ECJ: Exhumation cannot be denied for paternity tests in cross-border cases

The European Court of Justice has clarified that national laws cannot obstruct cross-border paternity claims when it comes to gathering evidence. A man living in Italy sought to be recognized as the biological son of a man buried in France, requesting to use his surname and update his birth certificate.

His claim faced a hurdle when the deceased's recognized children refused to provide DNA samples. This necessitated testing the father's remains. An Italian court ordered an exhumation in France for genetic testing, but French law generally prohibits disturbing remains for DNA analysis unless explicit consent was given during life. This is to uphold human dignity.

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The court called for a strict interpretation of the grounds for refusal, stating that the requesting court cannot invoke its national law, including fundamental principles, to deny a request for evidence.

The French court questioned the European Court of Justice (ECJ) if its national laws could justify rejecting the Italian request under EU law. The ECJ ruled that the EU regulation on cross-border evidence gathering is exhaustive. National courts cannot refuse a request based on domestic laws, including fundamental legal principles.

The court emphasized that the decision to order evidence gathering lies with the court handling the case, which must also ensure compliance with the EU Charter of Fundamental Rights. The court where the evidence is to be gathered is responsible for its execution according to its own procedural rules. The ECJ found no indication that the Italian court failed to respect human dignity or that there was a systemic risk to fundamental rights in Italy, thus no grounds for the French court to refuse the request based on potential rights violations.

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The court that orders the evidence-gathering measure is responsible for ensuring it complies with the EU Charter of Fundamental Rights.