No application of Brussels I Regulation for the enforcement of a Belgian judgment in Greece
The Thessaloniki 1st Instance court was asked to declare enforceable a Belgian labor court decision which ordered the compensation of a Social Security institution against an insured individual on the grounds of illicit granting of sickness benefits. The court considered that the nature of the case falls under Article 1.2 (c) Brussels I Regulation. Therefore, it examined the application under the pertinent provisions of the Greek Code of Civil Procedure.
[Thessaloniki 1st Instance court, Decision Nr. 7606/2012, published in: Armenopoulos 2015, pp. 1169 et seq.].
The
facts:
The applicant is described as a Belgian company
embedded in the social security system of the country, being one of the respective
national unions. It produced a judgment of the Tongeren labor court (Nr. 615/2010)
by virtue of which G.V. was ordered to return to the applicant the amount of 21.442,78
Euros, a sum illicitly received as sickness allowance within a period of two
years. The applicant requested the declaration of enforceability.
The
ruling:
The Thessaloniki court referred initially to
Article 1 Brussels I Regulation, focusing on Para 2 (c), i.e. the social
security matters exclusion. It then proceeded with the analysis of the
provision, referring to the Evrigenis/Kerameus
Report. Returning to the facts of the case, it made use of Art. 337 Code of
Civil Procedure (Knowledge of foreign law), in order to verify whether the sick
benefits branch falls under the scope of the Belgian social security system. In
particular, the court confirmed that the above branch is governed by the
National Sickness and Disability Social Security Organization (INAMI).
Consequently, the court concluded that the Belgian judgment was rendered in the
course of a dispute concerning social security matters. Therefore, given that
the Brussels I Regulation does not apply pursuant to Article 1.2 (c), and that
no other bilateral or multilateral convention covering the above matters exists
between the two countries, it examined the application in accordance with
domestic rules, i.e. Articles 323 Nr. 2-5 & 905 §1-3 CCP.
The conditions for enforcement are the
following:
Article 323. Subject to the provisions of
international conventions, a judgment of a foreign civil court is given res
iudicata effect in Greece without any proceedings, if … 2) the case was
subjected to the jurisdiction of the courts of the state, to which the court
which rendered the judgment belongs; 3) the losing party has not been deprived
of its right of defence and generally its right to participate in the
proceedings, unless it has enjoyed equal opportunities to nationals of the
country, whose court rendered the judgment; 4) the foreign judgment is
inconsistent to a domestic judgment issued in the same case and being binding
for the same parties; 5) the foreign judgment must not be contrary to morality
or public policy.
Article 905.1. Subject to the provisions of
international conventions, enforcement of a foreign instrument may be carried
out in Greece as from the time such instrument is declared enforceable by a
decision of the Single-Member Court of First Instance of the debtor’s domicile,
or, in its absence, of the debtor’s residence, or, in the absence of both, of
the country’s capital. The Single-Member Court of First Instance shall follow
the procedure of articles 740 to 781. 2. The Single-Member Court of First
Instance shall declare the foreign instrument as enforceable on the condition
that it is enforceable according to the law of its origin and is not contrary
to morality or public policy. 3. If the foreign instrument is a court decision,
the conditions laid down under Article 323 Nrs. 2 to 5 must also be met.
Based on the provisions aforementioned, the
court stated that the Belgian judgment is enforceable, since it bears the executory
formula (seal of the King of Belgium, Albert the 2nd); the Belgian
court had jurisdiction to try the case, because the defendant was a resident of
Belgium at the time the judgment was rendered; the respondent was not deprived
of his audience rights, because it is evidenced by the foreign judgment that he
was represented by an attorney at law; no judgment is rendered by, or a claim of
a similar nature is pending before Greek courts; finally, no violation of Greek
public policy results from the declaration of enforceability of the Belgian
judgment in question.
Comments:
Prima facie one
may think that the judgment is unworthy of reference, given that the Brussels I
Regulation has been substituted by the Brussels I bis Regulation, in force
since January 10, 2015. The counterargument lies in the following facts:
i.
The Brussels I Regulation will continue to apply
for a transitional period; Pursuant to Article 66.2 Brussels I bis Regulation, “…
Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal
proceedings instituted, to authentic instruments formally drawn up or
registered and to court settlements approved or concluded before 10 January
2015 which fall within the scope of that Regulation”.
ii.
This is the first decision in Greece applying Article
1.2 (c) Brussels I Regulation, and I found only one more judgment of a German
court on the matter [LAG Frankfurt a.M. 12.02.2007, IPRax 2008, 131; see also Eichenhofer, IPRax 2008, 109 et seq.].
iii.
The ruling should be additionally examined under
the Brussels I bis Regulation, in terms of a potential ground for confusion in
the enforcement stage. In particular, bearing in mind that “a judgment given in
a Member State which is enforceable in that Member State shall be enforceable
in the other Member States without any declaration of enforceability being
required” [Art. 39], there is no court examining whether a foreign judgment
falls under the scope of the new Regulation. It is reminded that pursuant to
Art. 42.1 “for the purposes of enforcement in a Member State of a judgment
given in another Member State, the applicant shall provide the competent
enforcement authority with (a) copy of the judgment which satisfies the
conditions necessary to establish its authenticity, and (b) the certificate
issued pursuant to Article 53, certifying that the judgment is enforceable and
containing an extract of the judgment as well as, where appropriate, relevant
information on the recoverable costs of the proceedings and the calculation of
interest”.
The competent authority in Greece is the bailiff. In other words, the
bailiff will be in charge in the enforcement stage, given that no exequatur is
foreseen. An intervention by a domestic lawyer, presumably more knowledgeable in
the issue at stake, is not provided by the Regulation. Hence, if the bailiff
receives the certificate of Art. 53, it is not expected that he will proceed to
any further scrutiny as to the nature of the case.
Moreover, we should also question whether the judgment debtor would be
entitled to challenge the enforcement in the course of his application to
refuse the judgment under Art. 45 et seq. Brussels I bis Regulation, and if so,
under which ground for refusal.
Labels: Brussels I bis Regulation, Brussels I Regulation, Greek Code of Civil Procedure