Winds of change in the recognition of foreign adult adoption decrees in Greece

On September 22, the Plenum of the Greek Supreme Court published a groundbreaking ruling on the issue of the recognition of foreign adult adoption decrees. The decision demonstrates the respect shown to the judgments of the European Court of Human Rights, especially in the aftermath of the notorious Negrepontis case.

Supreme Court (Full bench) 9/2016, unreported

FACTS

A is an Albanian citizen born in 1980. At the age of 14 he immigrated to Italy. He stayed for many years in a child care institution, whose director was B, a Greek citizen born in 1938, acquiring additionally the Italian nationality at a later point. In 2002, i.e. one year after his retirement, B decided to adopt A. By virtue of a court decision in Rome, A was declared B’s adoptive son on the basis of Italian law [Article 281 Codice Civile]. The decision is final and conclusive. B passed away in 2008. He was the owner of immovable property and a bank account in Greece.

A was hindered to gain access to B’s assets  by C, a Greek national claiming inheritance rights to B’s property, on the grounds of a holographic will, for which she completed all necessary legal requirements, in order to acquire the status of a heir. Confronted with the situation above, A filed a claim before the Athens First Instance Court, contesting the will. C challenged A’s standing to sue on two grounds:

First, because the Italian decree was not recognized in Greece, i.e. no special proceedings took place for the recognition under Art. 780 Greek Code of Civil Procedure [CCivP]; Art. 780 reads as follows: Subject to the provisions of international conventions, a judgment of a foreign court is granted without any proceedings the same authority in Greece to that recognized by the law of the state of the court which issued the judgment, if 1) the decision applied the same substantive rules which would have been applicable under Greek conflict of laws rules, and must have been rendered by a court having jurisdiction under the law of the State whose substantive rules were applied; 2) it is not contrary to morality and public policy.

Second, because the adoption contravenes with Article 1579 Greek Civil Code [CC] on the adoption of adults, which should have been applied pursuant to Article 23 CC, i.e. the conflict of laws rule for adoption cases with foreign elements. Article 1579 CC states that an adult adoption is permitted only when there is a line of kinship between the adoptee and the adopter up to the fourth degree, or if the persons aforementioned are related by affinity. Article 23 CC states that the adoption prerequisites are governed by the law of each party’s nationality. In case of multiple nationality, Article 31 CC provides that the Greek nationality prevails over the foreign one.

The Athens court dismissed A’s action on the grounds invoked by B [Nr. 5904/2010, unreported].

A appealed. The Athens CoA dismissed the appeal on the same grounds: Notwithstanding the fact that Greek law should have been applied pursuant to Art. 23 & 31 CC, which was reason enough to refuse recognition according to Art. 780.1 CCivP, a sheer comparison of the facts with the conditions set under Art. 291 et seq. Codice Civile and Art. 1579 CC demonstrates significant differences, which cannot be tolerated by the Greek legal order [Athens CoA 1511/2012, unreported].

A filed a writ of cassation. He referred to Articles 8 & 14 ECHR, and Article 1 of the First Additional protocol to the Convention. The Supreme Court took distance from the decisions of the instance courts, but it did not quash the appellate ruling. Instead it invoked Article 563.2 CCivP, which regulates the reference of matters of general interest to the Supreme Court’s plenary session. It held that the question at stake is whether the refusal to recognize a foreign adult adoption, which in fact is not allowed pursuant to Greek law [Article 1579 CC] (applicable because of B’s Greek nationality [Article 23 & 31 CC]), and despite that this adoption is allowed in accordance with the law of the adoptee’s nationality, violates the rights of private and family life, as well as A’s property rights, pursuant to Articles 8 & 14 ECHR, and Article 1 of the First Additional protocol to the Convention [Supreme Court 818/2014, Private Law Chronicles 2015, pp. 117 et seq.].

THE RULING

The Plenum of the Supreme Court began with the presentation and elaboration of the pertinent domestic and international provisions. It then stated that even when Greek law poses concrete requirements, the recognition of a foreign adult adoption decree may not be excluded in any case. In accordance with the case law of the ECHR, the possibility of recognition needs to be examined on a case by case basis [referring specifically to the Wagner v. Luxembourg & Negrepontis v. Greece rulings of the Court], otherwise a violation of Articles 8 & 14 ECHR, and probably Art. 1 of the First Additional protocol to the Convention may not be excluded. In particular, national courts may not refuse the recognition of a valid adoption, if the latter has created “a social reality” in the state of origin. Sheer reference to domestic legal provisions does not suffice. The surrounding circumstances of the case at hand need to be scrutinized, namely, a) the time between the adoption decree and the time the latter is examined by the foreign court; b) the intensiveness of relations leading to the adoption; and c) the denial of prospects caused by the sudden change on the legal status, as a result of the refusal to recognize the foreign decree.

Hence, the Full Bench continues, in cases of adoption with foreign elements, Article 8 ECHR imposes to national courts the duty to seek a “cross-border continuation” of the personal status and links of the parties to adoption, as long as they really exist in the foreign state. Having said that, Article 8 ECHR does not function as an autonomous tool for the recognition of foreign adoption decrees, resulting in the substitution of domestic rules. National courts should however adapt and construe their provisions on the basis of its standards.

On the grounds of the above findings, the Plenum quashed the judgment of the Athens CoA, stating that the instance court failed to take into consideration the surrounding circumstances of the case, such as the personal status of the adopter, who was a resident of Italy for a long period of time and with no links to Greece until the day he passed away; instead it opted for the strict application of domestic rules, regardless of the fact that this adoption was valid both under Italian and Albanian law.

COMMENTS

The case is not yet over for A. Litigation will resume before the Athens CoA, pursuant to Article 580 CCivP [reference to the court whose decision was quashed for re-examination on the merits]. The instance court has to abide by the Full Bench ruling. Still, the latter did not exclude the application of Article 780 CCivP; it rather emphasized on the facts and circumstances in need to be considered when examining a request for recognition under this provision. The Athens CoA has still discretionary powers to refuse recognition, however this time entering into factual details regarding the case at hand. Mere reference to the domestic provisions is not anymore acceptable as a ground for refusal. Hence, the different approach of Greek as opposed to Italian law is not anymore relevant. The final frontier is therefore (once again) public order. Nevertheless, there’s too little space left for this clause: After the condemnation of the Hellenic Republic for violation of the ECHR in the Negrepontis case, and the unambiguous way in which the Plenum became aligned with this ruling, it would take tremendous efforts by the Athens CoA, in order to trace a violation of domestic public policy.

Compulsory Joinder and jurisdiction clause effects

(C-436/16, Georgios Leventis, Nikolaos Vafeias v Malcon Navigation Co. Ltd, Brave Bulk Transport Ltd)

 

A request for a preliminary ruling from the Greek Supreme Court [Areios Pagos] does not happen quite often; in fact, it is a rarity, and, particularly in the field of judicial cooperation in civil matters, rather a unicum. Hence, reason enough to report on the judgment which led to the request lodged on the 4^th of August 2016, asking the CJEU to interpret Article 23 Brussels I Regulation. The purpose of this post is to allow a glance to non-Greek speakers, and refrains from any further analysis of the ruling.

Supreme Court 468/2016, unreported

FACTS

Malcon Navigation Co. is the owner of a vessel, which was chartered by Brave Bulk Transport Ltd, a company registered in Malta, legally represented by Georgios Leventis, however actually owned and administered by Nikolaos Vafeias. Some months later, Brave Bulk Transport Ltd sub-chartered the vessel to the Ministry of Commerce of Iraq, in violation of the agreed conditions. As a result, the vessel was given back to Malcon Navigation Co. with 5 months delay. The latter triggered Malcon Navigation Co. to initiate arbitration proceedings in London, requesting that Brave Bulk Transport Ltd be condemned to pay the amount of nearly 1,5 million Euros [it is not clear from the decision when the arbitration agreement was concluded].

In the meantime, negotiations started in August 2007, following which partial payments were effected by Brave Bulk Transport Ltd. In November 14, 2007, a second agreement was signed between the parties, by virtue of which Malcon Navigation Co. agreed to postpone arbitral proceedings for six months, so that Brave Bulk Transport Ltd. Receives payment by the State of Iraq, in order to reimburse Malcon Navigation Co. In spite of the settlement concluded with the Iraqi government, Brave Bulk Transport Ltd. terminated the contract with Malcon Navigation Co., stating the country’s ostensible refusal to settle the case as the reason for termination. Malcon Navigation Co. became aware of the settlement some months later, i.e. November 2008.

Immediately afterwards arbitration proceedings were reopened on the initiative of Malcon Navigation Co.; an award was rendered end September 2009, ordering Brave Bulk Transport Ltd. to pay the amount of almost half a million Euros plus interests. However, enforcement efforts remained fruitless, resulting in the initiation of court proceedings of Malcon Navigation Co. against the remaining parties, both residents of Piraeus. Strangely enough though, the claimant filed proceedings against the Maltese company too, despite the unfortunate turn of events in terms of execution.

The Piraeus First Instance Court dismissed the action in regards to Brave Bulk Transport Ltd., on the grounds of a jurisdiction agreement in favor of English courts, which formed part of the second agreement, dated from November 14, 2007. On the other side, relief was partially granted against the remaining defendants. Both sides attacked the decision for their own reasons. The Piraeus CoA dismissed the appeal of Mr. Leventis and Mr. Vafeias, which challenged the first instance court judgment to dismiss the lack of international jurisdiction defense raised by the appellants. At the same time it dismissed the claimant’s appeal against Brave Bulk Transport Ltd., whereas allowing the appeal against Mr. Leventis and Mr. Vafeias.

The matter ended up to the Supreme Court on the initiative of the losing parties against both companies.

THE RULING

The Supreme Court started with an extensive analysis of Article 23 Brussels I Regulation, citing domestic scholarship and the pertinent rulings of the CJEU [cases 201/1982 (Gerling), C-71/1983 (Tilly Russ), and C-352/2013 (Cartel Damage Claims)]. It then connected Article 23 with Article 6.1 Brussels I Regulation, stressing out the joinder of parties issue. Pursuant to the Court’s view, the ratio of Article 6.1, i.e. the avoidance of irreconcilable judgments, is not to be found under Article 23. This vacuum, i.e. the lack of any reference to a party’s right to invoke the jurisdiction agreement in favor or against other parties involved in litigation, contravenes with the predictability principle, embedded in recital 11 of the Regulation.

The risk of contradiction is increased in disputes when the party concluding the choice of court agreement is jointly and severally liable with the remaining defendants. Such is the case at hand, regulated under Articles 71 (liability of a legal entity) & 926 (joint liability) Greek Civil Code. Hence, an extension of the agreement’s scope in personam seems to gain traction, in order to avoid the multiplicity of competent courts for disputes emanating from the same legal and factual cause of action, thus safeguarding legal certainty on the whole within the European area of law.

For the reasons above, the Supreme Court decided to stay proceedings, and referred the following question to the CJEU: Does the jurisdiction clause which has been agreed pursuant to Article 23(1) of Regulation (EC) No 44/2001 1 between companies and in the present case is included in the privately-executed agreement of 14 November 2007 between the first and second respondents, Article 10 of which provides that ‘the present agreement shall be governed by English law, it shall be subject to English jurisdiction and any dispute arising from or in connection with it shall be subject to the exclusive jurisdiction of the High Court of England and Wales’, also encompass, as regards acts and omissions of the organs of the second respondent, who represent it and give rise to liability on its part pursuant to Article 71 of the Greek Civil Code, the persons responsible who acted in the performance of their duties and are liable under that article, in conjunction with Article 926 of the Greek Civil Code, jointly and severally with the company, a legal person?

COMMENTS

The referral of the Supreme Court per se is very promising, because it signals its intention to engage in a previously inexistent discourse with the CJEU. In anticipation of the European Court’s ruling, and the opinion of the Advocate General before that, it suffices to say that the general view on the matter does not seem to support the position of the Supreme Court. For instance, Prof. Magnus states in his analysis under Art. 23 Brussels I Regulation that “where a claimant sues several defendants in same proceedings, a jurisdiction agreement can only be invoked by and against the defendant with whom the jurisdiction agreement has been concluded” [Magnus/Mankowski, Brussels I Regulation (2^nd ed. 2012) art. 23 note 158]. However, as mentioned in the beginning, this post serves solely as a quick glance to the Supreme Court’s reasoning, whereas its author reserves his right to return on the matter, once the CJEU publishes its ruling.