The Odyssey of a legal guardian
An
ordinary case for the recognition of a German order appointing a legal guardian
became a sheer nightmare for the applicant. It took her twelve years in total, three
decisions in Germany and another six in Greece, for finally being recognized as
an appointed legal guardian of her husband…
THE FACTS
The applicant is the wife of a
Greek national living in Germany, who is in coma since July 2006. By virtue of
an application before the Cologne Justice of the Peace, she was appointed as
his legal guardian [the 2006 order]. She then filed an application for the
recognition of the German order (Beschluss) before the Thesprotia Court of
first Instance (hereafter: CFI). The application was dismissed, because the
German court applied German law for the appointment of the legal guardian, and
because no appointment of the family council (as provided by Greek law, which
should have been applied according to Article 8 Greek Civil Code) had taken
place [Thesprotia CFI 297/2010, unreported].
The applicant filed then an
application before the same court, this time requesting her appointment as a legal
guardian of her husband directly in Greece. The court dismissed again the
application for two reasons: First, because the application was not served to
her husband timely; secondly, because the application had to be filed before
the Athens court, which is the proper forum for Greeks living abroad [Thesprotia
CFI 119/2011, unreported].
The applicant filed a third application
before the same court, this time requesting the recognition of a second German
order issued again by the Cologne Justice of the Peace [the 2011 order]. Again,
the application was dismissed: Although this time the German court applied
Greek law for the appointment of the family council, her appointment was again
founded under German law [Thesprotia CFI 66/2013, unreported].
A fourth attempt came two years
later on the grounds of a new order of the Cologne court [the 2013 order]: This
time the application was dismissed due to res iudicata emanating from the 2006
& 2011 orders [Thesprotia CFI 26/2015, unreported].
An appeal was lodged against
the latter decision. The Corfu Court of Appeal quashed partially the first
instance judgment, stating that no res iudicata may be invoked against the 2013
German order, given that the latter refers to a period of time not covered by
the previous orders [Corfu CoA 42/2016, unreported].
THE RULING
The family of the person under
guardianship (father/mother/sister) filed an appeal on points of law before the
Supreme Court. Out of three grounds for appeal, two are worthy to mention:
First, they insisted on the interdependence of the three German orders, which should
have led the Corfu CoA to accept the res iudicata defence; second, they vaguely
invoked the violation of Article 4 of the 1961 Greek-German bilateral treaty on
the recognition and enforcement of judgments in civil and commercial matters, which
provides for a ground for refusal if the foreign court applied national law
which was not applicable according to Greek rules on the conflict of laws.
The Supreme Court dismissed
both grounds: It first repeated the reasoning of the Corfu CoA, in order to
reject the ostensible interdependence of the German orders, which would
presumably lead to the acceptance of res iudicata; it then easily discarded the
argument of a violation concerning Article 4 of the Greek-German treaty,
because it was proven that the German court had in fact applied Greek law for
the appointment both of the legal guardian and the family council [the German
order is reproduced almost to its entirety in Greek translation in the Supreme
Court’s judgment].
For the reasons above, the
appeal on points of law was dismissed [SC 1395/2018, unreported].
COMMENTS
The case is a demonstrative
example of the pitfalls surrounding cross-border litigation not covered by EU
legislation. Both German and Greek counsellors & courts committed mistakes:
In the 2006 & 2011 orders the Cologne court did not take into account the
nationality of the applicant’s husband, presumably because it was not
underlined by her lawyer. The judgment rendered by the Thesprotia CFI in 2015
was indeed wrong. A reason for this result might have been connected with the
fact that the applicant requested the recognition of all three German orders, thus
allowing the court to conclude that there was a certain connection between
them. Fortunately, both the Corfu CoA and the Supreme Court put things back in
their proper place.
Labels: 1961 Greek-German Convention