Feed aggregator

SM
Citoyenneté européenne
L’avocat général Campos Sánchez-Bordona propose à la Cour de justice de déclarer qu’un mineur pris en charge dans le cadre du régime de la kafala algérienne par un citoyen de l’Union ne peut pas être considéré comme un « descendant direct » de ce citoyen

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.

The Swiss Institute of Comparative Law has just published the proceedings from its 30th Private International Law Day, which focused on digital platforms and their implications for the conflict of laws. The following teaser, as well as the volume’s table of contents, have been kindly provided by its editor and main organiser of the conference, Ilaria Pretelli:

Since its creation in the early 1990s, the World Wide Web has intensified its role and skills at too speedy pace for any sober reflection in human sciences.

The exponential rise of tech oligopolies is also a consequence of the “statelessness” of the platform economy, a circumstance that explains the great interest of the subject for lawyers and the choice of this topic for the 30th day conference in Private International Law of the Swiss Institute of Comparative Law, held on June 28th, 2018 whose proceedings, enriched by further contributions, are collected in the 86th volume of its red series.

The disruptive potential of the platform economy challenges traditional approaches based on the bilateral legal relationship and its geographical location.

It is worth asking whether the basic principles of private international law can be adapted to the immateriality of the digital space, whether a new revolution in the theory of private international law can be expected, or whether private international law is an inapt tool for platform governance and the only promising way is that of a multilateral and harmonising approach.

Collecting the proceedings of the conference, the 86th volume of our red series aims to contribute, through a multidisciplinary analysis, to the collective effort to build a legal theory adapted to digital platforms.

By presenting the first national and supranational responses to the challenges of the platform economy – still disordered and sometimes contradictory – the book attempts to synthesise the main trends in the legal developments that are forthcoming in various legal fields, with a focus on the need to protecting weak parties (workers, consumers, small and medium businesses).

Pourvoi c/ Cour d'appel de Nîmes, 6e chambre des appels correctionnel, 1er février 2019

Pourvoi c/ Cour d'appel de Poitiers, chambre de l'instruction, 17 janvier 2019

Tribunal de grande instance de Reims, 1re chambre civile, 18 févier 2019

Brenta e.a.
Agriculture LAIT
L’avocat général Campos Sánchez-Bordona propose à la Cour de justice de déclarer qu’un mineur pris en charge dans le cadre du régime de la kafala algérienne par un citoyen de l’Union ne peut pas être considéré comme un « descendant direct » de ce citoyen

Rimšēvičs / Lettonie
Droit institutionnel PEM
La Cour annule la décision suspendant le gouverneur de la Banque centrale de Lettonie de ses fonctions

Athletic Club / Commission
Aide d'État
Le Tribunal de l’UE annule la décision de la Commission qualifiant d’aide d’État le régime fiscal de quatre clubs de football professionnel espagnols

Oeuvre d’assistance aux bêtes d’abattoirs
Agriculture
Le logo de production biologique européen ne peut être apposé sur les viandes issues de l’abattage rituel sans étourdissement préalable