On the significance of translation inaccuracies in the field of the Lugano Convention (and beyond…)

The Thessaloniki Court of Appeal dismissed the “appeal” lodged by a Greek debtor against the enforcement of a Swiss judgment on the grounds of Article 43.5 of the 2007 Lugano Convention. The appeal was filed timely, however not served to the appellee within the term provided by the provision above.

[Thessaloniki CoA, Decision Nr. 1042/2015, published in: Civil Procedure Law Review (Επιθεώρηση Πολιτικής Δικονομίας) 2015, pp. 351 et seq.].  

  ----------------------

The facts:

The parties are a judgment creditor living in France, and a judgment debtor, living in Thessaloniki. The former filed an application for the declaration of enforceability of a Swiss judgment issued by a civil court in the district of Sarine, Fribourg. The Thessaloniki 1^st Instance court declared the Swiss judgment enforceable in 2012. The Greek decision was served to the debtor on April 25, 2013. Five days later an “appeal” was filed with the court issuing the judgment, pursuant to Art. 495.1 Greek Code of Civil Procedure. Following a request of the “appellant” according to Art. 498.1 CCP, dated from May 14, 2013, the Thessaloniki CoA scheduled the hearing date (10.11.2014). The latter served the notice to appeal on September 25, 2014.

The ruling:

The Thessaloniki CoA provided a thorough analysis of the applicable rules. It referred to the 2007 Lugano Convention, mentioning nearly all articles of Sections I & II of Chapter 3 [Art. 32 et seq.] It then focused on the exequatur proceedings according to domestic provisions [Art. 905 Code of Civil Procedure], reiterating the predominant view in Greece, which considers the decision rendered by the 1^st Instance Court as a court order, i.e. not a judgment. According to the Greek version of Art. 43.5 Lugano Convention, the available means of attack against the declaration of enforceability falls under the category of remedies lodged in second instance, so called ένδικα μέσα. This rather unfortunate selection of words, so the court, should not be perceived as an appeal against the court order granting exequatur, even though Greece has indicated the Court of Appeal as the competent court pursuant to Annex III, referred to by Art. 43.2 Lugano Convention. The CoA acts in this particular situation as a first instance court, meaning that the party filing the remedy under Art. 43.5 Lugano Convention shall submit it to the CoA and serve it to the counterparty within the terms (one or two months depending on the facts) stated thereunder. Under normal circumstances, sheer filing at the CoA suffices, i.e. no service of process is needed for considering the lodging as concluded. However, the latter is not the case in the ambit of the Lugano Convention.

Following the above, the Thessaloniki CoA dismissed the “appeal” (as stated by the party filing the remedy) due to untimely service to the judgment creditor.

Comments:

This is undoubtedly an endemic problem caused by two factors: The first has been already mentioned, i.e. the inaccurate translation used in Art. 43.5 of the 2007 Lugano Convention. In the course of the last three decades, the Greek version of similar provisions in the field of judicial cooperation in civil matters is balanced between the terms recourse [in Greek: προσφυγή], and legal remedy in second instance [in Greek: ένδικο μέσο], the former being selected in Articles 36 of the 1968 Brussels and 1988 Lugano Conventions, Article 33 Brussels II bis Regulation, Article 32 Maintenance Regulation, whereas the latter chosen for Articles 43 Brussels I Regulation, Article 36 of the 2007 Lugano Convention, and Article 50 Succession and Wills Regulation.

The second factor is the persistent omission of the Greek Ministry of Justice to pass implementing legislation in the field, so as to clarify evident discrepancies and to streamline the EU texts with the domestic landscape. Unfortunately there’s no hope in sight: Not even after the entry into force of the Brussels I bis Regulation has been any effort visible towards the direction aforementioned.

Consequently, the problem is here to stay: Unexperienced lawyers in the field of International Civil Litigation will continue to resort to the traditional means of filing an “appeal” (as stipulated in Article 495.1 Code of Civil Procedure), i.e. by simply submitting the remedy to the CoA, being unaware of the fatal repercussions of their omission to serve it to the judgment creditor within the time limits provided by the EU Regulations and the Lugano Convention.

For further info on the matter, you could check the following articles:

Anthimos, Recognition and enforcement of foreign judgments according to the Brussels I bis Regulation in Greece, Yearbook of Private International Law, Volume 16 (2014/2015), pp. 345-364 = 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2782427

Anthimos, Exequatur proceedings according to the Brussels I Regulation in Greece, Revue Hellénique de Droit International 2014, pp. 1007-1021 =  

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712375