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.
Labels: Brussels II bis Regulation, Greek Code of Civil Procedure