Thursday, 3 April 2014

Revocation of enforceability as a ground for non-execution of a German Vollstreckungsbescheid in Greece

The Thessaloniki CoA granted an appeal against a decision declaring a German payment order enforceable on the ground that the foreign order was deprived of its enforceable character [Thessaloniki CoA 1927/2012, Armenopoulos 2013, p. 1503]. 

The facts. A Vollstreckungsbescheid was issued by the Stuttgart Amtsgericht in 2003, ordering the appellant to pay the amount of 800.000 €. The creditor (a German limited liability company) assigned part of the claim to its administrator, who then sought to declare the German order enforceable in Greece for the amount assigned. The Veria 1st Instance Court granted enforceability [Veria 1st Instance Court 174/2008, unreported]. The judgment debtor lodged an appeal before the Thessaloniki CoA pursuant to Art. 43 Brussels I Regulation. He challenged the enforceable character of the German order, supporting his request to a 2008 decision of the Stuttgart Landgericht, by virtue of which the order’s enforceability was revoked, and the judgment creditor was obliged to return the writ of execution to the court. 

The ruling. The court engaged in a long narrative, listing Art. 32-45 of the Brussels Regulation in full length. It then reiterated the dispositive part of the Stuttgart Landgericht, noting that this judgment (which was final and conclusive) was already recognized in Greece on the initiative of the appellant [Veria 1st Instance Court 262/2010, unreported]. Given the above, the court stated that no declaration of enforceability is acceptable in Greece, if the order lacks enforceability in the state of origin, following a successful remedy by the debtor/appellant. 

Comments. Art. 45.1 Brussels I Reg. makes clear reference to the grounds of refusal specified in Articles 34 and 35. So, the legitimate question goes as follows: Is the judgment debtor allowed to invoke lacking enforceability of the foreign judgment, in spite of the exclusive character of the wording in Art. 45.1? Greek scholars unanimously answer the question in the affirmative: the issue of enforceability of the foreign title is to be examined de novo, in line with Art. 38.1 Brussels I Reg., even if not mentioned literally in Art. 45. However, this has been the first case where a Greek court was confronted with such facts. It goes without saying that the ruling of the Thessaloniki CoA was correct [similarly in Germany, see Rauscher/Mankowski, EuZPR/EuIPR (2011) Art 38 Brüssel I-VO Rn 14b; see also Magnus/Mankowski/Kerameus, Brussels I Regulation (2nd ed. 2012, art. 38, note 10]. Thus, the decision sets a valuable precedent and should be taken into account in the future implementation of the Brussels Regulation (Nr. 1215/2012).