Thursday, 15 May 2014

On the application of Art. 9 & 12 Brussels II bis Regulation in Greece

This is a case involving a Greek and a Spaniard, and their litigation regarding contact rights with their daughter. The issue deserving attention was whether the Greek court had international jurisdiction to hear the case. The court examined mainly Art. 8, 9 and 12 Brussels II bis Regulation, and decided to dismiss the action. This is an unreported case [Thessaloniki 1st Instance Court 22101/2011], which I will include in the August edition of Armenopoulos, i.e. the Thessaloniki Bar Review.  

The facts: The parties concluded their marriage in 1997 in Greece. The (Spanish) mother gave birth to a daughter in 1999. In 2008 they decided to get divorced. Within the same year, the Thessaloniki 1st instance court issued temporary measures, by virtue of which the mother was granted temporary custody rights, and the contact rights of the (Greek) father were provisionally arranged. A couple of years later the father felt that his contact rights were violated by the mother’s behavior. He therefore requested that his rights be respected and that a penalty be imposed to the mother, in case she does not comply with the decision. The mother requested that the court refrains from entering into the merits of the case, because it lacked international jurisdiction to hear the case; she asserted that she and their daughter were residents of Oviedo since June 2008. Consequently, Oviedo was the child’s habitual residence since that time. Therefore, the Oviedo courts were competent to try the case.

The ruling: The court accepted the mother’s objection, and dismissed the action. It based its ruling on Art. 8, 9, and 12 Brussels II bis Regulation. The ruling begins with a long analysis of the above provisions, stating that Art. 9 establishes exclusive jurisdiction during the three-month period in favor of the courts where the child had its former habitual residence. 

On the basis of evidence, the court stated that the habitual residence of the child with its mother has been Oviedo at least since the date the action was filed, i.e. January 7, 2011. In light of the above fact, Art. 8 Brussels II bis is to be applied, which establishes jurisdiction in favor of the courts of the child’s habitual residence, in this case Oviedo. 

In addition, the court rejected the allegation of the father, that Art. 12.3 Brussels II bis should be applied. In particular, the court stated that the appearance of the defendant before the Thessaloniki court served the purpose of challenging its international jurisdiction. The fact that an action for the final arrangement of custody and contact rights was filed by the mother in 2009 was not sufficient reason for the court to apply Art. 19.3 Brussels II bis, and accept its jurisdiction, because the hearing of this action was cancelled. In addition, Art. 12.3 b Brussels II bis requires an expressive acceptance of the court’s jurisdiction, or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised. This was by no means the case in the present proceedings. 

In light of the above, the court dismissed the action as inadmissible.

Comments: The court was right in regards to the issue of prorogation of jurisdiction under Art. 12. Still, there are two points where the court could have given a more accurate interpretation: I’m referring to Art. 9 and 19 of the Regulation. 

First, its conclusion that the courts of the child’s new habitual residence have no jurisdiction during the three-month period runs contrary to the wording of Art. 9.2. It is true that there is authority supporting this view in Greece; however, the prevailing opinion supports here a concurrent jurisdiction for both courts [Rauscher, EuZPR/EuIPR (2010) Art 9 Brüssel IIa-VO Rn 22; Magnus/Mankowski/Borrás, Brussels II bis Regulation (2012), art. 9, note 6; Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 189, Rn 93; Heinig, Grenzen von Gerichtsstandsvereinbarungen im Europäischen Zivilprozessrecht (2010), p. 435]. Moreover, it is not clear from the text of the decision when the three-month period actually began. The court simply stated that the mother and the child were residents of Oviedo at least at the time the action was filed. However, without having a solid basis as to the date of the lawful removal of the child, the application of Art. 9 is sheer impossible. The manner in which the court considered the facts leads actually to the opposite direction, namely that the court had jurisdiction, since it hasn’t been demonstrated that the child was brought to Spain more than three months before filing the action. 

Secondly, the court should have dismissed immediately the argument regarding Art. 19 Brussels II bis, because in the case at hand there were no courts of different member states: Litigation in its entirety was unfolded before the Thessaloniki courts.