Saturday, 13 August 2016

Refusal to accept Greek proceedings by a Greek living in Germany (Art. 8 Service Regulation)

A judgment rendered last year by the Thessaloniki 1st Instance Court is expected to give rise for new comments on the right of the recipient to refuse documents from abroad. The interesting part of the ruling is that the respondent refusing to receive the claim was of Greek nationality, living in Germany.

THE FACTS: The parties are a Greek bank (the claimant) and a Greek debtor living in Germany (the defendant). The claimant initiated compensation proceedings before the Thessaloniki Court of 1st Instance, in order to obtain an enforceable title covering the remaining unpaid sum. The claim was filed with the court and a hearing date was set, as it was the case in accordance with procedural provisions in force until 31.12.2015[1]. Following the above, the claimant served the claim to the Thessaloniki Prosecutor’s Office, the latter being the Transmitting Agency officially declared by the Hellenic Republic. At the hearing date, the claimant submitted three documents in this respect:
a)      A true copy of the certificate of service to the Prosecutor’s Office by a competent Greek process server.
b)      The original of the standard form issued in accordance with Art. 4 Para 3 Service Regulation.
c)       The standard form issued in accordance with Art. 10 Service Regulation, where it was noted that the recipient refused acceptance of the document.
 The defendant was in default of proceedings.
THE RULING: The court dismissed the hearing of the action[2] as inadmissible. It founded its ruling on several provisions of the Service Regulation (Articles 5, 8, 10 and 19). It was clear that the claim was served without a translation in German, i.e. the official language of the Member State addressed. Hence, the court focused especially on Article 8 Para 1 (b) Service Regulation, and decided that the addressee (defendant) did not understand the language of the Member State of transmission (Greek). The foundation upon which the court based its judgment was the following:
a)      The defendant’s refusal to accept the document recorded in the standard form aforementioned was not justified; however, it is presumably connected with the inability of the defendant to understand the Greek language.
b)      The claimant failed to produce any correspondence between the parties related to the subject matter in the Greek language.
c)      The loan contract was not signed by the defendant; he appointed a proxy for this cause.
Finally, the court emphasized that the claimant could have served a fresh copy of the claim, this time with an attached translation; however, he failed to so.
For the above reasons, the Thessaloniki Court of 1st Instance dismissed the hearing of the action as inadmissible.
COMMENTS: There has been pretty much discussion about the right of refusal established in Article 8 Service Regulation. Starting with the Leffler case of the CJEU [Case C-443/03], the claimant had the chance to secure that the hearing takes place, by sending a translation of the claim. Secondly, the CJEU has recently clarified that ‘the fact that that agency, when serving a document on its addressee, fails to enclose the standard form set out in Annex II to Regulation No 1393/2007, does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation’ [case C‑519/13, Alpha Bank Cyprus Ltd]. It has not been mentioned in the judgment whether the Greek agency did enclose the above standard form or not. This is however a secondary matter in the present case, since the defendant managed to exercise his right of refusal.
Last but not least, the CJEU has clarified in the case Ingenieurbüro Michael Weiss und Partner GbR [Case C-14/07], that ‘Article 8(1)(b) of Regulation No 1348/2000 is to be interpreted as meaning that the fact that the addressee of a document served has agreed in a contract concluded with the applicant in the course of his business that correspondence is to be conducted in the language of the Member State of transmission does not give rise to a presumption of knowledge of that language, but is evidence which the court may take into account in determining whether that addressee understands the language of the Member State of transmission’. Without referring to the above ruling, the Thessaloniki court took into account the surrounding circumstances of the contract, and concluded that the fact that it was drafted in Greek[3] does not give rise to a presumption of knowledge of that language, because (as stated above) no correspondence in Greek has been produced to the court by the claimant. Finally, no direct involvement of the defendant was proven, both in the pre-contractual phase, as in the day the contract was signed, since he was represented by a proxy.

To sum up, it was probably the inaction of the claimant which triggered the court to decide in favour of the defendant. The lesson learned by this ruling is that it takes more than a default party and a complacent presumption that all Greeks understand Greek to win a case.

[1] The 2016 reform has modified vastly the pre-trial phase in ordinary proceedings: previously the claimant was serving proceedings only after the hearing was scheduled; by virtue of the new system service takes place after filing and before scheduling the hearing date.
[2] i.e. not the action itself. In the latter case, the plaintiff is obliged to file a new claim, whereas in the former he only needs to summon the defendant, once the vice has been healed.
[3] It is not stated in the judgment whether there was a clause such as the one mentioned in the Ingenieurbüro Michael Weiss und Partner GbR case. However it is common sense that any following correspondence would have to be drafted in the language already selected for the contract.