Tuesday, 4 April 2017

First Request for a Preliminary Ruling by a Greek Court on the Interpretation of Brussels II Bis Regulation

The Brussels II bis Regulation is a frequent visitor in cross border family cases before Greek courts, most notably those dealing with divorce matters. However, no preliminary request has been sent up to date to Luxemburg, not even from the Supreme Court. The Leros Justice of the Peace dared the above step, submitting however a question which quite probably goes to the wrong direction.

Leros Justice of the Peace Nr. 22/2016, unreported 

THE FACTS: The parties are Alessandro Saponaro and Kalliopi-Chloi Xylina, i.e. an Italian and a Greek national. They are a married couple, living with their infant child in Rome. They filed an application for renunciation of succession on behalf of their daughter. In particular, the applicants asked the Leros court for the disclaimer of the grandfather’s inheritance, who died on May 10, 2015 on the island of Leros, where he had also his habitual residence. 

THE RULING: The court began its analysis by excluding the application of the Succession Regulation Nr. 650/2012: Pursuant to Article 83, this Regulation shall apply to the succession of persons who die on or after 17 August 2015. Surprisingly enough, the court continues by invoking Brussels II bis Regulation, whose application has been accepted almost axiomatically. It refers to Articles 1 Para 1 (b) & Para 2 (b), (c) and (e), passing then to the definitions given under Article 2.7 & 2.8, and finishing with Article 12 Para 3, after surpassing the ground rule of Article 8 Brussels II bis as follows: Given the Greek nationality of the child, the requirements set under Art. 12 Para 3 (a) are considered as granted. The court sees however a problem in the application of Art. 12 Para 3 (b), which triggered the following request addressed to the CJEU: 

In the event that a petition for leave to renounce an inheritance is brought before a Greek court by the parents of a minor child who is habitually resident in Italy, is it the case that, if there is to be a valid prorogation of jurisdiction under Article 12(3)(b) of Regulation No 2201/2003 (1): (a) the unequivocal agreement to the prorogation by the parents is demonstrated by merely the lodging of the application before the Greek court, (b) the prosecutor before the first instance courts is one of the parties who must agree to the prorogation at the time of the lodging of the application, given that under Greek law he is legally a party to the relevant proceedings, (c) the prorogation of jurisdiction is in the best interests of the child, given that the child and the applicants, who are the child’s parents, are habitually resident in Italy, while the place of residence of the person from whom property is inherited at the time of his death was Greece and the property inherited is in Greece.

[Request for a preliminary ruling from the Irinodikio Lerou (Greece) lodged on 9 Νοvember 2016 — (Case C-565/16), OJ C 22/23.01.2017, p. 13]

COMMENT: There is no doubt that the request raises serious questions as to its content. A sheer look at Article 1 Para 3 (f) [This Regulation shall not apply to: … (f) trusts or succession] would suffice for its rejection as inadmissible. The Leros court did not mention the above provision; hence, it was not confronted with the question whether it is possible to apply the Regulation in succession cases, such as the renouncement of inheritance. 

There is however an interesting background in the case at hand: According to Greek case law, an application such as the one forming the subject matter of the case, is to be submitted to the court of the child’s habitual residence. There has been some reaction against this direction, coming however mostly by legal scholars, not by courts of law. At the same time, given that this application is tried in the course of voluntary proceedings, there is no space for raising the choice of forum argument, because Article 740 Para 2 Greek Code of Civil Procedure (CCP) explicitly rules out such possibility.

In light of the above, the Leros court would have to dismiss the application, by virtue of Articles 797 & 740 Para 2 CCP. Presumably this result was leaving a bitter taste to the Justice of the Peace, especially in light of Article 13 in conjunction with Art. 4 of the Succession Regulation Nr. 650/2012, which grants jurisdiction to the courts where the deceased had its habitual residence even in cases related to a waiver of succession. 

Nevertheless, this is no more than speculation. The conclusion, which could also serve as a sort of prediction, is that the CJEU will most probably dismiss the request, because the subject matter of the dispute falls out of the scope of the Brussels II bis Regulation.

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Wednesday, 22 February 2017

Lis Pendens in divorce matters: Mandatory stay according to Art. 19 Brussels II bis even when the respondent is in default?

Cross border divorce cases appear frequently before Greek courts. However, lis pendens issues are rarely emerging in the hearing. It is widely accepted that the court second seized is obliged to stay proceedings until the court first seized decides on its jurisdiction. Usually this is the case when the respondent invokes Art. 19 Brussels II bis. The Gytheion First Instance Court was confronted with the question, whether it should stay proceedings, although the respondent was in default.

Gytheion First Instance Court Nr. 7/2017, unreported

THE FACTS: The parties are a Greek national (the claimant) and his Polish wife (the respondent). He filed a divorce action on March 7, 2016. The claim was properly served to the spouse in Wroclaw, Poland. The hearing took place on January 11, 2017. The respondent did not appear. During the proceedings, the Judge examined the claimant’s witness, who at some point referred to a claim filed by the respondent in Poland. The Judge asked the claimant’s lawyer to produce the foreign claim to the court, which eventually was submitted within the term of three days following the hearing in accordance with domestic Civil Procedure Rules. 

THE RULING: The court began by a thorough analysis of Art. 19 Brussels II bis and the respective case law of the CJEU [C489/14, Α v Β, ECLI:EU:C:2015:654; C173/16, M. H. v M. H., ECLI:EU:C:2016:542; C296/10, Bianca Purrucker v Guillermo Vallés Pérez], while at the same time it referred to case law published on the interpretation of Brussels I Regulation, which is to be applied by way of analogy [C185/07, Allianz SpA, Generali Assicurazioni Generali SpA v West Tankers Inc.; Health Service Executive v S. C., A. C., ECLI:EU:C:2012:255;]. It then confirmed its international jurisdiction to try the case, because the spouses’ last common residence was in fact within the courts venue. 

Following the documents produced by the claimant’s lawyer, i.e. the claim field with the Wroclaw Regional court, it decided to stay proceedings. The court underlined that the claim was filed on January 22, 2016, i.e. prior to the Greek claim. The court also stated that the Polish claim was served to the Greek husband, and that the case is still pending before the Wroclaw Regional court, which has not yet decided on its jurisdiction. The Greek court stressed that it has no authority to examine whether the Polish court has jurisdiction, even if it is obvious that is has not; this is for the Polish court to decide. 

For the reasons above, the Gytheion First Instance Court ordered the stay of proceedings until the Wroclaw Regional court decides on the matter.

COMMENT: To the author’s knowledge, this is the first judgment applying Article 19 Brussels II bis until today in Greece. The uniqueness of the ruling is reason enough for sharing it with the public at large. Beyond that, the judgment is innovative in the sense that it has not ordered the stay upon the respondent’s request. This is usually happening throughout EU national courts, and it is also mentioned in pertinent publications. Unlike the above, the court became aware of the pending action in the course of proceedings. In other words, the foreign lis pendens has emerged during the taking of evidence in the hearing. The decision of the court is thus more than welcome for a number of reasons: First, it provides a new facet to the court’s powers when examining its jurisdiction; second, it abides by the wording of the law, in this case Article 19.1 Brussels II bis; third, it serves the principle of procedural economy.