While EU harmonization in matters of parenthood is approaching, following the Commission’s proposal of last year [COM (2022) 695 final], national courts are still examining applications for recognition of foreign court decisions in accordance with domestic legislation. Earlier this year, the Areios Pagos, i.e., the Hellenic Supreme Court, was asked to decide whether an Austrian judicial declaration of paternity should be denied recognition on grounds of public policy, or not (Areios Pagos, Judgment No. 170/2023, available in Greek here).
First stage: Austria
In 2012, an Austrian national (A), domiciled in Austria, started non-contentious proceedings before the District Court of Eastern Graz, in Austria, against a Greek national (B), whose residence was in Thessaloniki, Greece. Born in 1968, A sought a declaration that B was her father. The court ruled in 2015 that B, who had died shortly before the publication of the decision, was in fact the father of A.
The Graz Civil Court of First Instance, seised by the heirs of B, dismissed the appeal in 2016. The appellants further filed an (extraordinary) appeal against the latter decision, but this appeal, too, was dismissed.
The judicial declaration of paternity was declared final in Austria in June 2016.
Second Stage: Greece
On an application filed before the Thessaloniki Court of first Instance, the Austrian judicial declaration was recognized in Greece pursuant to the pertinent provisions of the Greek Code of Civil Procedure (mainly Article 780, on the recognition of foreign judgments issued in non-contentious proceedings). The heirs of B challenged the recognition, to no avail. They seised, then, the Greek Supreme Court, arguing, among other things, that the Austrian decision should not be recognized in Greece on the ground that its recognition would offend Greek public policy. They noted that the Austrian rules governing proceedings aimed at a declaration of paternity differ profoundly from the corresponding Greek rules, notably as regards the time limits on applying for such a declaration.
The Supreme Court’s Judgment
In its ruling, the Supreme Court focused on Paragraph 148 of the Austrian Civil Code, on judicial determination of paternity, which reads as follows:
(1) The court must establish the paternity of the man from whom the child is descended. The application may be made by the child against the man or by the man against the child.
(2) On application by the child, the man who was present with the mother for not more than 300 and not less than 180 days before the birth or with whose semen medically assisted procreation was performed on the mother during this period may be established as the father, unless he proves that the child is not his offspring. Such recognition is no longer possible two years after the man’s death, unless the child proves that he or she is unable to provide evidence in accordance with para. 1 for reasons on the man’s side.
The Supreme Court then turned to corresponding Greek rule on the matter, namely Article 1483 of the Civil Code, which states:
A mother’s right to request recognition of her child’s paternity is extinguished when five years have passed since birth. The child’s right shall be extinguished one year after the child has reached the age of majority, and the right of the father or his parents two years after the mother has refused consent.
The Supreme Court dismissed the appeal. It acknowledged that Austrian law sets a two-year limitation period starting from the death of the father, whereas Greek law stipulates that an application for a declaration of paternity may be lodged no later than one year after the child has reached the age of majority, but observed that such a difference in regulation does not amount to a violation of public policy.
The Supreme Court concluded that recognition of the Austrian declaration ought to be granted in Greece, given that nothing in the judgment in question offends the basic principles of the Greek legal order.
Two years ago, the Athens Court of Appeal was called upon to examine the recognition of a German decision. The issues raised by the case are similar to those surrounding the Supreme Court’s ruling examined above. A German citizen, 31 years old at the date of filing, had seised a German court (the Schöneberg Justice of the Peace) seeking a declaration that the respondent, a Spaniard living in Athens, was his father. The German court upheld the application, and issued a declaration of paternity, which eventually became final in Germany.
At first instance, the German decision was granted recognition in Greece. The Athens Court of Appeal, however, later decided otherwise (Judgment No. 2736/2021, published in Private Law Chronicles 2021, p. 438 ff.).
In brief, it ruled as follows: the fact that the appellee applied for recognition of paternity before the German courts for the first time 13 years after he came of full age and subsequently, after 17 years, for the recognition of the German court decision in Greece, constitutes a breach of the time limits laid down by Greek law concerning applications for a declaration of paternity, and accordingly contravenes the public policy of Greece, since it constitutes an expression of abusive conduct
The Athens Court relied for this on the Greek Constitution and on the European Convention on Human Rights, in conjunction with Article 33 of the Greek Civil Code (on the public policy exception) and, more generally, the Greek legal order, which is concerned with the protection of third parties and the protection of public interest, as regards legal relationships that have been established and settled to date, i.e., 17 years after the appellant came of full age.
The Court of Appeal concluded that the Court of First Instance wrongly failed to examine whether the legal effects of the abovementioned German judgment, based on German law, correspond in substance to Greek law. Were Greek law applied, the legal consequences would have been diametrically opposed, and the application would have been dismissed, since the appellee had lost the right to bring the action long ago. Therefore, the court which delivered the judgment under appeal was not entitled to recognize the res judicata effect of that German judgment in Greece.
Article 31 para 1(a) of the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, states
The recognition of a court decision shall be refused: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the child’s interests.
The addition of the last part of the wording (taking into account the child’s interests), which is also featured in the Brussels II ter Regulation (Article 39(1)(a): taking into account the best interests of the child), is a clear message towards a stronger protection of the children. The question here is whether the protective shield refers to children of any age, i.e., even those children who have already passed the age of majority since many years.