Refusal to accept Greek proceedings by a Greek living in Germany (Art. 8 Service Regulation)
A judgment rendered last year by the Thessaloniki 1st Instance
Court is expected to give rise for new comments on the right of the recipient
to refuse documents from abroad. The interesting part of the ruling is that the
respondent refusing to receive the claim was of Greek nationality, living in
Germany.
THE FACTS: The parties are a Greek bank (the claimant) and a Greek
debtor living in Germany (the defendant). The claimant initiated compensation proceedings
before the Thessaloniki Court of 1st Instance, in order to obtain an
enforceable title covering the remaining unpaid sum. The claim was filed with
the court and a hearing date was set, as it was the case in accordance with
procedural provisions in force until 31.12.2015[1].
Following the above, the claimant served the claim to the Thessaloniki Prosecutor’s
Office, the latter being the Transmitting Agency officially declared by the
Hellenic Republic. At the hearing date, the claimant submitted three documents
in this respect:
a) A
true copy of the certificate of service to the Prosecutor’s Office by a competent
Greek process server.
b) The
original of the standard form issued in accordance with Art. 4 Para 3 Service
Regulation.
c) The
standard form issued in accordance with Art. 10 Service Regulation, where it
was noted that the recipient refused acceptance of the document.
The defendant was in default of proceedings.
THE RULING: The court dismissed the hearing of the action[2]
as inadmissible. It founded its ruling on several provisions of the Service
Regulation (Articles 5, 8, 10 and 19). It was clear that the claim was served
without a translation in German, i.e. the official language of
the Member State addressed. Hence, the court focused especially on
Article 8 Para 1 (b) Service Regulation, and decided that the addressee
(defendant) did not understand the language of the Member
State of transmission (Greek). The foundation upon which the court based its
judgment was the following:
a) The
defendant’s refusal to accept the document recorded in the standard form
aforementioned was not justified; however, it is presumably connected with the inability
of the defendant to understand the Greek language.
b) The
claimant failed to produce any correspondence between the parties related to
the subject matter in the Greek language.
c) The
loan contract was not signed by the defendant; he appointed a proxy for this
cause.
Finally, the court emphasized
that the claimant could have served a fresh copy of the claim, this time with
an attached translation; however, he failed to so.
For the above reasons, the
Thessaloniki Court of 1st Instance dismissed the hearing of the action
as inadmissible.
COMMENTS: There has been pretty much discussion about the right of
refusal established in Article 8 Service Regulation. Starting with the Leffler case of the CJEU [Case C-443/03],
the claimant had the chance to secure that the hearing takes place, by sending
a translation of the claim. Secondly, the CJEU has recently clarified that ‘the
fact that that agency, when serving a document on its addressee, fails to
enclose the standard form set out in Annex II to Regulation
No 1393/2007, does not constitute a ground for the procedure to be
declared invalid, but an omission which must be rectified in accordance with
the provisions set out in that regulation’ [case C‑519/13, Alpha Bank Cyprus Ltd].
It has not been mentioned in the judgment whether the Greek agency did enclose
the above standard form or not. This is however a secondary matter in the
present case, since the defendant managed to exercise his right of refusal.
Last but not least, the CJEU
has clarified in the case Ingenieurbüro Michael Weiss und Partner GbR
[Case C-14/07], that ‘Article 8(1)(b) of Regulation No 1348/2000 is to be interpreted as meaning that the fact that the
addressee of a document served has agreed in a contract concluded with the
applicant in the course of his business that correspondence is to be conducted
in the language of the Member State of transmission does not give rise to a
presumption of knowledge of that language, but is evidence which the court may
take into account in determining whether that addressee understands the
language of the Member State of transmission’. Without referring to the above ruling, the Thessaloniki court took into account
the surrounding circumstances of the contract, and concluded that the fact that
it was drafted in Greek[3] does
not give rise to a presumption of knowledge of that language, because (as
stated above) no correspondence in Greek has been produced to the court by the
claimant. Finally, no direct involvement of the defendant was proven, both in
the pre-contractual phase, as in the day the contract was signed, since he was
represented by a proxy.
To sum up, it was probably the inaction of the claimant which triggered
the court to decide in favour of the defendant. The lesson learned by this
ruling is that it takes more than a default party and a complacent presumption
that all Greeks understand Greek to win a case.
[1]
The 2016 reform has modified vastly the pre-trial phase in ordinary proceedings:
previously the claimant was serving proceedings only after the hearing was
scheduled; by virtue of the new system service takes place after filing and
before scheduling the hearing date.
[2]
i.e. not the action itself. In the latter case, the plaintiff is obliged to
file a new claim, whereas in the former he only needs to summon the defendant,
once the vice has been healed.
[3]
It is not stated in the judgment whether there was a clause such as the one mentioned
in the Ingenieurbüro Michael Weiss und Partner GbR case.
However it is common sense that any following correspondence would have to be
drafted in the language already selected for the contract.
Labels: Service Regulation