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’s application for custody of his children in light of the Brussels II bis Regulation (“the Regulation”), had complied with Article 8 of the Convention (right to respect for private and family life).

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 for the purposes of Article 8 of the Regulation for more than one year, they were not competent to hear that case, contrary to the German courts.

The ECtHR found no violation of Article 8 of the Convention. It concluded:

“The Greek courts examined the case and gave judgments that paid particular consideration to the principle of the paramountcy of the interests of the children – who appeared to be very well integrated into their new environment (see, by contrast, Neulinger and Shuruk, cited above, §§ 145‑51). Their decisions do not appear arbitrary. The Court therefore finds no imperative reason to depart from the domestic courts’ findings in the case.The Court concludes that, having particular regard to the need to address the specific facts in children cases, the Greek courts’ 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.” (§§ 76-77)

This case calls for the following six observations.

1. The case is an application of the principle, recalled by the ECtHR at § 55 of the judgment, according to which it must verify that the principle of mutual recognition is not applied automatically and mechanically to the detriment of fundamental rights. As the ECtHR specified in Avotiņš v. Latvia, § 116: if a serious and substantiated complaint 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.

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 and therefore inquired about whether the habitual residence of the children, for the purposes of Article 8 of the Regulation, was in Greece or in Germany.

3. The ECtHR, for its part, did not refrain from assessing whether the domestic courts’ interpretation of the relevant provisions of the Regulation was arbitrary or manifestly unreasonable (§ 69). However, it concentrated on whether the interpretation and application of the provisions of the Regulation by the Greek Court of Cassation was consistent with the applicant’s rights as guaranteed under Article 8 of the Convention (§ 62). In this connection, it stated: “It 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’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention” (§ 70).

4. Compatibility with Article 8 of the Convention in a case like the present one means “that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents.” (§ 53)

5. The Greek courts obviously did not intend to deal with Article 8 of the Convention 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 (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’s opinion, to the best interests of these children and, hence, was declared compatible with Article 8 of the Convention. Thus, the non-violation of that provision is not an automatic consequence of the application of Article 8 of the Regulation but will depend on the concrete circumstances of each case.

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