Wednesday, 18 June 2014

International jurisdiction and lis pendens issues on an action for negative declaratory relief in affiliation proceedings

This is a recent case rendered by the Thessaloniki 1st Instance Court, which demonstrates the ongoing significance of national laws on Civil Procedure and Private International Law.  As it is well known, Brussels II bis Regulation excludes from its ambit cases dealing with the establishment or contesting of a parent-child relationship. At the same time, conflict of laws issues on the above matters have not been tackled by the EU. Hence, the scenery remains purely domestic. This is a reported case [Thessaloniki 1st Instance Court 1082/2014, Hellenic Justice 2014, pp. 579 et seq., with note from Delicostopoulos].  

The facts: The claimant is a national of Greece. He filed an action for negative declaratory relief before the Thessaloniki 1st Instance Court against two Austrians, requesting the court to declare that he’s not the father of the first respondent [henceforth: daughter], conceived by the 2nd respondent [henceforth: mother], after having out of wedlock sexual intercourse with him. Prior to filing the above claim, the daughter had initiated proceedings before the Bezirksgericht Graz-Ost, requesting the Austrian court to declare her affiliation with the applicant. Initially the daughter [born in 1968] started proceedings against a third person; however the Austrian courts dismissed the claim. Following discussions with the mother, she decided to launch proceedings against the applicant. Coming back to the Greek trial, the claim was duly and timely served to the Austrian citizens, as it was evidenced by the Austrian certificates of service produced by the claimant. Still, the respondents preferred not to enter an appearance. 

The ruling: The court established its jurisdiction under Art. 616 Greek Code of Civil Procedure, which especially in affiliation proceedings provides for a concurrent venue at the place where the claimant has his domicile at the time of filing. In terms of applicable law, the court referred to Art. 20 Greek Civil Code, which regulates the relationship between a father and a child born out of wedlock in the following fashion: 

a.      Pursuant to the law of their common nationality
b.      Pursuant to the law of their last common habitual residence.
c.       Pursuant to the law of the father’s nationality.

Given the fact that points a & b were not met, the court applied option c, i.e. Greek family law. The court had anyway an easy task, bearing in mind the default of appearance by the Austrian citizens. It has been established under Greek law on Civil Procedure that in actions for negative declaratory relief the onus of proof lies with the respondent, not the applicant. Hence, by not entering an appearance, the Austrian respondents did not meet with the requirement to prove sexual intercourse which led to the birth of the daughter.
For the reasons above, the Thessaloniki 1st Instance Court granted the claim, and declared that the claimant is not affiliated with the daughter in terms of a parent-child relationship.

Comments: There are two important points in this decision. 

a. As mentioned above, the court established its jurisdiction by virtue of Art. 616 Greek CCivP. This provision has the following wording: A claim for the recognition of paternity of a child born out of wedlock may be filed at the place where the claimant has his/her domicile at the time of filing. In all commentaries on Civil Procedure it is undisputable that this provision serves the interests of the child and its mother. In the case at hand, the court bends the rule, and provides a favorable forum to the presumed father, without justifying its extensive interpretation. Beyond that, there is a special provision dealing with international jurisdiction in parent-child relationship matters, namely Art. 622 § 1 CCivP, which grants jurisdiction to Greek courts on the grounds of the nationality of the father, the mother, or the child. Art. 622 § 2 CCivP stipulates that if no territorial competence can be established, the case is to be tried before the courts of the state’s capital. Hence, the court should have applied Art. 622 CCivP, and refer the case to the Athens 1st Instance Court, because none of the jurisdictional bases under Art. 22 et seq. CCivP have been proven by the claimant. Instead, it preferred an innovative interpretation of Art. 616 CCivP, and entered into the merits of the case.

b. As initially stated, the Brussels II bis Regulation does not apply in cases similar to the one presented [see Art. 1 § 3 (a) Brussels II bis Regulation]. On the other hand, Greek national law (Art. 221-222 Greek Code of Civil Procedure) does not oblige Greek courts to stay domestic proceedings, even if foreign proceedings began earlier. Academics are mostly favoring the opposite approach. However, courts are rendering contradicting judgments, leading to a confusing landscape. The judgment of the Thessaloniki 1st Instance Court opted for the position supported by Supreme Court rulings back in 2001 & 2006. However the point is not free from doubt, as evidenced by other legal authorities. It seems that only a ruling of the Supreme Court’s Full Bench would solve the matter, and promote security and stability on the issue.