Revocation of enforceability as a ground for non-execution of a German Vollstreckungsbescheid in Greece
The Thessaloniki CoA granted an appeal against a
decision declaring a German payment order enforceable on the ground that the
foreign order was deprived of its enforceable character [Thessaloniki CoA
1927/2012, Armenopoulos 2013, p. 1503].
The facts. A Vollstreckungsbescheid was issued by the Stuttgart
Amtsgericht in 2003, ordering the appellant to pay the amount of 800.000 €. The
creditor (a German limited liability company) assigned part of the claim to its
administrator, who then sought to declare the German order enforceable in
Greece for the amount assigned. The Veria 1st Instance Court granted
enforceability [Veria 1st Instance Court 174/2008, unreported]. The judgment
debtor lodged an appeal before the Thessaloniki CoA pursuant to Art. 43
Brussels I Regulation. He challenged the enforceable character of the German
order, supporting his request to a 2008 decision of the Stuttgart Landgericht,
by virtue of which the order’s enforceability was revoked, and the judgment
creditor was obliged to return the writ of execution to the court.
The ruling.
The court engaged in a long
narrative, listing Art. 32-45 of the Brussels Regulation in full length. It
then reiterated the dispositive part of the Stuttgart Landgericht, noting that
this judgment (which was final and conclusive) was already recognized in Greece
on the initiative of the appellant [Veria 1st Instance Court 262/2010,
unreported]. Given the above, the court stated that no declaration of enforceability
is acceptable in Greece, if the order lacks enforceability in the state of
origin, following a successful remedy by the debtor/appellant.
Comments. Art. 45.1 Brussels I Reg. makes clear
reference to the grounds of refusal specified in Articles 34 and 35. So, the legitimate
question goes as follows: Is the judgment debtor allowed to invoke lacking
enforceability of the foreign judgment, in spite of the exclusive character of
the wording in Art. 45.1? Greek scholars unanimously answer the question in the
affirmative: the issue of enforceability of the foreign title is to be examined
de novo, in line with Art. 38.1 Brussels I Reg., even if not mentioned
literally in Art. 45. However, this
has been the first case where a Greek court was confronted with such facts. It
goes without saying that the ruling of the Thessaloniki CoA was correct [similarly
in Germany, see Rauscher/Mankowski, EuZPR/EuIPR
(2011) Art 38 Brüssel I-VO Rn 14b; see also Magnus/Mankowski/Kerameus,
Brussels I Regulation (2nd ed. 2012, art. 38, note 10]. Thus, the
decision sets a valuable precedent and should be taken into account in the future
implementation of the Brussels Regulation (Nr. 1215/2012).
Labels: Brussels I Regulation