Friday, 31 January 2014

Serving Greek Proceedings to US defendants - A case law survey

I will focus on reported case law regarding service of Greek proceedings to defendants / litigants living or having their seat in the USA.

I.                    Greek courts have refused to render a default judgment under the following circumstances:

a)      When the claimant produces to the court solely the certificate of service to the competent (Greek) Public Prosecutor’s office[1] [Supreme Court 250/1993, 657/1995, 835/2007, CoA Larissa 740/2008, CoA Patras 453/1993].
b)      When the claimant does not produce a certified translation of the US certificate of service, i.e. he only includes the original or a true copy with no Greek translation [1st Instance Multi-Member Court Samos 25/2012].
c)      When the document reaches the US competent authority or the defendant after the day of the hearing [CoA Athens 734/1992, 1st Instance Multi-Member Court Amfissa 105/1992].
d)      When domestic time limits for the appearance of the defendant before court have been violated[2]. In this case, even if the claimant produces the US certificate of service and a Greek translation attached, the hearing will be adjourned, and fresh service is required [Supreme Court 1566/2010].
e)      When the claimant surreptitiously opts for fictional service or service by publication[3], without scrutinizing the possibilities for using conventional methods of service [Supreme Court 503/2011 &, CoA Piraeus 730/2008]. However, if the claimant exhausts the latter with no result, he’s allowed to proceed to the former [1st Instance Multi-Member Court Athens 449/2004]. Hence, a successive option is legitimate [1st Instance Court Thessaloniki 38292/2009 & 20721/2010].

II.                  On the other hand, Greek courts rendered a default judgment under the following circumstances:

a)      When six months have passed since the day of transmission, according to Article 15 Para. 2 b of the Service Convention, even if the document has been sent back to Greek channels as undeliverable [Supreme Court 851/2007 & 433/2001].
b)      When the claimant opts for service based on US statutes (in application of Article 137 Greek CCivP, which allows this form of service) [CoA Athens 223/2012.
c)      When the claimant opts for service to a legally appointed proxy in Greece, thus avoiding service of process to the US [Supreme Court 909/2004, CoA Dodecanese 200/1998, CoA Larissa 474/2006].

Finally, serving documents instituting proceedings in first and second instance, or even to the Supreme Court, are within the field of application of the Service Convention, unlike other documents beyond the claim (summons for sworn statements, writs of attachment, etc), where domestic law prevails [Supreme Court 1658/2009, 266/2004, 1447/1988, CoA Dodecanese 81/2008 & 234/2005 ].

[1] According to Article 134 Greek CCivP, for the purposes of serving foreign defendants, documents are to be served to the Public Prosecutor of the competent court, who is entrusted with forwarding the document to the Ministry of Foreign Affairs. From there, the document will be transmitted to the Receiving Agency of the respective country, in order to be delivered to its actual recipient.
[2] According to Article 229 Greek CCivP, the claim has to be served 90 days before the hearing.
[3] According to Article 135 Greek CCivP, persons of unknown residence are to be served in a fashion similar to the particulars of Article 135 Greek CCivP, plus its publication in two newspapers (one in Athens, the capital, the second in the venue of the court).



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