of Discrimination
against Women. The Convention and its Optional Protocol entered into force
for the State party on 13 January 1984 and 9 September 2000, respectively. A
reservation was entered by France on ratification to article 16, paragraph 1
(g), of the Convention.
THE FACTS AS PRESENTED BY THE AUTHORS
2.1 Ms. Dayras, Chairperson of the organization SOS Sexisme, and Ms.
Zeghouani are unmarried and have no children. They were born, respectively,
in 1938 and 1941. They allege that they have chosen to remain childless
because of their inability to transmit their family names to their children
under French law.
2.2 Ms. Campo-Trumel, born in 1938, is the mother of two children, aged 40
and 46. Ms. Delange, born in 1952, is the mother of two children, aged 14
and 23. Ms. Muzard-Fekkar, born in 1922, is the mother of six children
between the ages of 48 and 59. Ms. Remy-Cremieu, born in 1941, is the mother
of two children, aged 32 and 36. Ms. Daufrene-Levrard, born in 1941, is the
mother of two children, aged 33 and 40. Ms. Campo-Trumel, Ms. Delange, Ms.
Muzard-Fekkar, Ms. Remy-Cremieu and Ms. Daufrene-Levrard are all married,
and their children bear their fathers' family name. They allege that their
children will not benefit from new French legislation that allows married
women under certain circumstances to transmit their family names to their
children.
2.3 Ms. Dayras, Ms. Muzard-Fekkar and Ms. Daufrene-Levrard furthermore wish
to take their mothers' family names as their own. However, in view of the
fact that, according to the Garde des Sceaux (Minister of Justice), that
wish cannot be considered as a lawful interest, the procedure to apply for a
change of name would be unsuccessful.
THE COMPLAINT
3.1 The authors allege that the Act of 4 March 2002 on family names, amended
by the Act of 18 June 2003, which entered into force on 1 January 2005, is
discriminatory towards married women because it gives fathers the right to
veto the transmission of the family name of their wives to their children.
Although this new legislation allows parents to pass on either spouse's
family name to their children or a hyphenated name using the family names of
both spouses, the authors complain that when the spouses disagree, the
father's family name is transmitted to the children. Furthermore, when the
spouses do not specify that the family name of the wife should be passed on
to the child, the child automatically is given the husband's family name.
The authors argue that this situation violates the principle of equality
between men and women. They further contend that the fact that a hyphenated
name cannot be passed on from one generation to the next also limits women's
equality with men.
3.2 The authors further allege that, because the Act of 4 March 2002,
amended by the Act of 18 June 2003, applies only to children born after 1
January 2005 and to children who are younger than 13 as at 1 September 2003,
they remain barred from taking their mothers' family names as their own.The
authors further contend that article 43 of Law No. 85-1372 of 23 December
1985 concerning equality of spouses, which allows for a nom d'usage, is not
meant to establish equality between women and men in this area.
3.3 For the above reasons, the authors allege that the Act of 4 March 2002
on family names, amended by the Act of 18 June 2003, violates the Convention
on the Elimination of All Forms of Discrimination against Women although
they do not substantiate their complaint under any articles of the
Convention. However, they aver violations of other international agreements
ratified by France, namely article 8, in conjunction with article 14, of the
Council of Europe Convention for the Protection of Human Rights and
Fundamental Freedoms as well as article 5 of Protocol 7 to that Convention
on equality between spouses. The authors also refer to recommendations 1271
(1995) and 1362 (1998) of the Parliamentary Assembly of the Council, in
which it invites States parties to take measures to eliminate all
discrimination between men and women in the legal system governing family
names.
3.4 As to the admissibility of the communication, the authors indicate that
Ms. Dayras, Ms. Zeghouani, Ms. Remy-Cremieu, Ms. Muzard-Fekkar, Ms. Campo-Trumel
and Ms. Delange, and six other women lodged an application with the European
Court of Human Rights on 12 December 2000, alleging that under French
legislation applicable at that time, children born in wedlock were forced to
take the family name of their mothers' husbands in breach of article 8, in
conjunction with article 14, of the Convention for the Protection of Human
Rights and Fundamental Freedoms. On 6 January 2005, the Court declared the
application inadmissible for the following reasons: Ms. Dayras and Ms.
Zeghouani could not be considered victims in accordance with article 34 of
the Convention, as they were neither married nor parents. With regard to Ms.
Remy-Cremieu and Ms. Muzard-Fekkar, the Court found that they had not
exhausted domestic remedies because they had not used the procedure under
article 61-1 of the Civil Code, which allows a person with a lawful interest
to apply for a change of name.
3.5 Regarding the exhaustion of domestic remedies, the authors allege that
the use of the procedure under article 61-1 of the Civil Code is
unreasonably prolonged. They refer to the case Mustafa v. France to claim
that the average time needed for the completion of such a procedure is at
least 10 years FN1 The authors explain that, on average, it takes one year
for the Garde des Sceaux to take a decision, one year to appeal to the
Administrative Tribunal and one and one-half years for the Administrative
Tribunal to deliver a decision. Thereafter, the Administrative Appeals Court
allegedly takes three years to reach a decision. The authors claim
furthermore that the Conseil d'État, to which a further appeal can be
lodged, rejects most appeals unless there have been errors in the
application of the law or the assessment of facts. The authors also contend
that a claim would subsequently have to be brought to the European Court of
Human Rights.
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FN1 European Court of Human Rights, Mustafa v. France, 17 June 2003, No.
63056/00.
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3.6 The authors further claim that the procedure governed by article 61-1 of
the Civil Code is unlikely to bring effective relief because the Garde des
Sceaux has ruled in similar cases that the interest a woman may have in
taking her mother's family name did not amount to a lawful interest but
rather was based on emotional grounds.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 By its submission of 25 May 2007, the State party challenges the
admissibility of the communication on the following grounds: that the
communication is incompatible with article 16, paragraph 1 (g), of the
Convention in the light of the reservation entered to that article by
France; that some of the authors are not victims within the meaning of
article 2 of the Optional Protocol; that the communication is inadmissible
ratione temporis under article 4, paragraph 2 (e), of the Optional Protocol
in relation to some of the authors; that the same matter has already been
examined under another procedure of international investigation or
settlement under article 4, paragraph 2 (a), of the Optional Protocol; and
that all available domestic remedies under article 4, paragraph 1, of the
Optional Protocol have not been exhausted.
4.2 The State party firstly requests that the reservation it entered upon
ratification of the Convention to article 16, paragraph 1 (g), be taken into
account. The State party is of the view that, although article 17 of the
Optional Protocol prohibits reservations to the Optional Protocol, article 2
must be read in the light of the Convention as ratified by the State party,
that is, with the reservations and declarations entered by the State party.
The State party therefore submits that the communication should be declared
inadmissible, being incompatible with the provisions of the Convention.
4.3 The State party considers the communication to be inadmissible on the
grounds that some of the authors, namely Ms. Dayras, Ms. Zeghouani and Ms.
Daufrene-Levrard, are not victims within the meaning of article 2 of the
Optional Protocol.
4.4 The State party considers that the assertions of Ms. Dayras and Ms.
Zeghouani that they chose to remain childless because they could not pass on
their family name to their children to be speculative and abusive. The State
party therefore submits that Ms. Dayras and Ms. Zeghouani are not victims
within the meaning of article 2 of the Optional Protocol.
4.5 With regard to Ms. Daufrene-Levrard, the State party submits that she is
not a victim within the meaning of article 2 of the Optional Protocol
because she did not provide her marital status and did not offer proof that
her children had been automatically given their father's family name at
birth.
4.6 With regard to Ms. Campo-Trumel, Ms. Delange, Ms. Muzard-Fekkar and Ms.
Remy-Cremieu, all of whom are married and have children who bear their
fathers' family name, the State party concedes that it is possible for them
to consider themselves victims of discrimination because they were unable to
transmit their family name to their children.
4.7 The State party submits that Ms. Dayras, Ms. Muzard-Fekkar and Ms.
Daufrene-Levrard, who also wish to take their mother's family name as their
own, have failed to substantiate that they suffer any sex-based
discrimination because they were forced to bear their fathers' family name.
The State party argues that the mothers of Ms. Dayras, Ms. Muzard-Fekkar and
Ms. Daufrene-Levrard might have been considered victims because they were
unable to transmit their family names to their daughters, but that, from the
perspective of the children, there is no discrimination, as the family name
they are given is not dependent on their sex.
4.8 The State party submits that the communication is inadmissible ratione
temporis with regard to Ms. Campo-Trumel, Ms. Muzard-Fekkar, Ms. Remy-Cremieu
and Ms. Delange. It notes that the Optional Protocol entered into force for
France on 22 December 2000. It further notes that, according to the
Committee's decision on communication 11/2006 (Salgado v. United Kingdom),
the discrimination against the authors would have ended when their children
reached the age of majority. Once children reach the age of majority, only
they may decide to change their family names or to keep them. Therefore, the
State party submits that discrimination against the authors ended in 1985
for Ms. Campo-Trumel, in 1977 for Ms. Muzard-Fekkar and in 1993 for Ms.
Remy-Cremieu. Regarding Ms. Delange, the State party argues that her
allegation is inadmissible ratione temporis with regard to her eldest child
only.
4.9 The State party also argues that the same matter has already been
examined under another procedure of international investigation or
settlement. Ms. Delange is one of the claimants who applied to the European
Court of Human Rights and whose claim was deemed inadmissible because of the
non-exhaustion of domestic remedies. The State party submits that the
communication before the Committee on the Elimination of Discrimination
against Women is in part the same as the one brought by Ms. Delange to the
European Court of Human Rights. The State party submits that the part of the
complaint that concerns alleged discrimination under previous legislation
governing the transmission of family names, which was applicable at the time
that the case was brought before the Court, is inadmissible. As to the part
of the complaint concerning alleged discrimination under the legislation of
18 June 2003, the State party requests the Committee to ascertain that Ms.
Delange has not introduced a new complaint to the European Court of Human
Rights.
4.10 The State party further argues that Ms. Delange did not exhaust
domestic remedies to obtain a change of name for her youngest child, who is
now 14 years old, under article 61-1 of the French Civil Code stating that
every person with a lawful interest can apply for a change of name to the
Garde des Sceaux, and that a refusal by the Garde des Sceaux may be appealed
to the Administrative Tribunal, and the latest decision may be appealed
against to the Administrative Appeals Court, with the Conseil d'État being
the highest instance. The State party submits that the case law of the
Conseil d'État shows that a wish to bear one's mother's family name can
constitute a lawful interest FN2. Therefore, the State party contends that
Ms. Delange, as the parent of a minor child, may still ask for a change of
name for her youngest child, if he/she consents FN3. The State party further
argues that, should the Garde des Sceaux and the Administrative Tribunal
refuse the name change on the grounds that there is no lawful interest, Ms.
Delange could appeal to the Conseil d'État. The State party maintains that
the likelihood of obtaining redress through the remedy offered by article
61-1 of the Civil Code is very high.
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FN2 The Government refers to the following two decisions by the Conseil
d'État : a decision dated 23 May 1986 (application No. 56883) and a decision
dated 9 October 1985 (application No. 50267)FN3 Article 61-1 of the Civil
Code stipulates that children aged 13 and above have to give their consent
to a name change.
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4.11 The State party rejects the allegation of the authors that the
procedure governed by article 61-1 of the Civil Code would be unreasonably
prolonged. The State party maintains that the case law referred to by the
claimant is irrelevant because the duration of administrative procedures has
greatly improved since then. The State party indicates that in 2002, the
Conseil d'État upheld the right of a claimant to obtain a judgment by an
administrative judge within a reasonable length of time and that this has
now become a general principle governing the functioning of administrative
jurisdictions.FN4The State party further indicates that there have been
other improvements to ensure the timely functioning of administrative
jurisdictions. Article R 112-2 of the Code of Administrative Justice
provides that anybody who complains about the excessive length of a
procedure before an administrative tribunal or an administrative appeals
court can refer the matter to the permanent inspection chief of
administrative jurisdictions, who has the power to make recommendations to
remedy the situation. The State party therefore submits that the
communication is inadmissible because of the non-exhaustion of domestic
remedies under article 4, paragraph 1, of the Optional Protocol regarding
Ms. Delange's claim that the legislation of 18 June 2003 did not allow her
to pass her family name to her youngest child.
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FN4 The Government also refers to a decision of the European Court of Human
Rights on an effective remedy in administrative jurisdiction in France; see
case of Broca and Texier-Micault v. France, 21 October 2003.
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THE AUTHORS' COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
5.1 By their submission of 12 June 2007, the authors contend that because
article 17 of the Optional Protocol does not allow for any reservations, the
reservation France entered to article 16, paragraph 1 (g), of the Convention
has no effect and should not be taken into consideration by the Committee.
5.2 With regard to the definition of "victim" within the meaning of article
2 of the Optional Protocol, the authors maintain that Ms. Dayras and Ms.
Zeghouani did not want to have children because of legislation at the time
that did not allow married women to transmit their family name to their
children and because of society's rejection of single mothers. The authors
maintain that they remain victims even if they can no longer have children
because of their age.
5.3 With regard to Ms. Campo-Trumel, Ms. Delange, Ms. Muzard-Fekkar, Ms.
Remy-Cremieu and Ms. Daufrene-Levrard, the authors reiterate that they are
victims of a violation of the Convention on the Elimination of All Forms of
Discrimination against Women because their children will not benefit from
the new legislation and will have to initiate their own procedure to change
their family names. The authors do not agree with the State party's
contention that discrimination against them came to an end when their
children reached the age of majority. They argue that the discrimination
continues under the provisions of article 4, paragraph 2 (e), of the
Optional Protocol. They submit that discrimination as to the choice and the
transmission of family names persists in France. They argue further that the
transitory provisions of the new legislation should have been made
retroactive. Therefore, the authors argue that they have the right to seek
redress before the Committee because the discrimination continues against
them and their children. Ms. Daufrene-Levrard confirmed that she was married
and that her children had automatically been given their father's family
name at birth. The authors further note that the State party recognizes them
as victims within the meaning of article 2 of the Optional Protocol.
5.4 As to the wish of Ms. Dayras, Ms. Muzard-Fekkar and Ms. Daufrene-Levrard
to bear their mothers' family names, the authors maintain that the procedure
to change their family names is unlikely to be successful because the Garde
des Sceaux does not consider such wishes as amounting to a lawful interest.
5.5 The authors dispute the State party's view that the communication ought
to be declared inadmissible because the European Court of Human Rights has
already examined the complaint. They allege that the complaint brought to
the European Court did not cover discrimination resulting from the new
legislation of 18 June 2003, which entered into force on 1 January 2005. At
the time the case was brought to the Court, the rules governing the
transmission of family names were of a customary nature while now the
authors base their claims on the French revised legislation, in particular
article 311-21 of the Civil Code, FN5 in order to demonstrate that
substantive equality between men and women regarding the passing on of
family names does not exist.
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FN5 Article 311-21 of the Civil Code reads as follows: "Where the parentage
of a child has been established with regard to his two parents at the latest
on the day of declaration of his birth or afterwards but simultaneously, the
parents shall choose the family name which devolves upon him: either the
father's name, or the mother's name, or both names coupled in the order they
choose within the limit of one family name for each of them. Failing a joint
declaration to the officer of civil status mentioning the choice of the name
of the child, the latter shall take the name of the parent with regard to
whom his parentage has first been established and the father's name where
his parentage has been established simultaneously with regard to both. Where
a child of whom one parent at least is French is born abroad, parents who
have not availed themselves of the power to choose the name in the way
provided for in the preceding paragraph may make such a declaration at the
time of the registration of the record, at the latest within three years of
the birth of the child. A name devolving on a first child has effect as to
the other common children. Where the parents or one of them bear a double
family name, they may, by a joint written declaration, transmit only one
name to their children."
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5.6 With regard to the State party's averment that the authors did not
exhaust domestic remedies because they did not use the procedure for change
of name established by article 61-1 of the Civil Code, the authors reiterate
that the purpose of this procedure has not been specifically established to
deal with women who wish to take the family name of their mothers as their
own and that this procedure is excessively prolonged. In addition, the
authors contend that requests under this procedure are rarely made in order
to avoid the extinction of the mother's family name. The authors cast doubt
on the State party's assertion that the Conseil d'État could set aside
existing legislation in order to directly apply the Convention for the
Protection of Human Rights and Fundamental Freedoms and invalidate the
decree in which the request for a name change was denied. The authors
reiterate that the European Court of Human Rights has found French
procedures to change a family name to be excessively long. The authors,
therefore, submit that there are no effective remedies that would ensure
substantive equality between men and women in transmitting family names.
5.7 The authors reiterate their request to declare the communication
admissible, and only in the final paragraph of their comments on the State
party's observation on admissibility, they ask that the State party be
requested to comply with article 2 (f) of the Convention on the Elimination
of All Forms of Discrimination against Women and ask the Committee to
declare the communication admissible.
STATE PARTY'S FURTHER SUBMISSION ON ADMISSIBILITY AND OBSERVATIONS ON MERITS
6.1 By its submission of 26 September 2007, the State party reiterates, as
its main argument, that the communication ought to be declared inadmissible
in the light of the reservation it entered upon ratification to article 16,
paragraph 1 (g), of the Convention. The State party reiterates its averment
that Ms. Dayras and Ms. Zeghouani lack the quality of victim within the
meaning of article 2 of the Optional Protocol because they are childless;
that the communication is inadmissible ratione temporis under article 4,
paragraph 2 (e), of the Optional Protocol in relation to Ms. Campo-Trumel,
Ms. Muzard-Fekkar, Ms. Remy-Cremieu and Ms. Daufrene-Levrard and in relation
to Ms. Delange with regard to her eldest child; that the same matter has
already been examined under another procedure of international investigation
or settlement under article 4, paragraph 2 (a), of the Optional Protocol
with regard to the part of Ms. Delange's complaint, which concerns alleged
discrimination under previous legislation governing the transmittal of
family names; and that all available domestic remedies under article 4,
paragraph 1, of the Optional Protocol have not been exhausted for the part
of Ms. Delange's complaint concerning her youngest child..
6.2 With regard to the complaint made by Ms. Dayras, Ms. Muzard-Fekkar and
Ms. Daufrene-Levrard to the effect that they have been unable to take the
family name of their mothers as their own, the State party contends that
those authors failed to demonstrate that they suffer any sex-based
discrimination when they received the family name of their fathers at birth.
The State party further explains that in order to ensure stability in
respect of a person's civil status, the same rules apply to all siblings,
regardless of their sex. The State party therefore contends that this part
of the complaint is ratione materiae ill-founded.
6.3 With regard to the part of the complaint alleging that the Act of 4
March 2002, amended by the Act of 18 June 2003, is discriminatory towards
married women because it gives fathers the right to veto the transmission of
the family name of their wives to their children, the State party reiterates
that Ms. Dayras and Ms. Zeghouani cannot be victims of a violation of the
Convention because they are childless. The State party therefore concludes
that this part of their complaint is ill-founded. With regard to the part of
the complaint that concerns Ms. Campo-Trumel, Ms. Delange, Ms. Muzard-Fekkar,
Ms. Remy-Cremieu and Ms. Daufrene-Levrard, who all have children who bear
the family name of their fathers, the State party maintains that it is
imperative to reconcile the right of those authors not to be victims of
discrimination in the transmission of family names and the right of their
children to stability in respect of their civil status. The State party
further explains that a change of family name has an effect on society and
that this is the reason why the consent of children aged 13 and above is
required for a name change. The State party again referred to the
Committee's decision of 22 January 2007 on communication 11/2006, in which
it considered that the alleged violation, that is, that the author could not
transmit her nationality to her son, ended when her child reached the age of
majority. The State party asks the Committee to follow a similar line of
argument with regard to Ms. Campo-Trumel, Ms. Muzard-Fekkar, Ms. Remy-Cremieu
and Ms. Daufrene-Levrard, who have adult children. It further refers to the
right of the child to be registered immediately after birth and to have a
name, as enshrined in article 24, paragraph 2, of the International Covenant
on Civil and Political Rights and article 8 of the Convention on the Rights
of the Child, under which States parties undertake to respect the right of
the child to preserve his or her identity, including nationality, name and
family relations, as recognized by law, without unlawful interference and to
receive appropriate assistance and protection with a view to re-establishing
speedily his or her identity when illegally deprived of some or all of the
elements thereof. The State party argues that these rights need to be
reconciled with the right of a mother to recognition of the discrimination
that she suffered at birth because of her sex and notes that none of the
authors have indicated how their children feel about changing their family
name. The State party therefore submits that the Committee cannot assess the
compatibility of the authors' claims with the rights of their children,
which are directly at stake. In the light of the above, the State party
contends that any discrimination the authors may have suffered ended when
their children reached the age of majority. The State party further notes
that Ms. Delange, who has a minor child, does not demonstrate that her child
would agree to a change of family name and asks the Committee to dismiss
this part of the complaint.
6.4 With regard to the compatibility with the Convention of the Act of 4
March 2002, on family names, amended by the Act of 18 June 2003, the State
party reiterates that the communication ought to be declared inadmissible in
the light of the reservation it entered upon ratification to article 16,
paragraph 1 (g), of the Convention.
6.5 The State party draws attention to the progress it has made through the
adoption of the Act of 4 March 2002 on family names, amended by the Act of
18 June 2003, which permits the father and the mother to choose jointly
their children's family name, that is, the name of the father, the mother or
a hyphenated name in the order they choose. The State party points out that
only in cases where maternal and paternal filiations are established and the
parents disagree on the choice of the child's family name is the father's
family name transmitted to the child against the mother's wishes. The State
party explains that the rationale for the rule is the best interest of the
child. The State party also refers to article 16, paragraph 1 (d), of the
Convention on the Elimination of All Forms of Discrimination against Women,
which provides that the interests of the children shall be paramount.
6.6 The State party further explains that it decided to keep the previous
rule in cases of disagreement between the parents in order to prevent
litigation on the transmission of family names and to avoid situations in
which a child is placed at the centre of a conflict involving his/her
parents. It therefore reiterates that the Act of 4 March 2002 on family
names, amended by the Act of 18 June 2003, constitutes a considerable leap
towards equality between men and women in the family as well as a reform of
major importance. The State party asks the Committee to take into
consideration the decision of the European Court of Human Rights of 27
September 2001 in the case of G.M.B. and K.M. v. Switzerland in which the
Court stated that the respondent State, Switzerland, must be afforded a wide
margin of appreciation in matters relating to the transmission of family
names. The State party therefore contends that the Act of 4 March 2002 on
family names, amended by the Act of 18 June 2003, is the result of necessary
reconciliation between the interest of the child to have and keep his/her
family name, the interest of society in maintaining stability in terms of a
person's civil status and equality between spouses in the transmission of
family names.
6.7 For the above reason, the State party requests the Committee to declare
the communication inadmissible in relation to all the authors.
COMMITTEE'S INTERIM DECISION
7. At its forty-second session, the Committee considered the communication
and concluded that it also appeared to raise issues under articles 2, 5 and
16, paragraph 1, of the Convention. The parties were invited to provide
observations in relation to those articles.
AUTHORS' COMMENTS IN REPLY TO THE COMMITTEE'S INTERIM DECISION
8. By their submissions of 12 January 2009, the authors state that in their
view undisputedly article 2, 5 and 16 of the Convention have been violated.
With regard to article 16, they only address article 16, paragraph 1 (g) and
the reservation which France entered upon ratification and reiterate their
earlier submission that the reservation has no effect and should not be
considered on account of the fact that article 17 of the Optional Protocol
does not allow any reservation. With regard to article 2 and 5 which they
address together, they give the historical background and social context of
French law governing family name. They explain the customary nature of the
rule according to which married women traditionally bear their husbands'
family names and the origin of such a rule, which is grounded in married
women's submission to their husbands' authority, a consequence of which is
the impossibility for them to transmit their family names to their
descendants. They argue that the the fact that the vast majority of married
and divorced women continue to use their husbands' or ex-husbands' family
names shows the significant social weight of such a custom. The authors
therefore submit that the State party did not take any appropriate measures
to modify or abolish existing legislation, regulations, custom and practice
that constitute discrimination against women, in violation of article 2 of
the Convention. They contend that the Act of 4 March 2002 on family names,
amended by the Act of 18 June 2003, has also failed to realize equality
between the parents, as it maintains paternal superiority, which was, prior
to the legislative reform, of a customary nature. In this regard, the
authors claim that the State party has violated article 5, paragraph (a), of
the Convention. The authors further reiterate that, because the Act of 4
March 2002, amended by the Act of 18 June 2003, has no retroactive effect
and only applies to children born after 1 January 2005 and to children who
are younger than 13 as at 1 September 2003, they remain barred from taking
their mothers' family names. They also avert that the procedure for a change
of name under article 61 of the Civil Code is unlikely to be effective and
that such a procedure is also very lengthy and costly The authors conclude
that France is a very conservative country in which paternal superiority
with regard to the transmission of family name persists.
STATE PARTY'S OBSERVATIONS IN REPLY TO THE COMMITTEE'S INTERIM DECISION
9.1 By its submission of 24 April 2009, the State party provides its
comments on the Committee's interim decision and also reiterates all its
earlier submissions.
9.2 The State party recalls that the authors, who criticize in abstracto the
French law on the transmission of family names, did not invoke any specific
articles of the Convention in their communication before the Committee, but
instead invoked specific provisions of the Convention on Human Rights and
Fundamental Freedoms. The State party explains that in the light of the line
of argument used by the authors, it had examined the authors' complaint with
regard to article 16, paragraph 1 (g), of the Convention. The State party
further recalls that it had challenged the admissibility primarily in the
light of the reservation it had entered to this article and that article 17
of the Optional Protocol invoked by the authors relates only to the
prohibition to enter reservations to this instrument, the possibility of
entering reservations to the Convention being expressly stipulated in
article 28 thereof.
9.3 While understanding the Committee's interim decision, which would enable
it to extend the consideration of the communication under provisions on
which no reservations were entered, the State party expresses the view that
this entails serious legal difficulties. The State party explains that the
first difficulty relates to the principle of lex specialis, according to
which the conformity of a national measure with the Convention needs to be
assessed in the light of the most specific provisions in the field covered.
The State party refers to a report by the International Law Commission
reaffirming that the lex specialis principle is a generally accepted
technique of interpretation and conflict resolution in international law and
is applicable between provisions contained in a single treaty or in two
treaties or more. FN6 The State party therefore concludes that since article
16, paragraph 1 (g), relates to the choice of family name and in particular
the right of married women to choose a family name which should be
considered to include the right to transmit their family name to their
children, that article is the only provision in the Convention in relation
to which the national legislation governing the transmission of family names
should be assessed. The State party also underlines that failure to apply
the principle of lex specialis could have detrimental consequences as far as
reservations and declarations are concerned. Far from ensuring better
protection of rights, such a "requalification" could prompt States in the
future to formulate reservations with the widest possible reach to the
detriment of precise reservations, like the one entered by the State party
to article 16, paragraph 1 (g). According to the State party, such a signal
sent to States which are not yet parties to the Convention could, be
extremely harmful to the Convention and the rights it seeks to protect.
---------------------------------------------------------------------------------------------------------------------
FN6 Report of the Study Group on the Fragmentation of International Law:
difficulties arising from the diversification and expansion of international
law (A/CN.4/L.682 and Corr.1).
---------------------------------------------------------------------------------------------------------------------
9.4 Should the Committee decide to consider the communication under articles
2, 5 and 16, paragraph 1, the State party submits that it would have an
impact only on the admissibility aspect of the communication in relation to
the reservation, but in no way would it affect the other inadmissibility
grounds it has raised in its earlier submissions. The State party therefore
argues that some of the authors still would not be able to claim to be
victims of discrimination derived from bearing their fathers' family name,
since all children, independently of their sex, are named in an identical
manner. Furthermore, the authors who do not have children cannot allege that
they have suffered discrimination based on sex regarding the transmission of
their family name to their descendants. As a consequence, article 2 of the
Convention, which prohibits discrimination between women and men and article
16, paragraph 1, which deals with discrimination against women in all
matters relating to marriage and family relations, cannot be invoked and are
not applicable. The State party further argues that article 5 is also
irrelevant since the law, which the authors are challenging, does not relate
to prejudices and customary practices based on the idea of inferiority or
the superiority of either of the sexes.
9.5 With regard to the procedure for a change of name and the exhaustion of
domestic remedies, the State party reiterates that article 61-1 of the Civil
Code allows a person with a lawful interest to apply for a change of name
and that the decision by the Garde des Sceaux can be appealed before the
administrative jurisdictions (administrative tribunal, administrative court
of appeals and Conseil d'État). The State party stresses the point that the
authors have neither established nor contended that they had exhausted
domestic remedies nor explained at the national level their interest in
changing their or their children's family names. The State party expresses
the view that in such circumstance the authors cannot allege that domestic
remedies are ineffective and refers again to case law in which the
administrative jurisdiction had recognized that individuals could have a
legitimate interest in taking their mothers' family name. The State party
also draws the Committee's attention to a recent decision of the European
Court of Human Rights delivered on 17 March 2009 in which it declared a
communication inadmissible on the grounds that the author had not, in the
context of article 61 of the Civil Code, appealed against the negative
decision of the Garde des Sceaux to the administrative jurisdictions.FN7
---------------------------------------------------------------------------------------------------------------------
FN7 European Court of Human Rights, decision on admissibility, Anne Duda v.
France, 17 March 2009, No. 37387/05. See also mutatis mutandis, Michèle
Dayras and others v. France, 6 January 2005, No. 65390/01.
---------------------------------------------------------------------------------------------------------------------
9.7 The State party therefore reiterates its request to the Committee to
declare the communication inadmissible.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE CONCERNING ADMISSIBILITY
10.1 In accordance with rule 64 of its rules of procedure, the Committee
shall decide whether the communication is admissible or inadmissible under
the Optional Protocol.
10.2 In accordance with rule 66 of its rules of procedure, the Committee may
decide to consider the question of admissibility and the merits of a
communication separately.
10.3 The Committee has carefully considered all the arguments of the authors
in support of their claim, as well as the grounds raised by the State party
in challenging the admissibility of the communication. The Committee has
also considered the additional observations of both the authors and the
State party submitted in the light of its interim decision taken at its
forty-second session. In the light of all the submissions made by the
parties and especially the doctrine of lex specialis raised by the State
party, the Committee is of the view that the present communication should be
examined under article 16, paragraph 1 (g), of the Convention.
10.4 The Committee notes that the State party challenges the admissibility
of the communication on the grounds that Ms. Dayras and Ms. Zeghouani are
not victims under article 2 of the Optional Protocol.
10.5 The Committee notes that Ms. Dayras and Ms. Zeghouani are neither
married nor do they live in husband-and-wife relationships, nor do they have
any children to whom to pass on their family names. Article 2 of the
Optional Protocol provides that communications may be submitted by
individuals under the jurisdiction of a State party "claiming to be victims
of a violation of any of the rights set forth in the Convention by that
State party".FN8
---------------------------------------------------------------------------------------------------------------------
FN8 The Human Rights Committee has clarified that "a person can only be a
victim in the sense of article 1 of the Optional Protocol if he or she is
actually affected. It is a matter of degree how concretely this requirement
should be taken. However, no individual can in the abstract, by way of an
actio popularis, challenge a law or practice claimed to be contrary to the
Covenant" (see Aumeeruddy-Cziffra v. Mauritius, communication No. 35/1978).
---------------------------------------------------------------------------------------------------------------------
10.6 The Committee takes note of the broad scope of article 16 of the
Convention, which addresses the equal rights of married women or women
living in de facto union with men in all matters relating to marriage and
family relations. The Committee is of the view that article 16, paragraph 1
(g), aims to enable a married woman or a woman living in a husband-and-wife
relationship to keep her maiden name, which is part of her identity, and to
transmit it to her children, and as such its beneficiaries are only married
women, women living in de facto union and mothers.
10.7 The Committee therefore shares the view of the State party that since
Ms. Dayras and Ms. Zeghouani are not married, do not live in
husband-and-wife relationships and do not have children, they cannot claim
rights pertaining to the use or the transmission of family names and cannot
be victims of a right whose beneficiaries are only married women, women
living in de facto union or mothers. Although the Committee shares the view
of the authors that the Act of March 2002 on family names, amended by the
Act of 18 June 2003, is still discriminatory against women, the Committee
notes that since Ms. Dayras and Ms. Zeghouani are childless, they have not
personally been adversely affected by French legislation currently in force
on the transmission of family names to children. The Committee therefore
concludes that Ms. Dayras and Ms. Zeghouani are not victims within the
meaning of article 2 of the Optional Protocol, and therefore finds the
communication inadmissible in relation to those two authors.
10.8 Further, the Committee shares the view of the State party that Ms.
Dayras, Ms. Daufrene-Levrard and Ms. Muzard-Fekkar, who also wish to take
their mothers' names, have not attempted to exhaust domestic remedies and
have not shown that they suffer any sex-based discrimination when they
receive the family name of their fathers at birth, as the family name they
are given is not dependent on their sex.
10.9 With regard to Ms. Daufrene-Levrard, Ms. Campo-Trumel, Ms.
Muzard-Fekkar, Ms. Remy-Cremieu and Ms. Delange whose complaint relates to
the prevailing discriminatory provisions in French legislation which they
allege prevent them from transmitting their family names to their children,
although the Committee shares their concern that their children will not
benefit from the new legislation as the Act of 4 March 2002 on family names,
amended by the Act of 18 June 2003, applies only to children born after 1
January 2005 and to children who are younger than 13 as at 1 September 2003,
the Committee notes that none of the above five authors have given any
details concerning the consent or willingness of their adult children to
change their family names. The Committee is of the view of that, although
Ms. Daufrene-Levrard, Ms. Campo-Trumel, Ms. Muzard-Fekkar, Ms. Remy-Cremieu
and Ms. Delange, all of whom are married and have children who bear their
fathers' family name, might consider themselves victims of discrimination
because they were unable to transmit their family names to their children,
the discrimination against them ended when their children reached the age of
majority. The Committee therefore concludes that as at 1 January 2005, all
the children of these five authors, except the youngest child of Ms. Delange,
had reached the age of majority and had therefore become the primary-rights
holders in relation to acquiring or changing their family names. From then
on, it is up to them, and not their mothers, to decide whether or not to
change their family names. The Committee came to a similar conclusion in
communication 11/2006 (Salgado v. United Kingdom) when it decided that the
alleged violation that the author could not transmit her nationality to her
son ended when latter reached the age of majority. FN9
---------------------------------------------------------------------------------------------------------------------
FN9 See Constance Ragan Salgado v. the United Kingdom of Great Britain and
Northern Ireland, CEDAW/C/37/D/11/2006, decision of 22 January 2007, para.
8.4
---------------------------------------------------------------------------------------------------------------------
10.10 The Committee further notes that the Optional Protocol entered into
force for France on 22 December 2000. At that time the authors' children,
except Ms. Delange's youngest child, had already reached the age of
majority, and only they could decide to change their family name. Although
the authors might have been victims of the violation of their right to
equality in the transmission of their family name to their children, that
right could be claimed by them only while the children were minors.
Accordingly, the Committee considers that the facts, including the period of
time during which the authors could have initiated proceedings to change
their children's family name, occurred prior to the entry into force of the
Optional Protocol. The Committee therefore concludes that the communication
with regard to Ms. Daufrene-Levrard, Ms. Campo-Trumel, Ms. Muzard-Fekkar,
Ms. Remy-Cremieu and Ms. Delange with regard to her eldest child is
inadmissible ratione temporis under article 4, paragraph 2 (e), of the
Optional Protocol.
10.11 In accordance with article 4, paragraph 1, of the Optional Protocol,
the Committee shall not consider a communication unless it has ascertained
that all available domestic remedies have been exhausted, unless the
application of such remedies is unreasonably prolonged or unlikely to bring
effective relief. With regard to Ms. Delange's claim relating to her
youngest child, the Committee has carefully considered, on the one hand, the
arguments of the State party to the effect that Ms. Delange did not exhaust
domestic remedies to obtain a change of name for her youngest child under
article 61-1 of the French Civil Code, which stipulates that every person
with a lawful interest can apply for a change of name, and on the other
hand, the author's argument to the effect that this procedure is
unreasonably prolonged and unlikely to bring effective relief. The Committee
notes that Ms. Delange has not made any attempt whatsoever to exhaust
domestic remedies. She has not initiated any procedure under domestic law to
change her youngest child's family name. Nor has she provided information to
the Committee as to whether her minor child consents to a change of family
name. Under article 61-1 of the Civil Code, children aged 13 and above have
to give their consent to a name change. The Committee notes the author's
reference to the case of Mustafa v. France to claim that the average time
needed for the completion of a procedure under article 61-1 of the Civil
Code is at least 10 years. The Committee also takes note of the author's
contention that the Garde des Sceaux has ruled in similar cases that the
interest a woman may have in taking her mother's family name does not amount
to a lawful interest but rather is based on emotional grounds. On the other
hand, while noting that the case law cited by the State party in support of
its contention that a wish to bear one's mother's family name can constitute
a lawful interest dates back to 1985 and 1986 and relates to applications
made by men to take their mother's family name, the Committee takes into
account all the information provided by the State party concerning
improvements in the duration of administrative procedures as well as the
decision of the Conseil d'État in 2002 upholding the right of a claimant to
obtain judgement by an administrative judge within a reasonable length of
time and a decision of the European Court of Human Rights in February 2004
on an effective remedy in an administrative jurisdiction in France. The
Committee especially takes note of all efforts undertaken to ensure the
timely functioning of administrative jurisdictions and especially of article
R 112-2 of the Code of Administrative Justice, which provides that anyone
who has a reason to complain about the excessive length of a procedure
before an administrative tribunal or an administrative appeals court may
refer the matter to the Permanent Inspection Chief of administrative
jurisdictions, who has the power to remedy the situation. The Committee also
notes that the Conseil d'État has put aside in several instances domestic
provisions considered to be in conflict with the Convention for the
Protection of Human Rights and Fundamental Freedoms and, accordingly, it
shares the view of the State party that Ms. Delange, as the parent of a
minor child, could still apply for a change of name for her youngest child
if the latter gives his/her consent. In the event that the Garde des Sceaux
and the Administrative Tribunal reject her application on the grounds that
there is no lawful interest, she could still appeal to the Conseil d'État.
10.12 In the light of the above, the Committee is of the view that, although
the procedure for a change of name under article 61-1 of the Civil Code can
be improved in its application and its interpretation, it cannot be said to
be unreasonably prolonged and/or unlikely to bring effective relief in the
case of Ms. Delange, who has not made the slightest effort to avail herself
of available domestic remedies. The Committee therefore finds the present
communication inadmissible in relation to Ms. Delange with regard to her
youngest child because of the non-exhaustion of domestic remedies.
10.13 The Committee therefore decides:
(a) That the communication is inadmissible for Ms. Dayras and Ms. Zeghouani
because they lack the quality of victim under article 2 of the Optional
Protocol;
(b) That the communication is inadmissible ratione temporis under article 4,
paragraph 2 (e), of the Optional Protocol with regard to Ms.
Daufrene-Levrard, Ms. Campo-Trumel, Ms. Muzard-Fekkar, Ms. Remy-Cremieu and
Ms. Delange with regard to her eldest child;
(c) That the communication is inadmissible for non-exhaustion of domestic
remedies under article 4, paragraph 1, of the Optional Protocol for Ms.
Delange in respect of her youngest child;
(d) That this decision shall be communicated to the State party and to the
authors.
* The following members of the Committee participated in the examination of
the present communication: Ms. Ferdous Ara Begum, Ms. Magalys Arocha
Dominguez, Ms. Violet Awori, Ms. Barbara Bailey, Ms. Meriem
Belmihoub-Zerdani, Mr. Niklas Bruun, Ms. Saisuree Chutikul, Mr. Cees
Flinterman, Ms. Naela Mohamed Gabr, Ms. Ruth Halperin-Kaddari, Ms. Yoko
Hayashi, Ms. Soledad Murillo de la Vega, Ms. Violeta Neubauer, Ms. Pramila
Patten, Ms. Silvia Pimentel, Ms. Victoria Popescu, Ms. Zohra Rasekh, Ms.
Dubravka Ŝimonoviæ, and Ms. Xiaoqiao Zou. Pursuant to rule 60 (1) (c) of the
Committee's rules of procedure, Ms. Nicole Ameline did not participate in
the examination of this communication, as she is a national of the State
party concerned.
The text of one individual opinion (dissenting), signed by Ms. Dubravka
Ŝimonoviæ, Ms. Saisuree Chutikul, Ms. Ruth Halperin-Kaddari, Ms. Yoko
Hayashi, Ms. Violeta Neubauer, Ms. Silvia Pimentel and Ms. Victoria Popescu,
is included in the present document
INDIVIDUAL OPINION BY COMMITTEE MEMBERS YOKO HAYASHI, DUBRAVKA ŠIMONOVIÆ,
RUTH HALPERIN-KADDARI, SILVIA PIMENTEL, VIOLETA NEUBAUER, SAISUREE CHUTIKUL
AND VICTORIA POPESCU (CONCURRING)
Although we agree with the conclusion that the communication is
inadmissible, we disagree with the majority of the Committee in relation to
the reasons for inadmissibility. In our opinion, the communication should
have been declared inadmissible under article 4, paragraph 1of the Optional
Protocol because all available domestic remedies have not been exhausted.
We have carefully considered all the arguments of the authors in support of
their claim, as well as the grounds raised by the State party in challenging
the admissibility of the communication. We have also considered the
additional observations of both the authors and the State party submitted in
the light of the Committee's interim decision taken at its forty-second
session (see paragraphs 7 to 9 in the above decision).
We have further taken note of the argument raised by the State party on the
reservation and on the doctrine of lex specialis.
It is our understanding that the domestic legislation in France that the
authors are challenging in the present communication is as follows;
(1) The customary law which was effective at the authors' birth provided
that a child born in wedlock was given the family name of his/her mother's
husband.
(2) The Act of 4 March 2002 on family names, as amended by the Act of 18
June 2003, which entered into force on 1 January 2005 (hereinafter "the
amended Act of 2003") enabled parents to pass on either parent's family name
to their children, or a hyphenated name using the family names of both
parents. However, if the spouses disagree, the father has the veto right so
that the father's family name will be transmitted to the children.
Furthermore, the amended Act of 2003 does not have retroactive effect,
therefore does not apply for persons who are born before 1 January 2005.
(3) The Civil Code contains the following provisions;
Article 61 "A person who establishes a lawful interest may apply for a
change of his name. The application for a change of name may be made for the
purpose of preventing the extinguishment of the name borne by an ancestor or
a collateral of the applicant up to the fourth degree."
Article 61-1 "A person concerned may challenge before the Conseil d'Etat the
decree establishing a change of name within two months after its publication
in the Official Journal."
We are of the view, by carefully examining the substance of the arguments of
both parties, that the authors' core assertion is that the State party did
not take appropriate measures to eliminate discrimination against women in
all matters relating to marriage and family relations. We, therefore,
construe that the above-mentioned assertion is made pursuant to article 16,
paragraph 1, of the Convention. Article 16, paragraph 1, provides that
States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family
relations and in particular shall ensure, on a basis of equality of men and
women, the certain rights provided in subparagraphs (a) to (h) set out
therein. We note that these subparagraphs are not exhaustive but present
examples of matters subject to the chapeau of article 16, paragraph 1.
Further, given the clarification from the authors on the Committee's interim
decision, we note that the authors' assertion includes the argument based on
articles 2 and 5 of the Convention which provide for the general principle
of equality between women and men.
It is our understanding that the authors' claims can be classified in the
following three (3) categories in accordance with their personal status;
(1) Ms. Dayras and Ms. Zeghouani, both of whom are unmarried women without
any children, wish to take their mothers' names as their family names. We
note that there is a difference of understanding between the Committee's
majority opinion and us regarding Ms. Zeghouani's intention in the present
communication. It is our understanding that Ms. Zehgouani wishes to take her
mother's name as her family name, though the Committee's majority
interpretation differs from ours.
(2) Ms. Muzard-Fekkar and Ms. Daufrene-Levrard, both of whom are married and
have children, wish to transmit their names to their children and to take
their mother's names as their family names.
(3) Ms. Campo-Trumel, Ms. Delange and Ms. Remy-Cremieu, all of whom are
married and have children, wish to transmit their names to their children(
but are not interested in taking their mothers' names as their names).
We note that the first ground on which the State party is challenging the
admissibility of the communication is on its incompatibility with article
16, paragraph 1 (g) of the Convention in the light of the reservation it has
entered to that article. However, we are of the view that article 16,
paragraph 1 (g) of the Convention is irrelevant in the circumstances of the
present communication for those four (4) authors whose claims are aimed to
take their mothers' names, as what is at stake is the equality in marriage
and family relations provided in article 16, paragraph 1 in conjunction with
articles 2 and 5. These four (4) authors do not focus on article 16,
paragraph 1 (g) specifically. We agree with the State party that article 16,
paragraph 1 (g) which provides "the same personal rights as husband and
wife, including the right to choose a family name, a profession and an
occupation", aims to enable a married woman or a woman living in a
husband-wife relationship to choose her family name. On the other hand, this
provision does not provide for the right to change one's family name given
upon one's birth. Nor is it clear whether such provision covers a woman's
right to pass on her family name to her child. Accordingly, we are of the
opinion that article 16, paragraph 1 (g) does not apply to the four (4)
authors, namely, Ms.Dayras, Ms.Zeghouani, Ms.Muzard-Fekkar and
Ms.Daufrene-Levrard.
As the examination of the compatibility of reservations with the Convention
is only necessary in case that the Committee considers the applicability of
the article in relation to which a reservation has been entered, we do not
see it necessary to examine the validity or effect of the reservation in
this case. In this regard, we do not agree with the approach of the
Committee as it handles the present communication in the light of article
16, paragraph 1 (g) of the Convention while making no assessment of the
reservation to the said provision.
We further note the argument of lex specialis submitted by the State party.
This is the doctrine that the law governing a specific subject (lex
specialis) is not overridden by a law which only governs general matters (lex
generalis). We are of the view that this doctrine is irrelevant in the
present communication because one cannot see such a special -and - general
relation between article 16, paragraph 1 and article 16, paragraph 1 (g) of
the Convention. In our view, as explained above, the claim of the authors to
take their mothers' names is not within the scope of the latter; therefore,
these two provisions are not duplicative but may constitute an independent
ground of claim.
We note that the State party challenges the admissibility of the
communication on the grounds that Ms. Dayras and Ms. Zeghouani are not
victims under article 2 of the Optional Protocol which provides that
communications may be submitted by individuals under the jurisdiction of a
State party "claiming to be victims of a violation of any of the rights set
forth in the Convention by that State Party".
We recognize that Ms. Dayras and Ms. Zeghouani are neither married nor do
they live in husband-and-wife relationships, nor do they have any children
to whom to pass on their family names. However, we note the fact that what
Ms. Dayras and Ms. Zeghouani claim is not the right to transmit their names
to their children (as it is apparent that they do not have any children),
but they complain that they cannot change their family names from the
fathers' names to their mothers' names and that bearing the fathers' names
against their will constitutes sex-based discrimination.
We share the view of the authors that the customary law which was in force
at the birth of authors and codified by law No. 2002-304 of 4 March 2002, as
amended in 2003, is discriminatory against women, and that the authors have
suffered sex-based discrimination by bearing their fathers' names, and that
the State party has not taken appropriate measures because the amended law
of 2003 does not have retroactive effect to rectify past violations.
We, in particular, express our disagreement with the State party that the
mother's name right needs to be reconciled with the children's right to be
registered immediately after their birth to secure the stability in respect
of their civil status upon birth. In our opinion, no matter how important it
is to guarantee the children's right to be registered, the principle of
gender equality must have the same weight and there is no reason why only
mothers, not fathers, must reconcile with the right of children.
Although the authors are childless, they are adversely affected by the
French legislation currently in force on family names and on the name
change, because they suffer the discrimination by bearing their father's
name which was automatically given to them pursuant to the sexist law in
force at the time. The fact that such discrimination equally affected all
children irrespective of their sex does not change the fact that the authors
acquired a family name under a rule which was discriminatory, as it applied
only against women's last names, thus amounting to a form of discrimination
against women.
We paid due consideration to the State party's argument that the authors can
submit an application for a name change pursuant to article 61 of the Civil
Code; however, we interpret that such provision only allows a person who
establishes a lawful interest to change his/her name and that such
application may be made for the purpose of preventing the extinguishment of
the family name. We are dubious about the objective of such provision, that
is, the purpose of provision of the Civil Code quoted above is incompatible
with gender equality, because the ground for permitting a name change is to
prevent the extinguishment of the family name, but is not to maintain a
mother's family name. In this connection, we reiterate the Committee's
concerns and recommendations following the consideration of the State
party's report in January 2008 in which it recommended that the State party
amend its legislation on family names in order to conform fully to the
Convention (see CEDAW/C/FRA/CO/6, para. 35).
With regard to the test of victim requirement, we are of the view that the
victim status depends on whether the authors have been directly and
personally affected by the violation alleged. An author may claim to be a
victim only if she/he is personally affected by the act or omission of the
state parties at issue, and no individual may in
the abstract by way of an actio popularis challenge a law or practice
claimed to be contrary to the Convention (see decision of the Human Rights
Committee of 26 July 1004 in the case of Poomgaham v. Mauritius).
We are of the view that the authors who claim that bearing their fathers'
names is a violation of the rights set forth in the Convention are directly
and personally affected by the alleged violation and that their argument is
not an actio popularis. Therefore, the authors who wish to take their
mother's family name , namely Ms. Dayras, Ms.Zeghouani, Ms.Muzard-Fekkar and
Ms. Daufrene-Levrard, are victims within the meaning of article 2 of the
Optional Protocol regardless of their having children or not.
We, however, note that the above four (4) authors have not exhausted
domestic remedies in accordance with article 4, paragraph 1 of the Optional
Protocol. Although we are concerned about the effectiveness of the relief
provided by the State party regarding the name change as we stated earlier,
we still maintain the view that the authors at least must have attempted
filing or appealing in the competent domestic court. We therefore declare
that the communication of these four (4) authors inadmissible in relation to
their allegations to take their mothers' family names.
We are of the view that the authors who have children and wish to transmit
their names to their children, namely, Ms.Campo-Trumel, Ms.Delange,
Ms.Muzard-Fekkar, Ms.Remy-Cremieu and Ms. Daufrene-Levrard are, too, in
principle, victims within the meaning of article 2 of the Optional Protocol
on the grounds that the French legislation prevents them from transmitting
their family names to their children. We share their concerns that their
children did not benefit from the amended Act of 2003 because it does not
have retroactive effect.
On the other hand, we agree with the State party's argument regarding the
above five (5) authors that the discrimination against them ended when their
children reached the age of majority because the primary rights-holders in
relation to changing or acquiring the family name are the children
thereafter.
In this regard, we note that the Optional Protocol entered into force for
France on 9 June 2000, at that time all the children of these five (5)
authors except the youngest child of Ms. Delange had reached the age of
majority, thus the primary rights-holders in relation to changing or
acquiring the name are not the authors. The Committee came to a similar
conclusion in communication No.11/2006 (see Salgado v. UK) when it decided
that the alleged violation that the author could not transmit her
nationality to her son ended when the son reached the age of majority.
In accordance with article 4, paragraph 1, of the Optional Protocol, the
Committee shall not consider a communication unless it has ascertained that
all available domestic remedies have been exhausted, unless the application
of such remedies is unreasonably prolonged or unlikely to bring effective
relief. With regard to these criteria, we note that neither the authors nor
their children have attempted to use the procedure under article 61 of the
French Civil Code, which stipulates that every person with a lawful interest
can apply for a change of name. We take note of the authors' allegation that
this procedure is unreasonably prolonged and unlikely to bring effective
relief. We could conclude that this is likely to be the case, if we connect
the facts presented by the different authors in communication No. 12/2007
with respect to the same State party regarding the name right of women,
however, we have not been sufficiently convinced to adopt in this case the
same decision as in communication No. 12/2007. Without any attempt of the
authors or their children as potential right-holders to apply for such
remedies, we cannot determine at this point that the domestic remedies are
unreasonably prolonged and/or unlikely to bring effective relief. We
therefore find that for the above five (5) authors with children, too, the
present communication inadmissible because of the non-exhaustion of domestic
remedies.
(signed) Yoko Hayashi
(signed) Dubravka Simonovic
(signed) Ruth Halperin-Kaddari
(signed) Silvia Pimentel
(signed) Violeta Neubauer
(signed) Saisuree Chutikul
(signed) Victoria Popescu
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