In a judgment delivered on 4 March 2020, the French supreme court for private and criminal matters (Cour de cassation) accepted to apply the doctrine of renvoi in a parenthood dispute.
The proceedings were initiated by a man who claimed that he was the father of a girl born from a married woman and demanded a DNA test to establish it. The spouses opposed it.
While the married couple resided with the child in France, the mother was a German national and the husband was an Italian and an Australian national. The child was born in Germany.
Article 311-14 of the French civil code provides that filiation is governed by the law of the nationality of the mother. The claim of the alleged lover was thus, in principle, governed by German law. The spouses argued that, under German law, the claim was inadmissible, unless the plaintiff could challenge that the girl was raised as the child of the spouses.
French courts, however, found that Articles 20, 19 et 14, § 1 of the German Introductory law to the Civil Code (EGBGB) provided that, under German private international law, filiation was governed by the law of the residence of the child and the law of the effects of marriage which was the law of the common domicile of the spouses if they were of different nationalities.
Indeed, Article 20 EGBGB provides that a challenge to filiation will be admitted if the action meets the requirements of either the law of the residence of the child or the law governing the effects of marriage. In the present case, Article 20 designated French law on each ground.
From the perspective of France, there was thus a renvoi from German law.
Substance blind choice of law rule
It is the first time that the court applies the doctrine of renvoi in the field of parenthood. While the doctrine is of general application in France (and more widely in many civil law jurisdictions), there was a doubt for parenthood because many choice of law rules in the field are not substance blind. They favour one outcome, for instance by providing that one way of establishing parenthood is valid if it is accepted by one of several laws.
Article 311-14 of the French civil code is a traditional choice of law rule, using a single connecting factor to determine the applicable law. It is does not, therefore, favour any particular outcome, and can be regarded as substance blind, or “neutral”. The court expressly insisted on this feature of the relevant choice of law rule.
The court held:
3. Pursuant to Article 311-14 of the Civil Code, filiation is governed by the personal law of the mother at the time of the birth of the child.
4. This provision lays down a multilateral, neutral choice of law rule which does not exclude renvoi.
First degree renvoi
Although the English speaking world has borrowed the term renvoi from the French, the doctrine is very different in the civil law and in the common law tradition. There are, in truth, two doctrines of renvoi in the civil law tradition, and none of them corresponds to the English double renvoi/foreign court theory.
The first doctrine is first degree renvoi. It provides that if the choice of law rule of the forum designates foreign substantive law, and the foreign choice of law rule designate the substantive law of the forum, the forum should accept the renvoi and apply the substantive law of the forum. This is what this case was about: the French choice of law rule designated German substantive law, and the German choice law rule designated French substantive law. The Cour de cassation accepted the renvoi.
Scholars have long identified that first degree renvoi may lead to the remarkable situation where two states both accepting first degree renvoi would play a game of tennis table over the border and create an endless process of designating each other’s law. In the present case, Germany does accept first degree renvoi (Rückverweisung in German), so it might well be that a German court would find that French law provides for the application of German law, and accept the renvoi from Art 311-14. If that were the case, it would follow that each court would apply its own law, instead of applying each other’s law. Quite an incentive for forum shopping.
Until recently, the Cour de cassation never cared to elaborate on the rationale of its decisions. This has changed recently. So, in the present case, the court cared to explained why renvoi should be admitted. It held:
(…) the resolution of the conflict of laws by application of German rules, which designate French law, ensures coherence of outcomes irrespective of the court seized by the application of the theory of renvoi.
Well, I am not sure about that. The purpose of first degree renvoi never was to ensure consistency of outcomes. In the present case, which involves two civil law jurisdictions which admit renvoi, the doctrine will not create any coherence of outcomes whatsoever. A French court will apply French law. A German court, if it accepts renvoi, will apply German law.
In truth, it is the second doctrine of renvoi, second degree renvoi, which aims at ensuring consistency of outcomes. Under this second doctrine, the choice of law rule of the forum designates foreign jurisdiction 1, which designates foreign jurisdiction 2, which also designates foreign jurisdiction 2. The doctrine provides that all three courts should apply the law of foreign jurisdiction 2. If this is the case, then consistency of outcomes will be ensured: all courts will apply the same substantive law.
In other words, the Cour de cassation offered the rationale of second degree renvoi to justify the application of first degree renvoi.
Wrong reasoning, right outcome?
There is, however, one case scenario where first degree renvoi can accidentally ensure consistency of outcomes. This is the case of a foreign country which would not accept renvoi.
As already mentioned, German law accepts first degree renvoi in principle. However, the relevant German choice of law rule is not substance blind. It favours one outcome, namely challenge to an existing filiation. It might be, therefore, that German law limits the operation of renvoi in this context, in order not to contradict the policy advanced by the rule.
Our German readers probably know…
An interesting application of renvoi, one of the most technical and complex devices of PIL. You are right that German courts would accept renvoi under Art 20 EGBGB only to the extent that it is in line with the policies underlying the provision. This restriction follows from the general part of the German PIL, which declares that renvoi is only to be followed „insofar as this is not incompatible with the meaning of the referral“ (Art 4 EGBGB).
Art 20 EGBGB is intended to ensure that the biological father will be recognised as the father in the legal sense under the so-called the principle of “true parenthood” (“Abstammungswahrheit”). Hence, the general policy of Art 20 EGBGB is to offer the parent as many laws for challenging parenthood as possible.
Consequently, German courts would refuse to follow a renvoi to German law by French law where German law would already be applicable under any of the alternatives of Art 20 in conjunction with Art 19 EGBGB.
In the case at hand, German law could already be applicable as the law governing the effects of marriage under Art 19(1) third sentence in conjunction with Art. 14(2) no. 1 EGBGB, assuming that the couple had their first residence in Germany, where the child was born, and that the couple was married at time of birth. If these assumptions are correct, then German courts would stick with French law as the applicable law under Art 19(1) first sentence as the law of the place of the (current) habitual residence of the child, because following the renvoi from French to German law under Art 19(1) first sentence would lead to a limitation of the possibility of challenge, given that German law applies already under Art 19(1) third sentence EGBGB.
So far, so complicated. At least the results of French and German PIL seem to be aligned: while the French courts accept renvoi to French law, the German courts also stick with French law. But mind you that under the German EGBGB a multitude of foreign laws applies to parenthood in this case: besides German and French law, there is also the law of the effective nationality of the father, which is Italian or Australian law (Art 19(1) second sentence EGBGB).
The situation thus hardly deserves to be called harmonious. Vérité en deçà du Rhin, erreur au-delà. It is surprising that the European legislator does not step in to untangle this chaos.
Many thanks to Felix Krysa for his contribution to this comment.