CASE OF MERGER AND CROS v. FRANCE
Violation of Art. 14+P1-1 with regard to the inheritance rights;No violation of Art. 14+P1-1 with regard to the capacity to receive assets as a gift;Not necessary to examine Art. 14+8 with regard to the inheritance rights;Violation of Art. 14+8 with regard to the capacity to receive assets as a gift;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicants were born in 1968 and 1936 respectively and live in Paris. 9. The first applicant was born on 6 December 1968 of a relationship which began in 1964 between the second applicant, a widow and the mother of a daughter born in 1957, and Mr R. Merger, a married man and the father of four children born in 1942, 1944, 1945 and 1947. At the time her birth, her father and mother had been living together since 1965. Her father formally acknowledged paternity on 7 December 1973 and she has borne his name since 17 May 1985. 10. On 11 May 1980 the first applicant's father drew up a private deed dividing his movable property between his five children. The document was signed by the four legitimate children and by the father on the first applicant's behalf. 11. On 11 October 1984 he made a manuscript will in which he left to the first applicant the disposable portion of his estate which, pursuant to Article 913 of the Civil Code, came to one quarter. He stipulated that it was to be taken free of his wife's life interest. 12. In a second manuscript will dated 16 June 1985 he stated that he wished the estate to be divided into five parts to be allocated by the drawing of lots in the presence of all his children, for the disposable portion of the estate to pass to the first applicant after an account had been taken of any gifts that had been made and for his wife's life interest to attach only to the share of the four legitimate children. The first applicant was to receive a reversionary pension for the duration of her studies and these were to be paid for if the law so permitted. 13. The first applicant's father died on 12 March 1986 leaving as his heirs his wife, four legitimate children and the first applicant, an illegitimate child conceived while he was bound by marriage to a person other than its mother. 14. A notary was instructed to wind up the estate. He took an inventory at the home on 20 June 1986. The first applicant (who was sitting her baccalaureate that day) was represented by the second applicant, who pointed out that certain movables were missing. The widow laid claim to certain items which she said belonged to her. The total value of the movables listed in the inventory was estimated at 114,175 French francs (FRF). 15. Since an amicable division of the estate proved impossible, the deceased's four legitimate children and their mother brought proceedings against the applicants in the Paris tribunal de grande instance seeking, inter alia, orders setting aside the gift of the disposable portion to the first applicant and the gifts their father had made to the second applicant – which were deemed to have been made to the first applicant – and restricting the first applicant's rights to 10 % of the net estate. 16. The applicants asked the Court, inter alia, to dismiss the claims and to order the claimants to hand over to the first applicant all the movable property she had been allocated on 11 May 1980. 17. In a judgment of 6 November 1992, the tribunal de grande instance found that funds that had been used to purchase a flat in the avenue d'Italie in Paris and a sum of FRF 500,000 were gifts that had been made to the first applicant through an intermediary and set them aside under Articles 908 and 911 of the Civil Code. It added that the value of the property that had been acquired with those gifts had to be brought into account. Relying on those provisions, the tribunal de grande instance ruled that the first applicant was not entitled to more than 10% of the estate and held that the gift of the disposable portion was inoperative. Relying principally on Article 931 of the Civil Code, it held that the deed of division dated 11 May 1980 was null and void as it was not in the correct form and added, in the alternative, that the first applicant could only lay claim to 10% of the movables that were divisible in kind. Lastly, it declared that the first applicant was to receive her share of the estate free of any life interest. 18. The applicants appealed against that judgment. The first applicant completed her studies in December 1993. 19. In a judgment of 24 September 1996, the Paris Court of Appeal transferred the case to the Dijon Court of Appeal, as one of the parties was a judge of the Paris tribunal de grande instance and the other had been admitted to the Paris Bar while the proceedings were under way. 20. In a judgment of 27 November 1997, the Dijon Court of Appeal upheld the judgment of the court below in so far as it had refused to grant the first applicant identical inheritance rights to those of the four legitimate children or to allow her to take the disposable portion and had ruled that the assets of the second applicant – who it noted had lived with the deceased since 1965 – were gifts acquired through an intermediary. Noting that the first applicant was an illegitimate child who had been conceived when her father was bound by marriage to a person other than her mother, it declared her claim to a reversionary pension inadmissible as she was not prepared to abandon her rights to the estate. 21. The applicants appealed to the Court of Cassation. 22. On 4 February 1999 the notary liquidated the estate and drew up the deed of division. The first applicant signed the deed “without prejudice to the appeal to the Court of Cassation which has been served on the parties”. Under the terms of the deed of division, she was required to pay an equalising balance to the other heirs in the French franc equivalent of 236,187 euros (EUR). 23. The second applicant sold her home to pay that balance on behalf of her daughter, who had no property of her own. 24. In a judgment of 3 May 2000, the Court of Cassation dismissed the applicants' appeal. 25. Following that judgment, the equalising balance was duly paid to the other heirs. 26. The relevant provisions of the Civil Code as worded at the material time were as follows: “Part I: Succession ... Chapter III: Orders of succession ... Section III: Rights of descendants to inherit “Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ascendants, without distinction on grounds of sex or primogeniture, and even if born of different marriages. The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants. ... Section VI: Rights of illegitimate children to inherit Illegitimate children shall, in general, have the same rights to inherit from their father and mother or other ascendants and from their brothers and sisters and other collateral relatives as legitimate children. Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage to another person shall not prevent such other person from inheriting from the father or mother if he or she would have been entitled to inherit under Articles 765 and 766 below but for their birth. In such eventuality, irrespective of their number, the illegitimate children shall receive only half of that which would have devolved to the spouse under the aforementioned Articles but for their birth, the calculation being made line by line... Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born shall be entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate. The fraction by which their share of the estate is thus reduced shall revert solely to the children born of the marriage damaged by the adultery. It shall be divided between them in proportion to their share in the estate. Titre II: Inter vivos and testamentary gifts ... Chapter II: Capacity to use or receive inter vivos and testamentary gifts Illegitimate children shall not be entitled to receive by way of inter vivos or testamentary gift from their father or mother a share of the estate in excess of that to which they are entitled under the aforementioned Articles 759 and 760 if the donor or testator was, at the time of their conception, bound by marriage to another person. An action for abatement may, however, only be brought by the spouse or children of the marriage, as the case may be, and only once the estate has passed to the heirs. Any disposition to a person without capacity shall be null and void, whether disguised as a contract for consideration or made in the name of intermediaries. The father, mother, children, descendants, and spouse of a person without capacity shall be deemed to be intermediaries. ... Chapter III: The portion of disposable assets and abatement ... Section I: The portion of disposable assets Gifts, whether inter vivos or testamentary, may not exceed one half of the donor's assets if on his death he leaves only one legitimate child, one-third if he leaves two or one quarter if he leaves three or more. An illegitimate child whose share in the estate has abated pursuant to Articles 759 and 760 may, if in need, claim maintenance from the estate in exchange for abandoning his or her rights in favour of the heirs. Such maintenance shall be governed by Article 207-1 of this Code. The heirs may, however, settle such a claim by granting the applicant a share equal to that which he or she would have received under Article 759 and 760. ... Chapter IV: Inter vivos gifts ... Section I : Formal requirements for inter vivos gifts Any deed providing for an inter vivos gift shall be made before a notary in the ordinary form applicable to contracts; an original shall be kept by the notary, on pain of nullity.” 27. On 4 December 2001 Law no. 2001-1135 of 3 December 2001 “on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession” was published in the Official Gazette. It abolished any difference in treatment of illegitimate children one of whose parents was, at the time of their conception, bound by marriage to another person. It repealed the provisions of the Civil Code (in particular, Articles 759, 760, 908 and 915-2) that gave children whose father or mother was married to another person at the time of their conception less favourable inheritance rights. It also repealed the provisions that protected the spouse alone if he or she was competing solely with such children. 28. The Montpellier tribunal de grande instance held as follows in a judgment of 2 May 2003: “Since it creates a difference between children's inheritance rights depending on their birth, the application of Article 760 of the Civil Code violates the provisions of the Convention ..., as the European Court recently held (in its judgment of 1 February 2000 in the case which Mr Mazurek brought against the French State). ... Thus, Article 760 of the Civil Code must be disregarded, as it contains provisions that discriminate against children of an adulterous relationship with no properly justified basis and it is inconsistent with the European Convention on Human Rights, which, by virtue of Article 55 of the Constitution, ranks ahead of the provisions of domestic law and, in accordance with settled case-law, is directly applicable by the French courts.”