Dear all


I would like to bring to your attention an article of mine, which is scheduled to be published in the next edition of International Journal of Procedural Law.

In anticipation of the publication, I have uploaded the article in SSRN.

The web page, where the text may be found is the following:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2868091

Title

Greek Payment Orders Against Foreign Residents - Amendments to Articles 623 Et Seq. Greek Code of Civil Procedure

Summary

 

Since January 1, 2016, law No. 4335/2015 entered into force, resulting in radical changes in Greek civil litigation. Part of the reforms deals with amendments to the chapter on payment orders. Previously it was forbidden to issue a Greek order for payment, if the debtor was residing abroad. Pursuant to the new provisions, this is no longer the case. The importance of the matter for foreign debtors is related to the peculiar nature of the Greek model: Unlike the majority of EU Member States’ legislation, the Greek order for payment is, once issued, automatically an enforceable title. The new provisions feature therefore a dual system, depending on the residence of the debtor: With respect to debtors living in Greece, the order for payment remains immediately enforceable; however, additional requirements have been posed, when the order for payment has to be served abroad, in order to safeguard the rights of the defendants.

 

 

 

Service of Process to Swiss Defendants

For the German-speaking readers of my blog, allow me to draw your attention on a small article recently published in the Swiss Review 

'Schweizerische Zeitschrift für Zivilprozess- und Zwangsvollstreckungsrecht'

The citation is the following:

Anthimos, Griechisch-schweizerischer Zustellungsverkehr in Zivil- und Handelssachen: eine Bestandaufnahme der griechischen Rechtsprechung, ZZZ 2014, 30, S. 150-152

More info on http://www.dike.ch/ZZZ-Archiv/ZZZ-2013-30

You can download a word version of the article here

On the application of the Hague Service Convention in Greece

The Hague Service Convention was ratified by the Hellenic Republic almost 30 years ago. Although the respective act has been published back in 1983, its actual implementation began only 6 years later, i.e. sometime in 1989. Meanwhile the Convention constitutes an instrument well known in disputes with foreign elements; a recent search on Greece’s most reliable legal database has returned 185 hits. My report will focus on two judgments from 2012, dealing with service of process to the USA.

I. In the first case [Supreme Court, Nr. 221/2012, not yet reported], the issue was whether Articles 15-16 of the Convention should be applied in regards to a notice for a sworn statement to be given before a Greek notary public. In the early stages of its application, there was some confusion as to the distinction between the writ of summons or an equivalent document and other documents, following the initial stage of proceedings. First instance courts for example have rendered rulings, according to which, personal service was imperative even for judgments or writs of attachment. In the late ‘90s, the Supreme Court drew a clear-cut line between documents instituting proceedings and subsequent judicial or extrajudicial documents in the course of the same proceedings: For the former, the requirements stated under Article 15-16 are to be respected under any circumstances, whereas for the latter, there is no obligation to follow the prerequisites of the Service Convention. Hence, service can take place according to the Greek Code of Civil Procedure (CCivP). Mention needs to be made here to the fact that Greece has adopted the French model of remise au parquet, in other words the so-called fictional or deemed service (Art. 134 & 136 CCivP). The above case law has been constantly enriched over the past 15 years, and constitutes nowadays the prevailing view both in theory and practice, especially after the ruling of the Supreme Court’s Plenum in 2009 [Nr. 22/2009, Epitheorissi Politikis Dikonomias = Civil Procedure Review 2009, p. 776 et seq.].

Until recently, the respective case law was related to enforcement documents. The novelty of the present ruling lies in the fact that it is the first judgment expanding the rule of non-application of Articles 15-16 of the Convention to affidavits.

II. In the second case [Athens CoA Nr. 223/2012, Efarmoges Astikou Dikaiou & Astikou Dikonomikou Dikaiou = Theory and Practice of Civil Law & Civil Procedure Law 2012, p. 760 et seq.] the issue at stake was whether an appeal could be served by virtue of the law of the State addressed. In particular, the appellant, instead of making use of the service methods stipulated in the Convention, in order to notify the appeal to its recipient in the USA, he opted for serving the document pursuant to Rule 1.080 b & f Florida Rules of Civil Procedure. The Athens Court of Appeal accepted the method of service chosen on two grounds: First, because Article 137 Greek CCivP grants the right to serve documents according to the provisions and formalities of the State addressed; and secondly, because Articles 10 c & 19 of the Convention allow any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, to the extent that the internal law of the latter State permits methods of transmission, other than those provided for in the preceding Articles. Given the fact that no indication of the contrary was evidenced in the ensuing proceedings, the court found no reason to reject the certificate of service produced by the appellant.

Serving Greek Proceedings to US defendants - A case law survey

I will focus on reported case law regarding service of Greek proceedings to defendants / litigants living or having their seat in the USA.

I.                    Greek courts have refused to render a default judgment under the following circumstances:

a)      When the claimant produces to the court solely the certificate of service to the competent (Greek) Public Prosecutor’s office[1] [Supreme Court 250/1993, 657/1995, 835/2007, CoA Larissa 740/2008, CoA Patras 453/1993].

b)      When the claimant does not produce a certified translation of the US certificate of service, i.e. he only includes the original or a true copy with no Greek translation [1^st Instance Multi-Member Court Samos 25/2012].

c)      When the document reaches the US competent authority or the defendant after the day of the hearing [CoA Athens 734/1992, 1^st Instance Multi-Member Court Amfissa 105/1992].

d)      When domestic time limits for the appearance of the defendant before court have been violated[2]. In this case, even if the claimant produces the US certificate of service and a Greek translation attached, the hearing will be adjourned, and fresh service is required [Supreme Court 1566/2010].

e)      When the claimant surreptitiously opts for fictional service or service by publication[3], without scrutinizing the possibilities for using conventional methods of service [Supreme Court 503/2011 &, CoA Piraeus 730/2008]. However, if the claimant exhausts the latter with no result, he’s allowed to proceed to the former [1^st Instance Multi-Member Court Athens 449/2004]. Hence, a successive option is legitimate [1^st Instance Court Thessaloniki 38292/2009 & 20721/2010].

II.                  On the other hand, Greek courts rendered a default judgment under the following circumstances:

a)      When six months have passed since the day of transmission, according to Article 15 Para. 2 b of the Service Convention, even if the document has been sent back to Greek channels as undeliverable [Supreme Court 851/2007 & 433/2001].

b)      When the claimant opts for service based on US statutes (in application of Article 137 Greek CCivP, which allows this form of service) [CoA Athens 223/2012.

c)      When the claimant opts for service to a legally appointed proxy in Greece, thus avoiding service of process to the US [Supreme Court 909/2004, CoA Dodecanese 200/1998, CoA Larissa 474/2006].

Finally, serving documents instituting proceedings in first and second instance, or even to the Supreme Court, are within the field of application of the Service Convention, unlike other documents beyond the claim (summons for sworn statements, writs of attachment, etc), where domestic law prevails [Supreme Court 1658/2009, 266/2004, 1447/1988, CoA Dodecanese 81/2008 & 234/2005 ].

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[1] According to Article 134 Greek CCivP, for the purposes of serving foreign defendants, documents are to be served to the Public Prosecutor of the competent court, who is entrusted with forwarding the document to the Ministry of Foreign Affairs. From there, the document will be transmitted to the Receiving Agency of the respective country, in order to be delivered to its actual recipient.

[2] According to Article 229 Greek CCivP, the claim has to be served 90 days before the hearing.

[3] According to Article 135 Greek CCivP, persons of unknown residence are to be served in a fashion similar to the particulars of Article 135 Greek CCivP, plus its publication in two newspapers (one in Athens, the capital, the second in the venue of the court).