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.

Supreme Court recognizes a French ordonnance de référé

On the occasion of an application for the declaration of enforceability of a decision of the Paris Commercial Court, the Supreme Court was given the chance to rule on the compatibility of the French ordonnance de référé with the Greek public order. In addition, the court applied diligently the case law of the CJEU in the field of provisional measures.

[Supreme Court (Άρειος Πάγος) 93/2017, unreported]

THE FACTS: The petitioner for cassation is a Greek company (G); the appellee a French company (F). Following the publication of an ordonnance de référé by the Tribunal de commerce de Paris, ordering G to pay the amount of 90.000 € to F, the latter sought to declare the ordonnance enforceable in Greece. The Athens First Instance court granted exequatur [Judgment Nr. 3856/2012, unreported], whereas the Athens Appellate Court dismissed the appeal lodged by G [Judgment Nr. 5389/2014, unreported]. G filed a cassation, challenging the 2nd instance ruling in mainly two aspects: First, the French court had no jurisdiction to try the case; second, an ordonnance de référé violates both European and Greek public policy. In particular, European public policy was supposedly infringed, because the French decision did not guarantee repayment to the defendant of the sum awarded, if the plaintiff is unsuccessful as regards the substance of his claim; domestic public policy was violated because such a form of provisional measures is alien to the Greek legal order, which allows provisional compensation in exceptional cases stipulated by law, commercial contractual obligations excluded. 

THE RULING: The Supreme Court began with an extensive analysis on the treatment of provisional measures in the Brussels I context, focusing on the findings of the CJEU in the cases C-391/95, Van Uden Maritime BV / Kommanditgesellschaft and C-99/96, Hans-Hermann Mietz / Intership Yachting Sneek BV. In order to classify the legal nature of ordonnance de référé, it referred to the decision of the CJEU in the Reichert case [261/1990, Mario Reichert / Dresdner Bank AG].
It then examined the public policy considerations put forward by the appellant: First, the Supreme Court underlined the existence of a choice of forum agreement in the general terms of the contract signed by the parties, which tacitly extends / covers summary proceedings. Hence, the French court had jurisdiction pursuant to Art. 23 Brussels I Regulation and 48 Code de procédure civile; therefore, a repayment guarantee was not a necessary condition.

Secondly, with regard to the nature of ordonnance de référé, the Supreme Court clarified, that mere differences in the fashion proceedings are structured may not result to public policy violation as such. In particular, so the court, the fact that an institution similar to the ordonnance de référé is not included in Articles 728-729 Greek Code of Civil Procedure, i.e. the provisions regulating the issue of provisional compensation, does by no means violate fundamental legal, social or moral principles of the domestic legal order. Similarly, Article 692 Para 4, i.e. the rule forbidding full satisfaction of the applicant in summary proceedings, is not infringed.

In conclusion, all efforts of G to reverse the instance rulings were dismissed.

COMMENT: It is common knowledge that the public policy defence serves always as the final frontier for debtors wishing to hinder the execution of a foreign judgment in the place where they own property. The Supreme Court was adamant in its ruling: The foreign judgment need not emanate from a procedure, which resembles fully to its domestic equivalent. The fact that domestic rules do not foresee provisional compensation in the course of a license agreement has been rightfully considered as a minor divergence, which stands no chance of supporting a (profound) public policy violation. As a conclusion, the ruling of the Supreme Court follows the path opened by quite a number of previous judgments, which confine the boundaries of the public policy ground for refusal in accordance with European perceptions.