Background
An Italian man sought to establish that he is the biological son of a deceased man buried in France. He requested genetic testing through exhumation of the body. An Italian court (Tribunale di Genova) ordered the genetic testing and, under EU Regulation 2020/1783, requested the French court (tribunal judiciaire de Chambéry) to execute this measure of inquiry.
French law, specifically Article 16-11 of the French Civil Code, prohibits exhumation of a body for parentage testing unless the deceased gave express written consent during his or her lifetime. The French court did not challenge the admissibility of the request but sought guidance on whether Article 12(2) of Regulation 2020/1783 permitted it to refuse execution based on this French substantive law prohibition. The court also raised questions about the relationship between the right to know one’s origins (Article 7, Charter of Fundamental Rights) and the right to respect for human dignity of the deceased (Article 1, Charter).
The Court’s Holding
The CJEU held that Article 12(2) of Regulation 2020/1783, which requires the requested court to execute requests “in accordance with its national law,” refers only to procedural rules for evidence-taking, not substantive law. The regulation establishes a judicial cooperation mechanism limited to procedural aspects; it does not harmonize substantive law between Member States. Crucially, a requested court cannot refuse to execute an evidence-taking request based on substantive law of the requested Member State, including prohibitions derived from fundamental principles of national law.
The only grounds for refusal are those exhaustively listed in Article 16 of the regulation. Article 16 permits refusal only on narrow procedural grounds—that the request falls outside the regulation’s scope, does not fall within judicial functions, remains incomplete despite a request for clarification, or payment has not been made—but not on substantive law grounds. The exhaustive nature of these grounds is supported by Recital 16 of the regulation, which expressly provides that refusal grounds “should be confined to strictly limited exceptional situations.”
The Court emphasized the role of mutual trust: it is for the requesting court alone to assess, under its own law, whether the measure of inquiry complies with fundamental rights before ordering it. Member States must presume that other Member States comply with EU fundamental rights standards, and a requested court may not impose a higher standard of protection or verify actual compliance by another Member State except in exceptional circumstances. The requesting Italian court, having ordered the measure under Italian law (which permits post-mortem genetic testing for parentage), bore responsibility for ensuring compliance with the Charter; the French court was required to execute the request.
Key Takeaways
- EU evidence-taking cooperation procedures are binding procedurally and cannot be circumvented by a requested court invoking its own substantive law restrictions.
- The distinction between procedural and substantive law is central: requested courts apply their own procedural rules but cannot add substantive law grounds for refusal.
- Fundamental rights compliance is the responsibility of the requesting court, which must assess its measure under its own law before ordering it.
- The principle of mutual trust requires presumption of compliance by other Member States and precludes individual courts from policing whether foreign states have observed fundamental rights in specific cases.
- Post-mortem genetic testing for establishing parentage may proceed across borders when permitted by the requesting state’s substantive law, notwithstanding restrictions in the requested state.
Why It Matters
This ruling affirms that EU-wide judicial cooperation in evidence-taking cannot be derailed by individual Member States’ substantive law concerns. By holding that only procedural rules—not substantive prohibitions—apply under the requested court’s law, the Court prevents fragmentation of cross-border civil justice. A requested court invoking national substantive rules to block evidence could destroy access to justice for litigants in disputes spanning multiple states, undermining the EU’s core objective of creating an area of civil justice without internal borders. The decision protects individuals’ right to establish paternity and know their origins across borders while maintaining efficient, predictable cooperation between courts.
The emphasis on mutual trust reflects a fundamental feature of EU law: Member States agree that judicial systems deserve confidence. Without that presumption, each court would second-guess every other’s standards, paralyzing cooperation. The ruling clarifies for practitioners and courts that procedure—not substance—is the battleground for evidence-taking disputes, and that substantive challenges to an evidence request must be raised by the requesting court or the parties, not by the requested court acting as a guardian of foreign law.