{"id":3200,"date":"2024-12-07T00:15:13","date_gmt":"2024-12-06T23:15:13","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=3200"},"modified":"2025-03-10T22:32:52","modified_gmt":"2025-03-10T21:32:52","slug":"non-formalistic-convention-control-over-the-application-of-the-brussels-ii-bis-regulation-judgment-of-the-ecthr-in-giannakopoulos-v-greece","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/fr\/non-formalistic-convention-control-over-the-application-of-the-brussels-ii-bis-regulation-judgment-of-the-ecthr-in-giannakopoulos-v-greece\/","title":{"rendered":"Non-formalistic Convention control over the application of the Brussels II bis Regulation: judgment of the ECtHR in Giannakopoulos v. Greece"},"content":{"rendered":"\n

In Giannakopoulos v. Greece<\/a><\/em> (20503\/20, 3.12.2024) the ECtHR ruled on whether the Greek courts, in declaring themselves incompetent to deal with the applicant\u2019s application for custody of his children<\/strong> in light of the Brussels II bis Regulation<\/strong> (\u201cthe Regulation\u201d), had complied with Article 8 of the Convention<\/strong> (right to respect for private and family life).<\/p>\n\n\n\n

The applicant in the present case, a Greek national, instituted proceedings before the Greek courts to obtain the sole custody of his two children who had been taken to Germany by his ex-wife. Applying the Regulation, the Greek courts considered that since the children had had in Germany their habitual residence<\/strong> for the purposes of Article 8 of the Regulation for more than one year, they were not competent to hear that case<\/strong>, contrary to the German courts.<\/p>\n\n\n\n

The ECtHR found no violation<\/strong> of Article 8 of the Convention. It concluded:<\/p>\n\n\n\n

\u201cThe Greek courts examined the case and gave judgments that paid particular consideration to the principle of the paramountcy of the interests of the children \u2013 who appeared to be very well integrated into their new environment (see, by contrast, Neulinger and Shuruk, cited above, \u00a7\u00a7 145<\/em>\u2011<\/em>51). Their decisions do not appear arbitrary. The Court therefore finds no imperative reason to depart from the domestic courts<\/em>\u2019<\/em> findings in the case.<\/em>The Court concludes that, having particular regard to the need to address the specific facts in children cases, the Greek courts\u2019 assessment of the case in the light of the requirements of the Brussels II bis Regulation did not amount to a violation of Article 8 of the Convention, as it was proportionate to the legitimate aim pursued.<\/em>\u201d (\u00a7\u00a7 76-77)<\/p>\n\n\n\n

This case calls for the following six observations.<\/p>\n\n\n\n

1. The case is an application of the principle, recalled by the ECtHR at \u00a7 55 of the judgment, according to which it must verify that the principle of mutual recognition is not applied automatically and mechanically<\/strong> to the detriment of fundamental rights. As the ECtHR specified in Avoti\u0146\u0161 v. Latvia, <\/em>\u00a7 116: if a serious and substantiated complaint<\/strong> is raised before [the courts of the Member States] to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law<\/strong>.<\/p>\n\n\n\n

2. In the present case, the Greek courts obviously did not consider that any such serious and substantiated complaint had been raised before them. They rather concentrated on the issue of their own jurisdiction<\/strong> and therefore inquired about whether the habitual residence of the children<\/strong>, for the purposes of Article 8 of the Regulation, was in Greece or in Germany.<\/p>\n\n\n\n

3. The ECtHR, for its part, did not refrain from assessing whether the domestic courts\u2019 interpretation of the relevant provisions of the Regulation was arbitrary or manifestly unreasonable<\/strong> (\u00a7 69). However, it concentrated on whether the interpretation and application of the provisions of the Regulation<\/strong> by the Greek Court of Cassation was consistent with the applicant\u2019s rights as guaranteed under Article 8 of the Convention<\/strong> (\u00a7 62). In this connection, it stated: \u201cIt is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or to international agreements. The Court\u2019s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention<\/em>\u201d (\u00a7 70).<\/p>\n\n\n\n

4. Compatibility with Article 8 of the Convention in a case like the present one means \u201cthat the domestic authorities should strike a fair balance between the interests of the child and those of the parents<\/strong> and that, in the balancing process, particular importance should be attached to the best interests of the child<\/strong>, which, depending on their nature and seriousness, may override those of the parents.<\/em>\u201d (\u00a7 53)<\/p>\n\n\n\n

5. The Greek courts obviously did not intend to deal with Article 8 of the Convention<\/strong> when trying to comply with Article 8 of the Regulation. However, in assessing where the children had their habitual residence, they relied, in line with the CJEU case-law, on several factual criteria <\/strong>(social and family environment, degree of integration, linguistic skills, etc.) which produced a result, the non-return of the children to Greece, which corresponded, in the ECtHR\u2019s opinion, to the best interests of these children<\/strong> and, hence, was declared compatible with Article 8 of the Convention. Thus, the non-violation of that provision is not an automatic consequence<\/strong> of the application of Article 8 of the Regulation but will depend on the concrete circumstances of each case<\/strong>.<\/p>\n\n\n\n

6. In sum, this judgment is another confirmation of the ECtHR\u2019s jurisdiction over the application of EU law by the domestic courts<\/strong> of the Member States (see recently M.B. v. the Netherlands<\/a><\/em>). In exercising this jurisdiction, the ECtHR concentrates on the end result<\/strong> and is not too formalistic<\/strong> as to whether it has been achieved by explicit reference to the Convention or not.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

In Giannakopoulos v. Greece (20503\/20, 3.12.2024) the ECtHR ruled on whether the Greek courts, in declaring themselves incompetent to deal with the applicant\u2019s application for custody of his children in light of the Brussels II bis Regulation (\u201cthe Regulation\u201d), had complied with Article 8 of the Convention (right to respect for private and family life). […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22,19],"tags":[],"class_list":["post-3200","post","type-post","status-publish","format-standard","hentry","category-european-court-of-human-rights","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"fr","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/3200","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/comments?post=3200"}],"version-history":[{"count":4,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/3200\/revisions"}],"predecessor-version":[{"id":3288,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/3200\/revisions\/3288"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/media?parent=3200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/categories?post=3200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/tags?post=3200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}