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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