Right state, but wrong place: Exorbitant rules knocking at the backdoor

For several years now, exorbitant rules on jurisdiction have been banished from the radius of the Brussels Convention & Regulation I regimes. One would think that court practice became familiar with these provisions. A recent judgment of the Thessaloniki Court of Appeal demonstrates rather the opposite.

Thessaloniki CoA Nr. 129/2018, published in: Επιθεώρηση Πολιτικής Δικονομίας [Civil Procedure Law Review] 2018, pp. 156 et seq.

THE FACTS

The parties are relatives: the claimant [C] is the brother of the first respondent [R1]; the second respondent [R2] is the husband of the first one. The plaintiff is a resident of Thessaloniki, whereas the defendants are living in the UK. Tension was prevailing in their relation for years. In 2006 they met in a village of Fthiótida, an administrative unit of the Hellenic Republic, on the occasion of the burial of C & R1’s father. Following the funeral, R1 & R2 attacked C, causing him serious injuries; at the same time they were using vulgar language against him. C filed an action for damages on the grounds of pain and suffering. The action was filed before the Thessaloniki 1^st Instance court. The latter acknowledged its territorial competence, omitting any reference to international jurisdiction issues. The court invoked Article 40 Para 1 Greek Code of Civil Procedure, which reads as follows: If the subject matter of the claim concerns property matters, litigation against persons not residing in Greece may be entertained before the court where the respondent has assets. It was brought to the court’s attention that R1 owns property in Thessaloniki, a fact not disputed by R1. The court ordered the defendant to pay damages [Thessaloniki 1^st Instance court Nr. 7484/2014, published in:  Armenopoulos 2015, pp. 276 et seq.]. The latter lodged an appeal. 

THE RULING

The main ground of appeal concerned the lack of the court’s venue: There was no doubt that Greek courts had international jurisdiction to try the case; the incident occurred however in a different place than Thessaloniki. Hence, the court should not have accepted its territorial competence; instead, it ought to refer the matter to the proper court, i.e. the Lamia 1^st Instance court.

Initially, the appellate court entered into a detailed analysis of the relation between domestic law and Brussels I rules on jurisdiction. It then made reference to Article 40 Greek Code of Civil Procedure, stating that its application is examined in accordance with domestic rules of Civil Procedure. Further on, the court indicated that the exclusion of Article 40 Greek Code of Civil Procedure from the ambit of the Brussels regime [Art. 3 Brussels I Regulation in conjunction with Annex I] affects solely the international jurisdiction aspect; once the latter is given, domestic rules on establishing venue are to be applied. 

In this fashion, the claimant has the right to opt among the domestic rules available for filing his action. This could be either the place where the harmful event occurred [Art. 35 Greek Code of Civil Procedure] or even the place where the defendant has assets [Art. 40 Greek Code of Civil Procedure].

For the reasons mentioned above, the appeal was dismissed, and the venue of the Thessaloniki courts confirmed.

COMMENTS

Instead of proceeding to personal remarks, I prefer to refer to some solid statements made by the forefathers of the Regulation and contemporary commentators. First, it was Jenard who underlined in his Report the following: Adoption of the 'special' rules of jurisdiction is also justified by the fact that there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it. Thus, to take the example of the forum delicti commissi, a person domiciled in a Contracting State other than the Netherlands who has caused an accident in The Hague may, under the Convention, be sued in a court in The Hague. This accident cannot give other Netherlands courts jurisdiction over the defendant. On this point there is thus a distinct difference between Article 2 and Articles 5 and 6, due to the fact that in Article 2 domicile is the connecting factor [Jenard Report, OJ 5.3.1979, C 59/22]. Reinhold Geimer & Rolf Schütze confirm the above in their seminal work Europäisches Zivilverfahrensrecht (3^rd edition, 2010), Art. 5 Rn. 268. Peter Mankowski clarifies unambiguously the question in the same fashion: … all heads of special jurisdiction contained in Art. 5 vest jurisdiction in a certain court, not the courts of a state. Hence, Art. 5 … does not only regulate international jurisdiction, but also local jurisdiction or venue, excluding the rules of the national law of the forum on local jurisdiction from application. These rules are rendered inoperative.[Magnus/Mankowski, Brussels I Regulation, 2^nd revised edition, art. 5 note 3]. Last but for sure not least, this position is repeated in the recent Greek Commentary on the Brussels I bis Regulation [Nikas/Sachpekidou, European Civil Procedure (2016), Art. 7 nrs. 100-101].

I would like to believe that this ruling is the exception to the rule. Indeed, Greek courts, especially the appellate ones, are demonstrating profound knowledge of Brussels I Regulation matters. I decided to present this case as an example to be avoided in the future.