Unjustified Interruption of the Taking Evidence by the Court of Origin as a Ground to Refuse Cross-Border Enforcement Under the Brussels I Rules

The contribution examines a recent decision by the Italian Corte di Cassazione rendered in matters of recognition and enforcement of foreign judgments issued in other European Union Member States. By analysing the reasoning of the Italian Corte di Cassazione in the application of the public policy test as a ground to refuse enforcement in Italy of a Polish ruling, the Corte di Cassazione ’s methodological approaches are scrutinised against the background of the founding principles of mutual trust and free movement of decisions in the European judicial space. The conclusions of the Italian Corte di Cassazione are supported as it emerges from the commented decision that the public policy exception is applied in such a way to avoid an application that would go beyond its scope and purpose. More specifically, the circumstance a foreign decision has been adopted without an evidence being taken has not been considered to be in violation of a general substantive “right to evidence,” whilst it has been deemed that, in relevant fields of life, the lack of taking of an evidence already admitted to trial by the court of origin does constitute a breach of a (constitutionally protected) procedural fair trial in Italy.

(Paragraph 8) The pleas all relate to the manner in which the trial held in Poland was actually conducted and concluded with the judgment of the Tarnow court in favour of the recognition of natural paternity. It is pointed out, in particular, that the Polish court -since defendant did not appear at the hearing (allegedly because of the excessive and unlawful shortness of the time of service), the Court of Poland decided in May 2003 to delegate to the Italian Tribunale di Nola the task of examining the defendant and, in the event of the defendant's failure to acknowledge paternity, to appoint an expert witness to carry out certain haematological examinations. The Italian Court was subsequently contacted from the expert witness who, amongst others, exposed the impossibility of carrying out the blood test as requested by the order of the Court of Tarnow, since they are tests that are obsolete and do not correspond to the blood tests currently used in Italy for the recognition of paternity. The Tribunale di Nola requested precise directives to the Polish Court regarding the haematological examination to be carried out.
A recognition of paternity has been delivered by the Polish Court, without any further coordination with the Italian authorities concerning the taking of evidence.
unjustified interruption of the taking evidence The Italian Review of International and Comparative Law 1 (2021) 392-404 (Paragraph 12) The party's view is that there has been a breach of public policy in the mere failure to carry out the dna test, despite his declared willingness to do so, cannot be shared.
The high evidential value of dna testing has been repeatedly emphasised by the case-law of Court, especially when assessing the alleged father's refusal to undergo such a test. The refusal has been held to have "such a high circumstantial value" that it "alone allows the application of recognition of paternity to be considered well-founded".
The point is, rather, that this evidentiary tool is included in a system which places at its centre the principle of the judge's free interpretation under article 116 of the Code of Civil Procedure.
Nothing in principle precludes that the proof of natural paternity may also follow paths completely different from those traced -negatively, as well as positively -by the dna test.
(Paragraph 13) On the other hand, the appellant's second ground of appeal, alleging breach of procedural public policy, is to be shared. In the foreign proceedings, proof of paternity by dna test, following the request for a letter rogatory, had become part of the proceedings that were taking place.
The defendant had declared his willingness to carry out the test and the order of the Tribunale di Nola was interlocutory in nature: as a matter of fact, the dna test was being carried out.
There is no justification -from the point of view of the "fundamental guarantees" and the defendant's right to defence -for interrupting the taking of evidence.
Even less could such an interruption be justified as the defendant was not given any supporting reasoning (either in the body of the judgment subsequently delivered or in any other separate document).
If, under the current (Italian) system, the court may also "revoke" an already admitted evidence, this must be done before the commencement of their taking, by means of an ad hoc measure and provided, above all, that the "revocation" is "rational and justified and therefore adequately motivated […]".
(Paragraph 14) It must thus be concluded with the following legal principle: "The foreign decision concerning sensitive issues (such as a paternity test) rendered during a proceedings where there has been an unreasonable and unjustified interruption of the taking of an already admitted evidence, even more so where the defendant declared its intention to take dna tests, is apodictic and unreasonable".

Preliminary Remarks
The historical and procedural facts underlying the judgment of the Corte di Cassazione1 are relatively straightforward. In Poland, a paternity relationship was judicially established and, consequently and subsequently, the Polish territorial court ordered the father to pay monthly sums to his child. The Italian Ministry of the Interior, in its capacity as intermediary authority within the meaning of the 1956 New York Convention on the Recovery Abroad of Maintenance,2 applied for enforcement of the Polish decision in so far as it required the father to pay the sums in question.
Before analysing the grounds of non-recognition and non-enforcement invoked by the debtor and the criteria applied by the Italian courts in the case at hand, it is worth briefly lingering on the relevant applicable instrument governing the free movement of decisions. As is clear from the judgment of the Italian Corte di Cassazione, the substantive decision of the Polish court was rendered in 2007, following which the Italian Ministry, on an unspecified date, requested the enforcement of the foreign measure. The Italian decree ordering the enforceability of the Polish decision was issued in 2017 by the Corte d' Appello di Napoli. This was subsequently challenged and then recourse before the Cassation was filed.
At the time the Polish decision was rendered, the European Union law instrument governing the free movement of decisions in civil and commercial matters was the Brussels I Regulation -Regulation 44/2001.3 As is well known, this instrument also included within its material scope of application, maintenance obligations, in respect of which a specific forum, alternative to the general one, was specifically identified in Article 5(2). The applicability of the Brussels I rules on free movement of decisions have not been affected by the subsequent entry into force and applicability of both Regulation 4/2009,4 specifically devoted to maintenance obligations, and the Brussels I bis Regulation.5 With reference to the former, and even though this constituted lex specialis with respect to the Brussels I Regulation, the same Regulation 4/2009 specified that its own regime for the movement of judgments is applicable to decisions given in the Member States before the date of application of the instrument if the declaration of enforceability has been requested after that of applicability of the regulation.6 Assuming that the request for enforceability of the 2007 Polish decision has been submitted by the Italian Ministry before the applicability of Regulation 4/2009, the relevant instrument to govern the topic has remained the Brussels I Regulation.7 Not even the 2012 Brussels I bis Regulation Recast, as mentioned, has changed the legal framework governing the recognition and enforcement of the Polish decision. The Brussels Recast, that -as known -established an advanced regime providing for direct enforceability of decisions, precisely due to this sensitive innovation, is only applicable to decisions rendered in the contexts of proceedings started after the applicability of the instrument itself8 (i.e., 10 January 2015). In this sense, as emerges from the above, as a preliminary remark, one has to conclude on the correctness of the instrument that has been applied by Italian courts in the enforceability procedure. Additionally, it must be stressed that the circumstance that the "old" Brussels I Regime has been applied, in no way negatively affects the relevance of the decision on  public policy delivered by the Italian Corte di Cassazione. Such a ground to refuse recognition and enforcement of foreign decisions is, in fact, known in many and diverse EU law instruments of international civil procedure9 (and as a matter of general principles, in light of the history of the Brussels Recast, does not seem destined to be abandoned10). As the public policy constitutes an "horizontal" exception to the free movement of decisions, the commented Italian judgments will be able to further shed light on the domestic application of the exception in general, also in fields not directly touched upon by the Corte di Cassazione in the case at hand.

Public Policy, Fair Trial, and Unreasonable Revocation of Evidence: The Decision of the Italian Corte di Cassazione
Assuming that in traditional public international law there is no clear obligation on States to recognise and enforce foreign judicial measures, which are the expression of the authoritative power of the legal order whose courts settle the dispute between parties, the possibility of enforcing foreign judgments is 398 more or less conditioned by the rules in force in the requested State.11 At the same time, with a change of perspective, some obligations concerning recognition and enforcement of foreign decisions might derive on States from human rights law treaties and fundamental human rights in general, as the question of 'movement' of rights incorporated in judgments is strictly connected with the right to an effective remedy.12 As is well known, in the construction of an integrated European judicial space, the European Union has adopted specific, albeit sectoral, rules to govern the cross-border recognition and enforcement of decisions in civil and commercial matters. Although there is no single model valid in every sector, and it is not yet possible to speak of a full faith and credit clause between Member States with a general and absolute value as could be found in some federal systems,13 the method and approaches used in the European Union enhance the principle of mutual trust between Member States and are characterised by an openness of national systems to "European" decisions.14 An openness which, although functional to the creation of the internal market to the extent that it has been argued by some scholars that the free movement of judgments constitutes the "fifth fundamental freedom" of the European Union,15 cannot be absolute and devoid of any form of control by the requested Member State. With reference to the 'Brussels I system' ,16 the Member State requested of recognition and enforcement has the possibility, under certain strict conditions, to exert some control over the foreign decision in order to refuse its recognition and enforcement where the interested party invokes the existence of one or more grounds of refusal permitted by secondary EU law. Among these exhaustive grounds for non-recognition and non-enforcement, the limit of public policy remains.17 If the recognition or enforcement of the foreign judgment, rather than the judgment as such, is contrary to the public policy of the requested Member State,18 this may refuse to recognise and enforce the foreign judgment, at least with respect to those passages and parts contrary to the fundamental principles of the lex fori. The complexity of the hermeneutical operation judges are called upon when assessing possible violations of the public policy remains undisputed. 19 Precisely because of the constraints imposed by European Union law, the exception in question cannot constitute a means of reassessing the jurisdiction of the court of origin,20 and the investigation needed to determine breaches of public policy must be weighed against the prohibition on reviewing a foreign judgment,21 a principle that is fundamental in the construction of an integrated European judicial space.
In the case dealt with by the Italian Corte di Cassazione, the debtor argued his rights of defence had been violated on the ground that the court of origin had not taken the evidence initially admitted to trial. More specifically, the Court of origin ordered the taking, in Italy and in application of the Taking of evidence Regulation,22 of the defendant's blood to determine the existence of a parental relationship. The expert, appointed by the local Italian court, raised the inadequacy of the evidence requested in comparison with biological evidences usually obtained in Italy for the same purposes, thus requesting indications from the Italian judiciary which, on an interlocutory basis, sent the documents to Poland and awaited further instructions. In the face of the attempted coordination between judges, the Polish court proceeded to judgment without making further requests to Italy and, therefore -in the absence of any blood evidence -judicially established the existence of the parental relationship condemning, to that effect, the father to pay a sum of money.
The debtor considered that the Polish court's failure to take evidence constituted a violation of the EU Regulation on the cross-border taking of evidence, as well as a breach of the fundamental right of defence violating both the substantive and procedural public policy in that the decision was exclusively based on the evidence and declarations offered by the mother in the original proceedings.23 By reforming the previous decision of lower Italian court that dismissed the challenges of the debtor, the Italian Corte di Cassazione has dwelled on the lack of taking of evidence and the Italian public policy exception to ultimately support (some of) the debtor's arguments and deny enforcement of the Polish decision in respect to the payment of alimony.
Firstly, the Corte di Cassazione excludes a violation of the Italian substantive public policy in so far as -in general terms -the debtor invokes his right to present to the court a specific evidence, namely dna. Despite the importance a specific evidence might acquire, although there is a fundamental right to defence in the Italian legal system, the Corte di Cassazione rationalises the principles of the system by emphasising that, in Italy, the judge's persuasion is free and not linked to some predetermined value attributed to an evidence, whether this is typical or atypical. This means, according to the Court, the right to defence does not grant individuals with a general and abstract right to have a specific evidence admitted to trial.24 Secondly, notwithstanding the absence of an abstract absolute substantive right to present any evidence deemed useful, the Corte di Cassazione considers that there had been a breach of the rights of defence in this case. This was not so much because the debtor had not been given the opportunity to invoke an abstract substantive right to present a specific evidence, but rather because the admission at trial of the blood evidence ordered by the Polish court had "brought" that evidence (and the effective right to that evidence) into the trial. In other words, the debtor's right had moved from the abstract substantive plane, into the concrete practical procedural field. In this sense, once a specific evidence is admitted to trial, preventing -in law or in fact -one of the parties from having recourse to that specific evidence constitutes a violation of the Italian public policy, namely constitutional principles of due process of law and fair trial.25 An exclusion of a previously admitted evidence, although possible, must necessarily be motivated by the judge given that the evidence has become available to the parties. Since the Italian courts did not refuse to take the blood evidence, as they merely requested further instructions by means of interlocutory orders, and given that the party concerned did not refuse to submit to the blood evidence, the adoption of the decision on the merits by the Polish court without having taken the evidence previously admitted to trial, and without stating any reasons on the point, constituted a violation of the party's effective rights of defence and, consequently, of the constitutional principles of due process of law.
Based on these considerations, the Italian Corte di Cassazione thus concluded that, with regard to the enforceability of foreign judgments related to an important asset of life (such as the establishment of biological paternity), the judgment based on an apodictic reasoning is not enforceable, for example 24 On the different issue of the admission of evidences allowed by the foreign law rather than by the lex fori processus, see Fiore, Diritto internazionale privato, Torino, 1889, p. 220 ff. 25 Salerno, "La costituzionalizzazione dell'ordine pubblico internazionale", cit. supra note 17, p. 259.

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The Italian Review of International and Comparative Law 1 (2021) 392-404 when the foreign judgment is given after having admitted and then unreasonably withdrawn the dna evidence.

Comments and Conclusive Remarks
The decision of the Corte di Cassazione in the case at hand should be agreed with both in terms of method and conclusion.
With reference to the method adopted to determine the existence of a violation of the Italian public policy, or a lack thereof, on the one hand the Corte di Cassazione has correctly adopted a narrow interpretation of public policy as exception to the free movement of decisions. On the other hand, the ruling implicitly confirms that diverging regimes of taking and evaluating evidence in the various Member States are not in themselves sufficient to establish a breach of public policy. Just as in the past it has been accepted that English measures convicting a defendant in default of appearance for ficta confessio are not necessarily incompatible with the Italian public policy,26 in the present case there are no particular (Italian) conditions imposed to the foreign judge's evaluation of the evidence admitted at trial, provided that the foreign decision is compatible with the due process of law.
Additionally, with regards to the relationship between the public policy exception and the prohibition of the requested court to review the foreign decision, scholars27 have noted that, due to this relationship, recourse to the public policy exception is in practice limited. As a matter of principle, the Court of Justice of the European Union has given guidelines on the point. In the Court's eye, "[r]ecourse to the public-policy clause […] can be envisaged only where recognition or enforcement of the judgment delivered in another [Member] State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental principle. In order for the prohibition of any review of