French Supreme Court Rules on Enforcement of Italian Decisions in Late Paternity Case

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 13 December 2023, the French Cour de cassation ruled that Italian decisions establishing parentage of an adult child in her 50s could be granted exequatur for it was not contrary to French international public policy.

Facts

An Italian woman domiciled in Italy filed a paternity case and obtained a judgment, rendered by the tribunal of Verbania (Italy) in 2010, establishing parentage between her and a man domiciled in France, who was thus found to be her father. This judgment was upheld by the Turin Court of Appeal in 2015 – the  year of the man’s death – and by the Italian Supreme Court in 2016. The wife of the man and his (other) children later brought proceedings in France to deny enforcement to the Italian judgments.

The Italian woman had initiated the proceedings to establish the paternity at age 51. It was alleged that she had known about it since she was 9.

Court of Appeal

In a judgment of 25 January 2022, the Paris Court of Appeal first held that Italian courts had jurisdiction to rule on the paternity case pursuant to French rules of private international law governing the enforcement of foreign judgments. According to the court, those were applicable because under the 1930 French-Italian Convention for the execution of judgments in civil and commercial matters, the competent courts are those of the country in which the defendant is domiciled and, if not, their habitual residence. Since the defendant in the Italian proceedings was domiciled in France, the Convention’s basis for jurisdiction was not established and French rules of private international law were applicable. The latter only require that there be a sufficiently characterized link with Italy, the plaintiff’s state of both nationality and residence, Italian courts had jurisdiction.

The Court of Appeal then proceeded to a proportionality test regarding the concrete consequences of the enforcement of the decisions. It first pointed out that the absence of prescription period in paternity actions under Italian law does not itself amount to a violation of French international public policy. Then, the court ruled that the recognition of the foresaid decisions did not amount to a disproportionate interference in the  right of the family of the father to a private and family life according to Article 8 of ECHR: the interference pursued the legitimate aim of protecting the woman (child)’s same right to a private life, which includes the right to know one’s identity and have it recognised; the wife and other children could not prove that the woman’s sole purpose was to take a share in her father’s succession, the lateness of her action not being sufficient proof of such motive; the woman being born before her father married to the wife, the stability of their family was maintained; the re-opening of the deceased’s succession could not cause legal uncertainty to the wife and her children who closed it before the end of the Italian proceedings; finally, the woman’s right to a private life should take precedence over the general interest to legal certainty as to the absence of prescription period in paternity actions under Italian law.

Judgment of the Cour de cassation

In a judgment of 13 December 2023, the French Cour de cassation upheld the decision of the Paris Court of Appeal. It first validated the interpretation of the 1930 Convention and the finding of Italian courts’ indirect jurisdiction. It then ruled that the Court of Appeal had correctly found that the enforcement of the Italian decisions establishing parentage did not cause a disproportionate interference in the plaintiffs’ right to a private and family life and, therefore, were not contrary to French international public policy.

Assessment 

The interpretation of the 1930 French-Italian Convention is not surprising. In a judgment of 20 March 2019, the Cour de cassation had already ruled that the ground for jurisdiction was not characterized in a case pending before Italian jurisdictions in which the defendant was domiciled in France.

More interesting is the phrasing of the Cour de cassation ruling that there was no violation of French international public policy since the proportionality test was satisfied. The articulation between the exception of international public policy and the proportionality test is most uncertain. While some rights guaranteed under the European Convention on Human Rights have been incorporated into French international public policy (e.g. the principle of equality between spouses in marriage dissolution under Article 5 Protocol 7, see here for a recent illustration), Article 8 has rather been applied afterwards, to ensure that the triggering of the international public policy exception did not violate one’s right to a private and family life by causing a disproportionate interference (see for e.g. a judgment of 4 October 2019, in which the French Cour de cassation accepts the transcription of a foreign birth certificate delivered in a context of a surrogacy and indicating the intended mother as the legal mother, despite its contrariety to international public policy, in order to comply with the children’s right to a private life).

However, the Cour de cassation had already ruled, in a judgment of 15 January 2020, that the court, when deciding on whether to grant exequatur to a foreign judgment, was bound to ensure the absence of contrariety with French international public policy, which included the rights guaranteed by the  European Convention on Human Rights – including Article 8 which was at stake in this case. In the light of these elements, the line between the proportionality test conducted by the requested court and the review as to substance of the decision can seem unclear.