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Recognition of Surnames in Greece – Where do we go from here? –
The recognition of surnames determined abroad by virtue of a judgment or an administrative act has never attracted the attention of academics in Greece. The frequency of appearance concerning reported judgments is also scarce. In practice however, applications are filed regularly, mostly related with non EU-Member States. Until recently, recognition was granted by courts of law, save some minor exceptions, where the public order clause was invoked to deny recognition. A ruling of the Thessaloniki Court of Appeal from 2017 brings however an unexpected problem to surface.
I. The legal status in Greece
Name and surname issues are regulated by a decree published in 1957, as amended. For a person to change her/his name, there are certain requirements and an administrative procedure to be followed. The applicant has to prove the existence of a reason, such as psychological problems due to cacophonous sound of the surname, its pronunciation difficulty or hilarious meaning, its bad reputation or connotation, the lack of any contact with the applicant’s father, whose last name she/he uses, etc. In case of acceptance, the competent Mayor issues an act, granting the right of the petitioner to carry the new surname. If the application is dismissed, the applicant may file a recourse before the General Secretary of the territorially competent Decentralized Administration unit. The Council of State, i.e. the highest administrative court in Greece, serves as the last resort for the applicant.
II. The treatment of foreign judgments / administrative acts
The above decree does not regulate the situation where a person of double nationality (one of which is of course Greek) requests the registration of a foreign judgment or administrative act, whereupon a change of surname has been determined. Being confronted with relevant petitions, the Greek administration sought the assistance of the Legal Council of State, i.e. an advisory body at the service of state authorities. By virtue of a legal opinion issued in 1991, the Legal Council stated that registration may not take place prior to court recognition of the foreign judgment, pursuant to standard procedures provided for by the Greek Code of Civil Procedure [= GCCP]. In this fashion, the ball was sent to the courts.
III. The practice of the courts
Until recently, Greek courts reacted in a rather formal and simplistic way: Reference to the applicable provisions of the GCCP, presentation of facts, brief scrutiny on the merits and the documents produced, and recognition was granted. There are two exceptions to the rule. The first one is a reported case from 1996 [Athens 1st Instance Court Nr. 4817/1996, published in: Hellenic Justice 1997, p. 452], where a court order by the Supreme Court of Queensland was denied recognition, because it was based on the applicant’s wish to give up his surname and acquire a new one, without any examination by the Australian court. The Greek court invoked the public policy clause, stating that the issue goes beyond private autonomy, and is differently regulated in Greece. The same outcome appeared 32 years later in the course of an application for the recognition of an act issued by the Civil Registry of Suchoj Log, Sverdlovsk Oblast: In a ruling from last year, the Thessaloniki 1st Instance Court refused recognition on public policy grounds, because the procedure followed in Russia contravened mandatory rules of Greek law on the change of surnames [Thessaloniki 1st Instance Court Nr. 8636/2018, unreported].
A different stance was however opted by the Piraeus Court of Appeal with respect to an act issued by the Mayor of Vienna: After quashing the first instance decision, which dismissed the application as legally unfounded, the appellate court stayed proceedings, requesting a legal opinion on the procedure followed for the change of surnames pursuant to Austrian law. Upon submission of the legal opinion, the court proceeded to a brief analysis, whose outcome was the recognition of the Austrian act. In particular, the court confirmed that the procedure followed was in accordance with Austrian law [Bundesgesetz vom 22. März 1988 über die Änderung von Familiennamen und Vornamen (Namensänderungsgesetz – NÄG)]. Hence, no public policy reservations were in place [Piraeus Court of Appeal Nr. 141/2017, unreported].
IV. The Game Changer
The complacency era though seems to be over: In a judgment of the Thessaloniki CoA issued end 2017, things are turning upside-down. The application for the recognition of a registration made by the Civil Registry of Predgorny, District of Stavropol, was denied recognition, this time not on public order grounds, but on lack of civil courts’ jurisdiction. The court stated that the recognition of a foreign administrative act may not be examined by a civil court, if the subject matter at stake (change of surname) is considered to be an administrative matter according to domestic law. Bearing in mind that the change of surname is a genuinely administrative procedure in Greece (see under I), civil courts have no jurisdiction to try such an application.
V. Repercussions and the way ahead
What would be the consequences of this ruling in regards to the overall landscape?
First of all, there could be a sheer confusion in practice: If the administration demands court recognition, and courts decline their jurisdiction, stagnation is at the gates. A ping pong game will start between them, and the ball will be the poor applicant, trapped in the middle. Needless to say, there is no other judicial path for recognition. The Code of Administrative Procedure does not contain any provisions on the matter.
Secondly, is it to be expected that the same stance will prevail with respect to judgments or administrative acts coming from EU Member States? A spillover effect is not to be excluded. Courts seem to be encapsulated in their national niche. It is remarkable that no reference is made to the case law of the CJEU, even in the case regarding the Austrian Mayor’s act.
Therefore, an intervention by the legislator is urgently needed, otherwise we’re heading for stormy weather.
Much-awaited draft guidelines on the grave risk exception of the Child Abduction Convention (Art. 13(1)(b)) have been submitted for approval
After years in the making, the revised HCCH draft Guide to Good Practice on Article 13(1)(b) of the Child Abduction Convention has been completed and is accessible here. It has been submitted to the governance body of the Hague Conference on Private International Law (i.e. the Council on General Affairs and Policy) for approval.
There are five exceptions under the Child Abduction Convention and this is one of them; see also Arts 12(2), 13(1)(a), 13(2) and 20 of the Convention. Under this exception, the judicial or administrative authority of the requested State may refuse to return the child to his or her State of habitual residence following a wrongful removal or retention.
According to the latest survey of the Hague Conference of applications made in 2015, the refusals on the basis of Article 13(1)(b) of the Child Abduction Convention amount to 18% of the total judicial refusals. Thus, this is the most frequently raised exception. Other grounds for judicial refusal relate to the scope of the Convention (such as the lack of habitual residence or rights of custody). See the survey available here (p. 15).
Article 13(1)(b) contains the following three different types of risk:
- a grave risk that the return would expose the child to physical harm;
- a grave risk that the return would expose the child to psychological harm; or
- a grave risk that the return would otherwise place the child in an intolerable situation.
Particularly useful for practitioners are the examples of assertions that can be raised under this exception, which include but are not limited to (see paras 53-77):
- Domestic violence against the child and / or the taking parent
- Economic or developmental disadvantages to the child upon return
- Risks associated with circumstances in the State of habitual residence
- Risks associated with the child’s health
- The child’s separation from the taking parent, where the taking parent would be unable or unwilling to return to the State of habitual residence
- Separation from the child’s sibling(s)
In my opinion, the Child Abduction Convention, and in particular this exception, can no longer be interpreted in a vacuum and one should also look to the human rights case law which is quickly developing in this area (in addition to the applicable regional regulations).
Belgian Journal of Private International Law: Cautio judicatum solvi and surrogacy (among other things)
Please see the the last issue of 2018 of the Belgian Journal of Private International Law here.
Besides the latest judgments by the Court of Justice of the European Union, it also contains case law of the Belgian Constitutional Court and courts of appeal. The cases are in Dutch or French.
The judgment of the Constitutional Court (of 11 October 2018) concerned the response to a question posed to this court by the Commercial Court of Liège (p. 14 pof the issue). It involved the so-called cautio judicatum solvi. The question was whether the fact that only foreign national plaintiffs can be requested to give a warranty for costs infringes the Belgian Constitution, particularly its Articles 10 and 11 guaranteeing equality and prohibiting discrimination. The Court referred to the limitations that the Court of Justice of the EU had already set to the application of the cautio (it cannot be used against EU citizens). Moreover, the provision only applies in the absence of international conventions eliminating the cautio.The issue in this case was that Belgian plaintiffs living abroad (in Ecuador in the current instance), even if they have no assets in Belgium cannot be subjected to such warranty. The court found that the cautia juricatum solvi (Art. 851 of the Code of Civil Procedure) infringes the Constitution. The differentiation in treatment is not justifiable as it is not the plaintiff’s nationality but his or her residence outside Belgium and lack of property in Belgium that can cause the defendant to fear that he or she will not be able to recover costs. The Court left the provision intact and gave the legislator until 31 August 2019 to fix it.
* In the meantime, on 24 Januari 2019, a legislative proposal was submitted to delete the cautio judicatum solvi from the Code of Civil Procedure.
Other judgments deal with the attribution of Belgian nationality, with parentage and with the recognition of marriages.
A judgment by the Court of Appeal of Brussels (judgment of 10 August 2018) addresses the recognition of the parentage of twins born out of a surrogate mother in California (p. 15 of the issue). The Californian judgment establishing the parentage of two men (one Belgian and one French) was at issue. The Court of appeal recognised the Californian judgment, thus recognising both fathers as parents. The Court considered two grounds for refusal (under Art. 25 of the Belgian Code of Private International Law). First it found that the recognition of the judgment would not amount to a result that was manifestly contrary to public policy. The Court on the other hand found that the intending fathers did attempt to evade the law that would have been applicable, i.e. Belgian law as the intended father whose parentage was at issue had Belgian nationality (and this law governs parentage according to Art. 62 of the Belgian Code of Private International Law). However, the Court, after considering the particular situations of the children and the facts surrounding the case, found that the best interests of the children had the result that the parentage should be recognised in this case.
* See also the case note (in French) by Patrick Wautelet entitled “De l’intérêt supérieur de l’enfantcomme facteur de neutralisation de la fraude à la loi” (On the best interests of the child as a neutralising factor for evasion of the law) at p. 61 of the issue.
News
Podcast series in international and transnational law
Rishi Gulati, Associate Professor in International Law and Barrister, is hosting a new podcast series focusing on hot topics in international and transnational law, as well as domestic law developments with transnational impact. Significant developments impacting the legal profession are also discussed from time to time.
The podcasts are not only designed for a legal audience but also for the broader public using accessible language. They are also intended to be a teaching tool with the 50 or so minute episodes delving systematically on the issues discussed. Each episode invites a highly knowledgeable guest who can bring a unique perspective to the issue. A special attempt is made to include voices from all regions of the world.
Series 1 has now wrapped up and has seven episodes. The first three episodes concern challenges faced by the International Criminal Court, WTO and UN Human Rights Treaty Bodies respectively. The fourth episode discusses the impact of AI on the legal profession, a highly topical issue given the rise of generative AI. The fifth episode discusses the UK’s new subsidy control regime and the Levelling Up agenda. The sixth episode discusses animal rights law, with the final episode in Series 1 dealing with AI and international law from a substantive perspective. Series 2 will return after a short break!
You can subscribe to the podcast in various ways, including via SoundCloud, Spotify, and Google Podcasts
The Arab Yearbook of Public and Private International Law – Call for Submission
Finally!!! A yearbook dedicated to public and private international law in the Arab world has recently been established by BRILL and is expected to be launched in the fall of 2024 called “The Arab Yearbook of Public & International Law” (the Yearbook).
One can only warmly welcome this initiative. It will certainly provide a space for fruitful discussions and a forum where experts from the Arab world and abroad can exchange views, all for the sake of the further development of these areas of law in the Arab region.
The Yearbook’s official website provides the following description:
Conference Report: Global Law and Sustainable Development; Medellín, Colombia. 26-27 April, 2023
(authored by Verónica Ruiz Abou-Nigm)
Global Law and Sustainable Development. Conference Report.
On 26-27 April 2023 at the University of Medellín, Colombia, private international law scholars organised and hosted a conference that pushed the boundaries of the discipline and engaged with interdisciplinary and comparative perspectives around the theme of Global law and Sustainable Development. The conference, in Spanish, was organised by the University of Medellín and the Antioquian Institute of Private International Law (IADIP), and supported by D.E.C. Consultores, Edinburgh Law School, the Centre for C