Résumé : La Cour Suprême grecque a rendu un arrêt intéressant concernant l’effet des articles 8, 14 CEDH et 1 du Protocole Additionnel CEDH sur la reconnaissance d’un jugement d’adoption étranger. Dans cette affaire était en cause la reconnaissance en Grèce d’un jugement italien par lequel avait été prononcée l’adoption d’un Albanais par un individu de double nationalité (grecque et italienne). Les tribunaux grecs de première instance ont rejeté la reconnaissance de l’adoption en Grèce conformément à une règle de droit national qui impose l’application de la loi désignée par la règle de conflit de lois grecque. Cette exigence est une précondition à la reconnaissance d’un jugement étranger rendu dans une procédure non contentieuse. La Cour Suprême a d’abord jugé que l’article 8 CEDH ne remplaçait pas les règles grecques de droit international privé. Toutefois, selon la Cour Suprême, alors que l’article précité n’introduit pas une telle obligation générale de reconnaissance, les tribunaux de première instance sont obligés d’examiner les circonstances du cas concret prépondérantes afin de déterminer s’il y a, en l’espèce, une violation des articles CEDH mentionnés ci-dessus. La méthode de reconnaissance indiquée par la Cour ainsi que son interaction avec la méthode classique de la reconnaissance des jugements étrangers est une question qui reste ouverte.

The Greek Supreme Court (Areios Pagos) has issued an interesting judgment (available here: Greek Supreme Court judgment n. 9_2016_ Greek) on the impact of Article 8 ECHR on the recognition of foreign family law judgments and/or family law status acquired abroad.

The case in a nutshell

The issue brought before the Greek Supreme Court concerned the recognition in Greece of an Italian adoption judgment. The adoptee was an Albanese adult and the adopter was of dual (Greek-Italian) nationality, habitually resident in Rome, Italy. The adoption was effected in 2002 by virtue of an irrevocable judgment of a civil court in Rome. The adopter died a few years later, leaving a considerable estate, both in Greece and in Italy. After his death, a Greek non-relative of the deceased and habitually resident in Greece presented a will dated 2000 (i.e. prior to the adoption), by virtue of which the deceased had named her as the heir of his assets in Greece. Consequently, the adopted filed an action against the latter, whereby he claimed, among others, that he was entitled to all assets or at least the reserved part of the estate, under his capacity as the son of the deceased.

Both the Athens Multimember Court of First Instance, as well as the Athens Court of Appeals rejected the action of the adopted, on the grounds that said action lacked locus standi. Indeed, because the Italian judgment should not be recognized in Greece, the claimant cannot be considered as the son of the deceased. To this effect, the lower Greek courts applied Article 780 of the Greek Code of Civil Procedure, a procedural rule on recognition of foreign judgments in non-contentious proceedings. Pursuant to said Article, a foreign judgment issued in non-contentious proceedings produces in Greece the effects attributed to it by the law of the State of origin, provided that: (1) the judgment applied the substantive applicable law that should be applied pursuant to Greek law and the issuing court had jurisdiction pursuant to the law of the State of which it applied the substantive law; and (2) the judgment is not contrary to bonos moros or public policy. Now, by applying Greek private international law, the lower courts concluded that, in order for the Italian adoption judgment to be recognized in Greece, the Italian courts should have applied Greek law to the issue of the adoption. However, the Italian judgment ordered the adoption of an adult pursuant to Italian law, while Greek law does not in principle allow such adoptions (unless the adoptee is the child of the spouse of the adopter, which was not the case). Hence, the judgment should not be recognized in Greece. The Court of Appeals added that the Greek private international law rules are public policy rules.

The adopted filed an application for cassation before the Greek Supreme Court, invoking, among others, that the provisions of Articles 8, 14 and 1 of the ECHR had been erroneously interpreted and applied by the lower courts in the context of the application of the relevant Greek rules (i.e. Articles 1579, 23 and 31 para.1 Greek Civil Code and Article 780 Greek Code of Civil Procedure). The issue was further referred to the Plenary Session of the Greek Supreme Court, as an issue of general interest.

Supreme Court imposes lower courts to perform the ECHR test

The Supreme Court started by briefly stating the content of Greek private international law, as well as substantive law on adoption. As per the applicable Greek conflict-of-laws rules, if one of the involved parties in an adoption effected abroad is a Greek national, then such adoption is governed by Greek law, even if the Greek party involved has a dual nationality. On the other hand, Greek substantive law does not in principle allow adoption of adults, unless the adoptee is the child of the spouse’s adopter.

The Court went on to explain that the application of Article 780 of the Greek Code of Civil Procedure in combination with the relevant conflict-of-laws and substantive law provisions shall prima facie lead Greek courts to deny the recognition of a foreign adoption judgment, in case the judgment did not apply Greek law, but the law of another State that allows adoption of adults. It added that the relevant Greek law provisions do not in principle infringe the provisions of Articles 8, 14 of ECHR and Article 1 of the First ECHR Protocol.

Further to this, however, the Court held that Article 8 ECHR (that guarantees, inter alia, the right to private and family life) imposes to state courts an obligation to pursue ‘cross-border continuance’ of personal status and bonds between the parties of an adoption, through recognition, provided that such bonds actually exist within the legal order of the foreign State. Article 8 ECHR, as the Court explains, does not constitute an autonomous instrument for the recognition of foreign judgments on adoption; it does not substitute national rules. However, Greek state courts are to adjust and interpret the function of their own national rules based on the said provision taking into consideration the specific conditions of each case. As per the Supreme Court, ECHR case-law on Article 8 imposes examination of the particular circumstances of each case. National courts may not deny recognition of an adoption, by merely invoking their own different legal regime on adoption, if the adoption in the case at issue created a family relation in the State where it was effected that already constitutes a ‘social reality’ there. The relevant examination will be made on an ad hoc basis. Here, the Greek Supreme Court underlined as crucial elements; (a) the time period that has passed from the constitution of the adoption to the start of the recognition proceedings; (b) the intensity of the relation that led to the constitution of the adoption and (c) the frustration of the parties’ legitimate expectations due to a sudden amendment of the legal regime or practice of the national courts before which the recognition is brought. The Court concluded that the judgment of the Athens Court of Appeals is set aside for lack of sufficient grounds, i.e. for having failed to properly examine the particular circumstances of the case in light of the relevant ECHR case-law. This, because the Court of Appeals failed to examine and take into consideration the specific conditions of the disputed adoption, including the personal status of the adoptee and the adopted; the fact that the adopter had the centre of his vital interests in a foreign State (Italy); the fact that the adopter was domiciled for a long time before his death in Italy and had alienated himself from Greece. On the contrary, the Court of Appeals denied recognition of this adoption, which is however valid pursuant to both Italian and Albanian laws, by outright applying the Greek law provisions.

…But the method problem remains

The starting point of the judgment is the statement that Article 8, 14 ECHR and 1 of the Additional Protocol to the ECHR do not substitute Greek conflict-of-laws rules. This is in line with what we already know from the relevant ECtHR case-law. Further to this, the Greek Supreme Court seems to favour the (probably dominant and correct) interpretation according to which, said ECHR Articles do not impose an autonomous obligation to outright recognize and enforce foreign family judgments. Following this reasoning, the Court ruled that the lower courts are to examine whether non-recognition constitutes interference with the rights guaranteed by Articles 8, 14 ECHR and 1 of the Additional Protocol to the ECHR, in view of the specific circumstances of the case. In the words of the Supreme Court, the Court of Appeals erred ‘by outright applying the Greek law provisions and without further researching the particular conditions of the under discussion adoption’. Although the Court did not explicitly state this, said examination should be perceived as the well-known ECHR proportionality-test. If, after such examination, the lower courts conclude that non-recognition is equivalent to violation of the aforementioned ECHR rights, then they are obliged to recognize.

The applicable method or technique of recognition does not clearly arise from the judgment of the Supreme Court. In our view, the method is not to be found in the relevant ECtHR judgments either, because the ECtHR is neither competent nor interested to rule on private international law methods.

Basically, two distinct methods may be envisaged. Recognition of the foreign judgment itself, or recognition of the foreign status acquired abroad.

The first option, i.e. recognition of the foreign judgment, could be based on the Court’s sentence that the lower courts are ʽto adjust and interpret the function of their own national rules based on the said provision taking into consideration’. Walking down this road would presuppose a different construction of the rigid procedural law rule of Article 780 of the Greek Code of Civil Procedure. This could be achieved through a different construction of the conflict-of-laws rule, which serves as a prerequisite of the 780 rule; however such a construction seems to have been (implicitly) discarded by the Supreme Court. Another possible way would be to consider Article 8 ECHR as part of Greek public policy for the purposes of recognition of foreign judgments. But, public policy as a tool to impose a positive obligation of recognition is not provided in the 780 rule, neither may it be concretely derived by Greek law on foreign judgments. All in all, sticking to the recognition of the foreign judgments method is particularly challenging from a dogmatic point of view.

Then, it may be supported that the judgment implies the method of recognition of a foreign acquired status, since it refers to recognition of the ‘adoption’ and not of the ‘adoption judgment’. ‘Crystallization’ of the status acquired abroad, as a prerequisite of this method, is met in the case at hand, since the foreign status was acquired by virtue of a foreign judgment. Still, use of this recognition method would be a first for the Greek courts.

Finally, it seems that the reasoning of the Supreme Court may have wider application in the Greek legal order with regard to recognition of foreign judgments on personal status, when application of Greek private international law is at stake. Although this will probably have to be ruled, the reasoning of the court may well be applied in other non-contentious judgments falling into the application scope of Article 780 (for instance judgments for the placing under judicial interdiction; for the declaration of absence et al.).

Vassiliki Marazopoulou

* I would like to thank Professor Charalambos Pamboukis, my ‘Doktorvater’, for introducing me to the interesting world of the methods of recognition in private international law.