Opinion of Advocate General Ćapeta delivered on 11 September 2025.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2025:692
• Date: 11 September 2025

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 11 September 2025 (1)

Case C‑196/24 [Aucrinde] (i)

xx

v

ww,

yy,

zz,

vv,

joined parties:

Ministère Public

(Request for a preliminary ruling from the tribunal judiciaire de Chambéry (Court of Chambéry, France))

( Reference for a preliminary ruling – Judicial cooperation between the courts of Member States in civil or commercial matters – Taking of evidence in civil or commercial matters – Exhumation of a body for the purpose of establishing parentage – Genetic testing – Request for the taking of evidence considered contrary to fundamental principles of the national law of the requested Member State – Grounds to refuse a request for the taking of evidence – Conflict between fundamental rights – Human dignity of a deceased person – Respect for private and family life – Personal identity – Right to know one’s genetic origins )

I. Introduction

1. The present request for a preliminary ruling invites the Court to interpret Regulation (EU) 2020/1783, which establishes judicial cooperation in civil and commercial matters in relation to the taking of evidence. (2)

2. More precisely, the Court is invited to assess for the first time whether national legislative rules, regarded as a matter of public policy under national law, can be relied on as a ground for refusing to execute a request for the taking of evidence sent by a court of one Member State (the requesting court) to the court of another Member State (the requested court).

3. The questions before the Court arose in the context of judicial proceedings brought before the Tribunale di Genova (District Court, Genoa, Italy; ‘the Italian court’) in order to establish the paternity of the applicant in the present case. To that end, that court made a request to the tribunal judiciaire de Chambéry (Court of Chambéry, France), which is the referring court, for the taking of evidence pursuant to Regulation 2020/1783 for the purpose of completing an expert genetic report necessary for establishing paternity. The execution of that request involves exhuming the body of the putative father, buried in France, and taking a sample from the body necessary for genetic fingerprinting.

II. Relevant EU Law

EU Charter of Fundamental Rights

4. Article 1, entitled ‘Human dignity’ provides:

‘Human dignity is inviolable. It must be respected and protected’.

5. Article 7, entitled ‘Respect for private and family life’ provides:

‘Everyone has the right to respect for his or her private and family life, home and communications.’

Regulation 2020/1783

6. Article 1 defines the scope of Regulation 2020/1783. It distinguishes between the indirect taking of evidence, in Article 1(1)(a) thereof, and the direct taking of evidence, in Article 1(1)(b) thereof. That provision reads as follows:

‘1. This Regulation applies in civil or commercial matters in which the court of a Member State, in accordance with the law of that Member State, requests:

(a) the competent court of another Member State to take evidence; or

(b) the taking of evidence directly in another Member State.

(…)’

7. Article 12 of Regulation 2020/1783 contains general provisions on the execution of requests for the indirect taking of evidence under Article 1(1)(a) of that regulation. The relevant parts of Article 12 provide:

‘1. The requested court shall execute the request without delay and, at the latest, within 90 days of receipt of the request.

2. The requested court shall execute the request in accordance with its national law.

3. The requesting court may call for the request to be executed in accordance with a special procedure provided for in its national law, using form A in Annex I. The requested court shall execute the request in accordance with the special procedure unless doing so would be incompatible with its national law or it is unable to do so because of major practical difficulties. If the requested court does not comply with the call for the request to be executed in accordance with a special procedure for one of those reasons, it shall inform the requesting court using form H in Annex I.

(…)’

8. Article 16 of Regulation 2020/1783 enumerates the grounds for refusing to execute requests for the indirect taking of evidence as provided for in Article 1(1)(a) thereof. Whereas Article 16(1) concerns only requests for the examination of a person, not relevant in the present case, Article 16(2) reads as follows:

‘2. The execution of a request may only be refused on grounds other than those referred to in paragraph 1, where one or more of the following grounds applies:

(a) the request does not fall within the scope of this Regulation;

(b) the execution of the request does not fall within the functions of the judiciary under the law of the Member State of the requested court;

(c) the requesting court does not comply with the request of the requested court to complete the request for the taking of evidence pursuant to Article 10 within 30 days of the requested court asking it to do so; or

(d) a deposit or advance asked for in accordance with Article 22(3) is not made within 60 days of the requested court asking for such a deposit or advance.’

9. Article 19 of Regulation 2020/1783 concerns requests for the direct taking of evidence, as provided for in Article 1(1)(b) thereof. Article 19(7) enumerates the grounds for refusing to execute such a request, it reads as follows:

‘7. The central body or the competent authority of the requested Member State may refuse a request for direct taking of evidence only if:

(a) it does not fall within the scope of this Regulation;

(b) it does not contain all of the necessary information referred to in Article 5; or

(c) the direct taking of evidence requested is contrary to fundamental principles of law in its Member State.’

Regulation No 1206/2001 (3)

10. Regulation 2020/1783 is a recast of Regulation No 1206/2001.

11. The relevant provisions of Regulation No 1206/2001, Articles 1, 10, 14 and 17, correspond, respectively, to Articles 1, 12, 16 and 19 of Regulation 2020/1783.

12. In that respect, the case-law on Regulation No 1206/2001 is also relevant for the interpretation of the applicable provisions of Regulation 2020/1783 in the present case.

III. The facts in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

13. The applicant in the present case, xx, brought proceedings before the Tribunale di Genova, (Civil District Court, Genoa) seeking to establish that aa, who is deceased and buried in France, is his biological father.

14. The applicant seeks from that court (i) a declaration stating that he is the illegitimate son of aa, (ii) authorisation to use his father’s name and (iii) an order that the competent registrar enter the future judgment into the record when it becomes final.

15. The defendants in the main proceedings, who are legitimate children of aa, objected to undergoing the tests necessary for a haematologist’s report to determine whether the applicant has genetic characteristics matching those of the defendants. They instead requested that a genetic examination be performed on the body of their late father. Therefore, the Italian court ordered an expert report by a haematologist and appointed an expert to carry out a genetic comparison between the applicant and the body of the putative father upon his exhumation.

16. On 18 November 2022, the Italian court sent to the referring court a request for the exhumation of the body of the putative father, pursuant to Regulation 2020/1783, using Form A, as provided in Annex I to that regulation.

17. However, under the Code civil (French Civil Code), a judge cannot order the exhumation of a body for the purpose of obtaining a genetic sample with a view to establishing parentage, unless the deceased person had given his or her express consent during his or her lifetime.

18. The relevant provision of the French Code civil (Civil Code), Article 16-11 thereof, (4) provides:

‘The identification of an individual by DNA fingerprinting may be sought only:

1° In the context of investigative measures conducted in the course of judicial proceedings;

2° For medical or scientific research purposes;

3° For the purpose of establishing, when it is unknown, the identity of deceased persons;

4° Under the conditions provided for in Article L. 2381-1 of the code de la défense [(Defence Code)];

5° For the purpose of combating doping, under the conditions provided for in Article L. 232-12-2 of the code du sport [(Sports Code)].

In civil matters, such identification may be sought only by execution of a measure of investigation ordered by a court before which an action is brought, seeking either to establish or to contest parentage, or to obtain or remove subsidies. The consent of the person concerned must be obtained expressly and in advance. An identification cannot be made by DNA fingerprinting after a person’s death unless that person gave his or her express consent during his or her lifetime.

…’

19. Additionally, as submitted by the French Government, the entire chapter of the French Civil Code to which that provision belongs is considered a matter of public policy, by virtue of Article 16-9 of that code.

20. In those circumstances, the referring court wonders whether Article 12(2) of Regulation 2020/1783 should be construed as allowing a court to refuse to execute a request for the taking of evidence when such a request is considered contrary to the fundamental principles of law of the Member State of the requested court.

21. The referring court noted that the grounds for refusing to apply Regulation 2020/1783 are listed exhaustively in Article 16 thereof, and, therefore, Article 12 does not contain a further ground for refusing to apply that regulation. However, that court also expressed concerns that such an interpretation of Article 12 means that there is no safeguard protecting...