The Dekagram: 13th October 2025

With the advent of Autumn, accompanied – for those who like that sort of thing – by Claudia Winkleman and friends hamming it up in Celebrity Traitors, the team are in the mood for the Eerie. And Thomas Yarrow has just the thing: a sinister tale from the Court of Justice of the European Union guaranteed to have you looking over your shoulder and wondering whether Brexit might yet come back to haunt us. Enjoy!

The Recast (unearthed?) Evidence Regulation – Aucrinde

Although a bit early for Hallowe’en, a spooky opinion was issued by the CJEU’s Advocate General last month to the effect that it was perfectly fine for one Member State (Italy) to insist on another (France) digging up their graves.

Well, that is a rather sensationalist way of putting it, and perhaps the spin which in the golden era of free-wheeling Brexiteering one might have seen it written up in the UK papers. But the Opinion I am referring to (Case C‑196/24 Aucrinde) is one of interest to the curious UK neighbour working in the field of cross-border litigation and worth noting by practitioners who find themselves all too frequently tangled up in issues of taking evidence from other jurisdictions. Depending on political persuasions, readers may differ whether this rehearsal of the harmonisation of international civil judicial cooperation in the EU is, or is not, a Good Thing.

In brief, in proceedings in Italy there arose an issue of contested paternity. The applicant in the underlying case sought to establish that his biological father was a person who was now deceased and buried in France. The legitimate children of the deceased requested a genetic examination be performed on the body so that the applicant’s genetics could be compared.

The Italian court acceded to the request and made a request to the French authorities for the exhumation of the deceased’s body in order for the examination to be performed by an expert. The request was made under the Regulation 2020/1783 – the “recast” Evidence Regulation (to whose predecessor the UK had erstwhile been a party).

In France, however, substantive law forbade exhumation of deceased persons for genetic testing such as this, unless the deceased had pre-emptively consented to such during their lifetime (which he had not). The French authorities therefore referred to the CJEU, for guidance as to whether it was permissible to refuse Italy’s requests. There were two questions: first, whether Article 12 of the recast Evidence Regulation permitted refusing the request where the proposed procedure was contrary to fundamental principles of national law; second (in terms) whether the European Charter on Fundamental Rights did not permit of an interpretation of the recast Evidence Regulation which would allow exhumation in these circumstances without prior consent.

Advocate General Tamara Ćapeta in her Opinion has now suggested the CJEU answer both questions in the negative. She distinguished between the ‘direct’ and ‘indirect’ taking of evidence with the former being refusable on grounds of public policy, but with there being no equivalent ground of refusal of the latter. In this case, in her view the request was for indirect taking of evidence, as the exhumation and sampling would be under the control of the requested (French) authorities.

In those circumstances, although she accepted the language of the Regulation was not ‘very clearly expressed’,the question of legality was to be assessed by the requesting (i.e. Italian) State in court accordance with its own law and not in accordance with the law of the requested State (France). While French procedure was relevant, French substantive law was not applicable – and the French authorities could not question the legality of the decision of the Italian court, but must act as if it is valid, and must therefore execute that request.

In respect of the second question, her view was that the Charter does not strictly preclude post-mortem genetic testing without consent. It was a matter for each Member State how to balance the competing rights of the deceased and the person who was seeking to determine their origin, and the fact that Italy and France in their respective national laws had set the balance in different ways did not mean that the request was contrary to the Charter.

Interestingly, however, the Advocate General did make reference to an ‘exceptional situations’ test which does not appear on the face of the Regulation. She left room for a scenario where a requested State (e.g. France) could question the legality if there were systemic problems with the protection of fundamental rights in the requesting State’s (Italy’s) legal order (stage 1), and then whether there was a risk of infringement of a particular individual’s rights (stage 2). Clearly that is a very high threshold.

As English practitioners will know, from this side of the channel requests for the taking of evidence are done by way of the Hague (1970) Convention. That of course, does permit a requested state to refrain from complying with a request on public policy grounds in all circumstances. There can be little doubt that France would refuse a similar request to that in Aucrinde if it came from the UK. We’ll therefore have to chalk up the ability to insist on extraterritorial exhumation as an item in the Brexit loss column.

About the Author

Before coming to the Bar, Thomas worked as a Civil Servant, including as a policy advisor at the Brexit Department. His former experience gives him an encyclopaedic knowledge of legislation, treaties and international conventions in the field of Private International Law, which he has applied to his cross-border practice, building a reputation as a go-to barrister for complex questions of jurisdiction and applicable law. He wrote the relevant chapter on such in the latest edition of the leading practitioner textbook, Saggerson on Travel Law and Litigation. His travel practice spans cross-border personal injury, commercial disputes and consumer protection. He is listed in the Legal 500 as a Rising Star in the administrative law and human rights and personal injury categories, and as a leading junior in the law relating to sanctions. He is described by the Legal 500 as being ‘very sharp, with fantastic attention to detail’, and with ‘excellent knowledge of public law and human rights, with experience in a wide range of areas, from sanctions to cutting edge issues such as state use of facial recognition’.