A limited liability company with its seat in
Ferizaj, Kosovo, filed an application for a payment order before the
Thessaloniki CFI [Thessaloniki CFI 20115/2012, Armenopoulos 2014, pp. 2019 et seq.]. Following service of the order, the
defendant filed an opposition, requesting that the order be declared null
and void, because the application has been filed by a legal entity founded
pursuant to the law of Kosovo, a region earlier belonging to the Federal
Republic of Yugoslavia, which has not been recognized by the Hellenic
Republic. As a consequence, this company has neither the capacity to be a
party in proceedings before Greek courts, nor a standing to sue, and in the
case at hand, no right to file an application for an order of payment.
The Thessaloniki CFI dismissed the opposition
with the following reasoning: It is an erroneous assumption that the
capacity of an entity (lawfully established according to the rules and
regulations of the state of its seat) to be a party and to seek protection
before Greek courts, should have been conditioned by the previous state
recognition by the Hellenic Republic. The efforts of the opponents to link
the above facts are running contrary to the prevalent view in the Greek and
international doctrine of Private International Law: The notion of state as a connecting factor of a
conflict of law norm, or the aplicable law of a state, to which the
confilct rule refers, are totally disconnected with the recognition of the respective
state entity from a public international law point of view. A non-recognized
state is not equivalent to a non-existing state; it exists as a body of
human beings living in a specific region, which has developed its own
administrative structure, imposed to its subjects.
In addition, the court continues, there is
evidence that the applicant has been lawfully established in its country of
origin, as evidenced by a document issued by the UNMIK, which was additionally
certified by the Liaison Office of the Hellenic Republic in Pristina,
Kosovo’s capital. In particular, it is stated that the applicant has been
founded as a limited company, registered in the Kosovo companies registry
in 2003, pursuant to the rules of the administrative decree Nr. 2002/22, on
the establishment of companies in Kosovo, issued on the grounds of UNMIK Regulation
2001/6, on business oprganizations.
For the reasons above, the CFI dismissed the
opposition.
The appeal lodged by the Greek company was dismissed
on the same grounds [Thessaloniki CoA Nr. 1883/2015, unreported]
|