Friday, 26 August 2016

No application of foreign law in Greek summary proceedings

A judgment rendered early this year by the Thessaloniki 1st Instance Court continues in the line followed by a series of earlier decisions, which apply domestic law even when foreign law should have been applied, in accordance with the Rome II Regulation 
[Thessaloniki 1st Instance Court Nr. 126/2016, published in the data base ISOCRATES (Athens Bar Association)].

THE FACTS: The applicant is a Romanian citizen, living in Craiova. He is a driver by profession, working in the field of transportation. The 1st defendant is also a citizen and resident of Romania, actually a colleague of the applicant. In the course of their occupation, they were ordered to load a quantity of fruits from Greece and return to Romania. The defendant was sitting on the wheel, while the applicant was in the third (back) seat. On their way back and within the administrative region of Thessaloniki, an accident occurred. The defendant lost control of the vehicle and crushed the track outside the highway. As a result, a third person within the track (sitting next to the driver) was killed, and the applicant was severely injured.
The applicant initiated summary proceedings against the driver (1st defendant), the owner of the vehicle, and the Motor Insurers’ Bureau (M.I.B.), which is a legal entity of private law based in Athens, supervised by the Bank of Greece. He requested damages for economic loss and additional expenses caused because of the accident. At the hearing, the applicant withdrew the proceedings with respect to the driver and the truck owner.

THE RULING: The Thessaloniki court assumed jurisdiction on the grounds of Article 3 in conjunction with Article 35 Greek Civil Procedure, i.e. the provisions granting international jurisdiction to the place where the harmful event occurred. It then examined the issue of applicable law. In this respect it referred to the Rome II Regulation, on the law applicable to non-contractual obligations. It first mentioned Article 4.1, by repeating its wording. Then it went forward, invoking Article 4.2 Rome II Regulation, which reads as follows: where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. The court underlined that it has no discretionary powers as to its application, i.e. it is obliged to apply the above provision, unless it is satisfied that the escape clause of Art. 4.3 Rome II Regulation should prevail.
In light of the above, the Thessaloniki court concluded that by applying Art. 4.3, the case is more closely connected with Romania: Both the driver and the victim are Romanian citizens living in Romania; the vehicle is registered in Dolj county, Romania; and the green card was issued by Romanian authorities. Hence, Romanian law should be applied in the case at hand. However, due to the urgency of the matter, the court opted for the application of Greek law, because it was not aware of the pertinent provisions under Romanian law, nor it was possible for the court to become aware of it on short notice, i.e. without ordering the production of relevant evidence, thus delaying excessively the pending proceedings.
For the reasons stated above, the Thessaloniki court proceeded to the examination of the merits, applying fully and exclusively domestic law.

COMMENTS: Two points deserve some closer look in the decision of the court.
1.       Although the court was right in accepting its jurisdiction, its omission to refer to the provisions of the Brussels I bis Regulation leaves a bitter taste in regards to the preparedness of Greek courts to examine cases with cross border elements on the basis of the proper / applicable regime.
2.       On the other hand, the court was much more knowledgeable regarding the conflict of laws rules of Rome II Regulation. The analysis made by the court with respect to Article 4 was impeccable. What probably strikes the attention of the reader is rather the end-result, i.e. the application of Greek law for the reasons stated above. This is however a path followed almost religiously by Greek courts over the last decades. In most of the decisions reported, the courts include an additional argument, namely that the foreign law would presumably not deviate significantly from domestic legislation.
Legal scholarship supports almost unanimously this position. There are only some suggestions, that courts should exploit all available means and exhaust all possible sources of information, especially by making use of technological tools, in order to reach foreign law provisions applicable in the case under dispute.
A final remark on this point would go towards the direction of Article 14 Rome II Regulation. The court omitted to make reference to Art. 14.1 [freedom of choice by the parties]. It is not clear by the text of the judgment, whether the parties invoked Greek or Romanian law. Usually Greek lawyers tend to refer to the provisions of their jurisdiction, as most probably done by other colleagues around the globe. Hence, if no issue of applicable law was raised by the parties, the court could have easily apply directly domestic law, without passing through the thorny corridors of Article 4 Rome II Regulation.