Saturday, 29 June 2019

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.

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