Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Chapter C.12: CIEC/ICCS (International Commission on Civil Status)
I. Foundation and legal nature
1. Historical background
Already during the interbellum (inter-war years) the urgent need arose for international cooperation in civil-status matters. As civil-status registrars were increasingly confronted with international cases an international civil-status association was founded in 1926, composed of individual civil-status registrars from →Belgium, →France, →Germany, →Luxembourg, the →Netherlands and →Switzerland, and also as of 1929 from →Italy. Although this association did not survive the Second World War, a group of former members were convinced of the necessity of a new initiative, as it was felt that international cooperation would only be successful if organized not between individual civil-status registrars but between states. On 30 April 1948 the Commission Internationale de l’Etat Civil (CIEC) (International Commission on Civil Status – ICCS) was founded with the participation of the governments of →Belgium, →France, →Luxembourg, the →Netherlands and →Switzerland. These five governments recognized the ICCS by an exchange of letters. On 25 September 1950 plenipotentiaries of the five Member States signed the Bern Protocol on the International Commission on Civil Status concerning its documentary functions and its finances (available at <www.ciec1.org>).
With a view to admitting new Member States, an Additional Protocol was signed in Luxembourg on 25 September 1952 detailing the procedure for accession (available at <www.ciec1.org>). The Rules of the ICCS specify that membership is open to any state that is party either to the ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221) or to the ICCPR (International Covenant on Civil and Political Rights of 16 December 1966, 999 UNTS 171; 1057 UNTS 407).
2. Legal nature
The ICCS is an intergovernmental organization composed of sovereign states. The 1948 exchange of letters provided the ICCS with an international legal personality. The ICCS is p. 331subject to international law. The organization has no supranational powers.
II. Function and competences
Article 1 Bern Protocol places strong emphasis on the compilation and updating of documentation on legislation and case-law relating to the law of persons and →nationality. But the ICCS’s Rules have broadened the scope of its objectives and activities. According to art 1 of the Rules, the aim of the ICCS is to facilitate international cooperation in civil-status matters and to further the exchange of information between civil-status registrars. To this end, it carries out any studies and work, in particular by drawing up recommendations or draft conventions, aimed at harmonizing the provisions in force in the Member States on matters relating to the status and capacity (→Capacity and emancipation) of persons, to the family and to nationality and at improving the operation of civil-status departments in those states. The ICCS also compiles and revises documentation on Member State legislation and case-law on relevant subject matters, and on the basis of that documentation provides information to Member State governments, diplomatic missions and consulates.
In its core subject matters, the ICCS coordinates its activities with those of other international organizations and furthers relations with organizations dealing with matters pertaining to civil-status purposes. The ICCS may also enter into collaboration with third states in areas within its competence with a view to furthering cooperation between them and the Member States.
III. Organization and working methods
1. Legal sources
The ICCS organization and structure is laid down in the Bern and Luxembourg Protocols as well as in its Rules, which were last reviewed on 19 September 2001 and entered into force on 1 January 2002. Financial Regulations of 19 September 2001 prescribe rules on the budget and the accounts.
2. Member States
At present the ICCS numbers ten Member States: →Belgium, →France, →Greece, →Luxembourg, →Mexico, the →Netherlands, →Poland, →Spain, →Switzerland and →Turkey. Several countries have observer status: Cyprus, the Holy See, →Lithuania, Moldova, →Romania, Russia (→Russian Federation), →Slovenia and →Sweden. Some countries, such as →Argentina and →Peru, have guest status. The following states have withdrawn from the ICCS: →Austria, →Croatia, →Germany, →Hungary, →Italy, →Portugal and the →United Kingdom. By exchange of letters, cooperation agreements were concluded with the Council of Europe, the European Commission, the Hague Conference on Private International Law and the United Nations High Commissioner for Refugees. They are invited to participate in the General Assembly.
Each Member State has to establish on its territory a national section responsible in particular for representing the Member State within the ICCS, promoting the aims of the ICCS in its territory, notably with the national authorities, proposing new activities and ensuring liaison with the other sections through, if appropriate, the intermediary of the Secretary General. The national sections have to prepare and transmit to the Secretary General an annual report on their activities and on legislative and case-law developments in their state (art 6 Rules).
The ICCS has its seat in Strasbourg (France), where the Secretariat General is established (3, Place Arnold, F 67000 Strasbourg). A seat agreement between the French Republic and the ICCS of 13 November 2000 recognizes the legal personality of the ICCS and guarantees, with certain exceptions, immunities and privileges to the organization and the Secretary General.
The sole official language of the ICCS is French, but English is a working language. Most documents are published in both languages, while some are also published in other languages.
The ICCS organs are the General Assembly, the Bureau, the President and the Secretary General (art 13 Rules).
a) General Assembly
p. 332The first organ of the ICCS is its General Assembly, composed of members of the national sections established in each Member State (art 10 Rules). The members of the national sections are nominated by their governments and the national sections are mainly composed of officials from the ministries of foreign affairs, justice and the interior, as well as members of the judiciary and academia and civil-status registrars.
In principle, the General Assembly meets twice a year. Each Member State has one vote (art 7(1) Rules).
The General Assembly largely decides on any proposal by the Bureau on admission of a new Member State, and also adopts conventions and recommendations together with their explanatory reports (arts 11 and 27 Rules).
The Bureau of the ICCS is composed of the Presidents of the national sections, assisted if need be by one or two other members of their section (art 15 Rules). Each Member State has one vote.
The Bureau meets in principle twice a year, and its functions are to implement the decisions of the General Assembly, elect the President, the Vice-President, the Secretary General and the Deputy Secretary General, submit a proposal to the General Assembly on the admission of new Member States, grant observer status, adopt the budget and approve the accounts (art 16 Rules and art 3 Financial Regulations).
The President is elected by the Bureau for a term of two years from among its members or from among the members of the national sections (arts 19 and 20 Rules). The main functions of the President are to preside over the General Assembly and the Bureau (art 21 Rules).
d) Secretary General
The Secretary General is elected by the Bureau from among the members of the national sections, or exceptionally from among persons qualified in the matters falling within the competence of the Commission. The Secretary General is elected for a renewable term of three years, and is assisted by a Deputy Secretary General and an administrative staff (arts 23 and 24 Rules).
The Secretary General implements the decisions taken by the organs of the ICCS, convenes and participates in an advisory capacity in the General Assembly and the Bureau and drafts their records, ensures the liaison between the national sections and other institutions, organizes the Secretariat General, submits to the General Assembly an annual report on the developments in the Member States in the field of family law and fulfils their obligations under the Financial Regulations (art 25 Rules and arts 1 to 4 Financial Regulations).
6. Working methods
The procedure for the drafting of a convention is laid down in art 27 of the Rules. Proposals for a convention can emanate from a national section or the Bureau. In the former case they must be submitted to the Bureau. A proposal emanating from a national section must be addressed to the Secretary General, who will transmit it to the other sections. In order to be included in the agenda of the Bureau, the proposal, together with an explanatory report, must reach the Secretary General at least two months before the date of the meeting.
The Bureau transmits to the General Assembly the proposals which it has retained. The General Assembly or the Bureau may establish a working party for the preparation of a convention (art 30 Rules).
The text of a convention is final once adopted by the General Assembly. It can then be the object only of corrections, effected by the Secretary General, of purely clerical or grammatical errors. However, if a national section deems it indispensable to modify the text, it must so notify the Secretary General within the three months following the General Assembly that adopted the text. The notification is effected by submitting (to the Secretary General) a detailed explanatory report, which must include the modified text. The same power of initiative is vested in the Secretary General. The proposed modification is submitted to a new General Assembly, which will adopt the final text of the convention on a second reading.
The adopted convention has to be transmitted to the Swiss Federal Council, which is responsible for duly notifying the Member States through diplomatic channels, with an indication that it is open to their signature.
b) p. 333Recommendations
The provisions on the drafting of a convention are also applicable to the drafting of recommendations. The text adopted by the General Assembly will be communicated to the Member States through the good offices of the Secretary General (art 28 Rules).
IV. Contribution to private international law
1. Circulation of civil-status documents
The most important category of ICCS conventions concerns the circulation of civil-status documents. As long as family law is not harmonized or unified, it is of immense importance for the citizen that their civil-status certificates are widely accepted without too many formalities in states other than their state of origin, for example in the state of residence. The ICCS conventions solve the recognition problem by prescribing recognition free of legalization formalities or even an apostille (→Legalization of public documents).
a) Conventions nos 16 and 34
The most important ICCS convention achieving this goal of recognition without formalities is Convention No 16 of 8 September 1976, on the issue of multilingual extracts from civil-status records concerning births, →marriages or deaths. This Convention has now been ratified or acceded to by the following 24 states: Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Cabo Verde Croatia, Estonia, France, Germany, Italy, Lithuania, Luxembourg, Moldova, Montenegro, the Netherlands, Poland, Portugal, Romania, Serbia, Slovenia, Spain, Switzerland, The Former Yugoslavian Republic of Macedonia and Turkey. The issue of these multilingual abstracts is obligatory if a citizen so requests, with no requirement upon them to prove a particular need.
However, the abolition of legalization (→Legalization of public documents) and comparable formalities does not entirely solve the problem. The authorities of the state where the extract is used must be able to understand its content. This requirement is met, as the title of Convention No 16 states, through uniform multilingual models with pre-printed translations and a coding system, which render it unnecessary thereby obviating the need to translate the individual document.
Societal changes and scientific progress have profoundly influenced the law of persons as well as family law. Family law, more than any other field of private law, is subject to dynamic changes. The extension of marriage to same-sex couples and the introduction of →registered partnerships necessitated a revision of Convention No 16. The need for a mechanism to combat fraud was an additional ground. The Convention has also been extended to civil-status records concerning the acknowledgement of children. These developments have resulted in Convention No 34, adopted by the General Assembly on 26 September 2013 and open for signature in March 2014.
b) Convention No 17
Convention No 17 of 15 September 1977 on the exemption from legalization of certain records and documents is in force between Austria, France, Greece, Italy, Luxembourg, the Netherlands, Poland, Portugal, Spain and Turkey. Each contracting state has to accept without legalization or equivalent formality the following documents issued by another contracting state: (i) records and documents relating to the civil status, capacity (→Capacity and emancipation) or family situation of natural persons or their →nationality, domicile or residence (→Domicile, habitual residence and establishment), regardless of their intended use, (ii) all other records or documents if they are produced with a view to the celebration of a marriage or the establishment of a civil-status record (art 2). If no such record or document has been transmitted through diplomatic channels or another official channel, then, in a case of serious doubt as to the authenticity of the signature, the identity of the seal or stamp or the capacity of the signatory, the authority to which it is produced may have it verified by the issuing authority (art 3). The request for verification may be made by means of a multilingual form, a model of which is appended to the Convention. This form must be sent in duplicate directly to the issuing authority, accompanied by the record or document requiring verification (art 4).
c) Convention No 33
Technological evolution and computerization have substantially affected the establishment and maintenance of civil-status registers. Due to globalization and migration the international circulation of civil-status documents has gained considerable importance. In application of Convention No 16, for example, Poland issues 300,000 multilingual extracts per annum. To p. 334process such a quantity and combat fraud, circulation of paper documents has to be replaced by electronic transmission. The ICCS Platform for the international communication of civil-status data by electronic means is a centralized system designed for interoperability. Countries connected to the system may use a dynamic multilingual interface or integrate the necessary functions within their own local civil-status system or application. The system was designed with several objectives in mind, principally simplicity, efficiency and security, as well as minimal costs for access, use and maintenance.
To ensure the integrity of the content and the authenticity of the signatory and to guarantee the security and confidentiality of messages, the transmission of data via the Platform requires the use of an advanced electronic signature, so that all the data sent via the Platform in application of this Convention are encrypted, given a digital signature and validated at the end of the sending process. The authentication of authorized users is based on a certificate issued by an approved certification authority in charge of authenticating and validating or repudiating the signature. The certificate and certification authority have to conform to the conditions set out in the applicable texts, in particular in Directive 1999/93/EC of the European Parliament and the Council of 13 December 1999 on a Community framework for electronic signatures ( OJ L 13/12).
The procedure for sending and receiving messages is similar to that for sending and receiving emails. Users must log into the Platform to send and access messages. If the receiver has not downloaded a message sent to them within 20 days, the sender is automatically notified by the Platform that the message sent has not been downloaded by the receiver and has been destroyed.
At the option of the individual contracting state, data received may be inserted into the national system database in order to update it directly. States that already have a computerized system may develop it in such a way that the document to be sent in Extensible Markup Language (XML) can be generated from data in their own system, signed locally, and then encrypted using an electronic signature. In a similar way, an XML document that has been signed and encrypted using a system available on the ICCS Platform can be decrypted on receipt, compiled using a local style sheet processor, and then presented in a defined format and in one of the languages of the receiving state, dependent on definition of the corresponding Extensible Stylesheet Language Transformation (XSLT) sheet as well as the data concerning the recipient’s language and desired delivery format.
Convention No 33 of 19 September 2012 on the use of the International Commission on Civil Status Platform for the international communication of civil-status data by electronic means, signed by Belgium, France, Luxembourg and Poland, provides the legal framework for this Platform and guarantees data protection. This electronic instrument will be a highly effective tool to facilitate the work of the civil-status registrars and to combat fraud. But above all, this Platform will serve society and will facilitate the international life of citizens of the contracting states.
2. Cooperation between authorities
a) Conventions nos 3 and 8
Another category of convention concerns forms of cooperation between authorities. Some conventions focus on the exchange of information. Examples are Convention No 3 of 4 September 1958 on the international exchange of information relating to civil status, in force between Austria, Belgium, France, Germany, Italy, Luxembourg, the Netherlands, Poland, Portugal, Spain and Turkey, its Protocol No 23 of 6 September 1989, in force between Austria, Belgium, France, Germany, Italy, the Netherlands and Spain and Convention No 26 of 12 September 1997 on the international exchange of information relating to civil status, in force between France and Turkey. These Conventions prescribe that, when drafting or transcribing a civil-status document concerning certain events such as marriage, death or acknowledgement of a child, a civil-status registrar has to inform the registrar of the place of birth. Another example is Convention no 8 of 10 September 1964 on the exchange of information relating to acquisition of nationality, in force between →Austria, →Belgium, →Greece, →Italy, →Luxembourg, the →Netherlands and →Portugal, requiring notification to the state of origin of acquisitions of nationality resulting from naturalization, option or reintegration.
b) Convention No 9
Some conventions go further and contain a delegation of power. An example is Convention No p. 3359 of 10 September 1964 on decisions concerning the rectification of civil-status records, in force between France, Germany, Luxembourg, the Netherlands, Spain, Switzerland and Turkey. The authority of a contracting state which is competent to decide on the rectification of a civil-status record drawn up in that state and containing an error, is also competent to rectify the same error concerning the same person or their descendants in a record drawn up subsequently in another contracting state. This decision is enforceable without any formality in the other state (art 3(2)).
3. Harmonization of jurisdiction and choice-of-law rules
a) Convention No 4
Convention No 4 of 4 September 1958 on changes of surnames and forenames, in force between Austria, France, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain and Turkey, concerns changes of surnames or forenames authorized by the competent public authority, but not changes resulting from a modification to the status of a person or the rectification of an error (art 1). Each contracting state undertakes not to authorize changes of surnames or forenames for nationals of another contracting state, unless they are also nationals of the first-mentioned state (art 2). Definitive decisions taken in a contracting state which authorize a change of surname or forenames either for its nationals or for stateless persons or refugees within the meaning of the Refugee Convention (Geneva Convention of 22 April 1951 relating to the Status of Refugees, 189 UNTS 137), who are domiciled or failing that resident in its territory, are enforceable ipso iure in the territory of each contracting state subject to their respective public policy regimes (art 3)
b) Conventions nos 19, 21 and 31
The principal convention in the field of the law of names is Convention No 19 of 5 September 1980 on the law applicable to surnames and forenames, in force between France, Italy, Portugal and Spain. The name of a person is to be determined by the law of the state of which they are a national (art 1, para 1). The law of the state of nationality includes not only its substantive law but also its choice-of-law rules. The law of the state of nationality therefore determines the →connecting factor: nationality, domicile or residence (→Domicile, habitual residence and establishment). But this law can also apply the →lex fori. This means additionally that →renvoi is left to the law of the Member States. Spanish and Portuguese law exclude the renvoi, the latter with exceptions (art 12(2) Spanish Civil Code (Código Civil of 24 July 1889, Geceta de Madrid No 206, 25 July 1889); art 19 Portuguese Civil Code (Código Civil of 25 November 1966, Decreto Lei No 47–344)). Dutch and Italian law apply the renvoi (art 10:19 Dutch Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992, <wetten.overheid.nl>); art 13 Italian Private International Law Act (Riforma del Sistema italiano di diritto internazionale private, Act No 218 of 31 May 1995 in Gazz.Uff, Supplemento Ordinario No 128 of 3 June l995, as amended)). This rule has an autonomous character. The name is independent of the choice-of-law rules governing the underlying family relationship, such as marriage or parentage. This rule is also of universal application and applies even if the designated law is that of a non-contracting state (art 2). Preliminary questions are dealt with by the choice-of-law rules of the state whose law is applicable to the name (art 1(1)). In case of a change of nationality the law of the state of the new nationality applies (art 1(2)).
In view of the limited number of ratifications of Convention No 19, the ICCS tried another method by adopting Convention No 31 of 16 September 2005 on the recognition of names. This Convention provides that where a declaration is made by the spouses concerning the surname they will bear during the marriage, or made by one spouse concerning the surname he or she will bear during the marriage, then that declaration will be recognized in the other contracting states if made in a contracting state where on the day of the declaration either one spouse is a national or both spouses are habitually resident (art 1). The surname attributed, in a contracting state where a child possessing two or more nationalities was born will be recognized in the other contracting states provided that the state is one of which the child is a national (art 4). The scope of the Convention is very limited. Concerning the name of the child, only conflicts of nationality but not conflicts between choice-of-law rules are regulated. This means, for example, that the Convention cannot resolve the problems arising from the Grunkin and Paul case (C-353/06 Stefan Grunkin and Dorothee Regina Paul  ECR I-7639), since p. 336in that case, where the child had only German nationality, a conflict between Danish and German choice-of-law rules had arisen. The Convention was not ratified.
The problem of conflicting choice-of-law rules is not solved but rather eased by Convention No 21 of 8 September 1982 on the issue of a certificate of differing surnames. This Convention, in force between France, Italy, the Netherlands and Spain, offers a pragmatic solution by creating a certificate of differing surnames which enables persons having several surnames as a consequence of the application of differing legislation to prove their identity.
c) Convention No 14
Convention No 14 on the recording of surnames and forenames in civil-status registers, in force between →Austria, →Germany, →Greece, →Italy, →Luxembourg, the →Netherlands and →Turkey, guarantees a uniform spelling. Where a record is to be made in a civil-status register by a contracting state authority, and where for that purpose a copy of or extract from a civil-status record or some other document is produced that shows the surnames and forenames in the same characters as those used in the language in which the record is to be made, then those surnames and forenames will be reproduced literally without alteration or translation. Any diacritic marks forming part of such surnames and forenames will also be reproduced, even if such marks do not exist in the language in which the record is to be made (art 2). Where a record is to be made in a civil-status register by a contracting state authority and where for that purpose a copy of or extract from a civil-status record or some other document is produced that shows the surnames and forenames in characters other than those used in the language in which the record is to be made, then those surnames and forenames will be reproduced as far as possible by transliteration, without being translated. If there are standards recommended by the International Organization for Standardization (ISO), they will be applied (art 3). In the event of a discrepancy in the spelling of surnames or forenames between two or more of the documents produced, the person concerned will be designated according to the civil-status records or documents establishing their identity that were drawn up in the state of their nationality at the time when the documents were drawn up (art 4 para 1).
It was this Convention that gave rise to the Konstantinidis case. Germany refused to recognize the Greek passport as another document in the sense of art 3 of the Convention, although that article expressly stated that not only civil-status certificates but also other documents had to be accepted. This interpretation was confirmed by a Resolution of 11 September 1992 adopted by the General Assembly, stating that the phrase ‘or some other document that shows the surnames and forenames’, contained in art 2(1), covers any public document even if it does not emanate from a civil-status registrar, such as the passport of the person concerned. Instead the name was transliterated with an outcome which was found by the European Court of Justice to constitute an infringement of the right of establishment (Case C-168/91 Christos Konstantinidis v Stadt Altensteig  ECR I-1191).
4. Future developments
For over 65 years, the ICCS has contributed to the unification and harmonization of the law on civil status. Some of its conventions, such as Convention No 16, were a considerable success. Others were less successful, but some of them have influenced legislative developments in the Member States even without ratification. All these conventions have facilitated the everyday life of the European citizen. During recent years the number of ratifications has declined. But this tendency is not specific to the ICCS. Also in other international organizations like, for example, the Council of Europe there is a tendency to use more soft law and to promote recommendations.
On 24 April 2013 the European Commission published its Proposal for a Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU and amending Regulation (EU) No 1024/2012 of 24 April 2013 (COM(2013) 228 final). This Proposal is a result of the Stockholm Programme on ‘An open and secure Europe serving and protecting citizens’ ( OJ C 115/1) and a key initiative in the European Year of Citizens 2013 (Decision No 1093/2012/EU of the European Parliament and of the Council of 21 November 2012 on the European Year of Citizens (2013),  OJ L 325/1). This Programme focuses on building a citizens’ Europe and stresses the importance of making Union citizenship more effective by p. 337putting the citizens at the heart of EU policies in the area of justice. The Proposal contains rules which exempt public documents, including civil-status documents, from legalization (→Legalization of public documents) or similar formalities such as an apostille (art 4). In order to avoid translation costs, European Union multilingual standard forms concerning birth, death, marriage and registered partnership are established (art 11). These forms are strongly inspired by the models from ICCS Convention No 16 and are to a certain extent even a copy of them. While this marks a success for the ICCS in that its work is recognized, the Proposal was also a threat to the future of the ICCS. Between the EU Member States, the Regulation would have taken precedence over international conventions concluded by them to the extent such conventions concern matters governed by the Regulation (art 18(2)). This means that the Regulation would have had precedence over the ICCS conventions concerning the same matters. In particular Convention No 16 would have been affected. The most successful ICCS convention would not be applicable between EU Member States but only between EU Member States and third states and between third states. Finally, the Regulation (EU) 2016/1191 of 6 July 2016 applicable as from 16 February 2019 and based on a compromise between the European Parliament and the Council safeguards the ICCS Conventions. Nevertheless, as a consequence of concurring instruments a certain reorientation of the ICCS will be necessary with more focus on recommendations, documentation and exchange of information.
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