Wednesday, 5 October 2016

No application of Brussels I Regulation for the enforcement of a Belgian judgment in Greece

The Thessaloniki 1st Instance court was asked to declare enforceable a Belgian labor court decision which ordered the compensation of a Social Security institution against an insured individual on the grounds of illicit granting of sickness benefits. The court considered that the nature of the case falls under Article 1.2 (c) Brussels I Regulation. Therefore, it examined the application under the pertinent provisions of the Greek Code of Civil Procedure. 


[Thessaloniki 1st Instance court, Decision Nr. 7606/2012, published in: Armenopoulos 2015, pp. 1169 et seq.].  


 The facts:

The applicant is described as a Belgian company embedded in the social security system of the country, being one of the respective national unions. It produced a judgment of the Tongeren labor court (Nr. 615/2010) by virtue of which G.V. was ordered to return to the applicant the amount of 21.442,78 Euros, a sum illicitly received as sickness allowance within a period of two years. The applicant requested the declaration of enforceability.

The ruling:

The Thessaloniki court referred initially to Article 1 Brussels I Regulation, focusing on Para 2 (c), i.e. the social security matters exclusion. It then proceeded with the analysis of the provision, referring to the Evrigenis/Kerameus Report. Returning to the facts of the case, it made use of Art. 337 Code of Civil Procedure (Knowledge of foreign law), in order to verify whether the sick benefits branch falls under the scope of the Belgian social security system. In particular, the court confirmed that the above branch is governed by the National Sickness and Disability Social Security Organization (INAMI). Consequently, the court concluded that the Belgian judgment was rendered in the course of a dispute concerning social security matters. Therefore, given that the Brussels I Regulation does not apply pursuant to Article 1.2 (c), and that no other bilateral or multilateral convention covering the above matters exists between the two countries, it examined the application in accordance with domestic rules, i.e. Articles 323 Nr. 2-5 & 905 §1-3 CCP.

The conditions for enforcement are the following:

Article 323. Subject to the provisions of international conventions, a judgment of a foreign civil court is given res iudicata effect in Greece without any proceedings, if … 2) the case was subjected to the jurisdiction of the courts of the state, to which the court which rendered the judgment belongs; 3) the losing party has not been deprived of its right of defence and generally its right to participate in the proceedings, unless it has enjoyed equal opportunities to nationals of the country, whose court rendered the judgment; 4) the foreign judgment is inconsistent to a domestic judgment issued in the same case and being binding for the same parties; 5) the foreign judgment must not be contrary to morality or public policy.

Article 905.1. Subject to the provisions of international conventions, enforcement of a foreign instrument may be carried out in Greece as from the time such instrument is declared enforceable by a decision of the Single-Member Court of First Instance of the debtor’s domicile, or, in its absence, of the debtor’s residence, or, in the absence of both, of the country’s capital. The Single-Member Court of First Instance shall follow the procedure of articles 740 to 781. 2. The Single-Member Court of First Instance shall declare the foreign instrument as enforceable on the condition that it is enforceable according to the law of its origin and is not contrary to morality or public policy. 3. If the foreign instrument is a court decision, the conditions laid down under Article 323 Nrs. 2 to 5 must also be met.

Based on the provisions aforementioned, the court stated that the Belgian judgment is enforceable, since it bears the executory formula (seal of the King of Belgium, Albert the 2nd); the Belgian court had jurisdiction to try the case, because the defendant was a resident of Belgium at the time the judgment was rendered; the respondent was not deprived of his audience rights, because it is evidenced by the foreign judgment that he was represented by an attorney at law; no judgment is rendered by, or a claim of a similar nature is pending before Greek courts; finally, no violation of Greek public policy results from the declaration of enforceability of the Belgian judgment in question.


Prima facie one may think that the judgment is unworthy of reference, given that the Brussels I Regulation has been substituted by the Brussels I bis Regulation, in force since January 10, 2015. The counterargument lies in the following facts:

i.                    The Brussels I Regulation will continue to apply for a transitional period; Pursuant to Article 66.2 Brussels I bis Regulation, “… Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation”.

ii.                  This is the first decision in Greece applying Article 1.2 (c) Brussels I Regulation, and I found only one more judgment of a German court on the matter [LAG Frankfurt a.M. 12.02.2007, IPRax 2008, 131; see also Eichenhofer, IPRax 2008, 109 et seq.].

iii.                The ruling should be additionally examined under the Brussels I bis Regulation, in terms of a potential ground for confusion in the enforcement stage. In particular, bearing in mind that “a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required” [Art. 39], there is no court examining whether a foreign judgment falls under the scope of the new Regulation. It is reminded that pursuant to Art. 42.1 “for the purposes of enforcement in a Member State of a judgment given in another Member State, the applicant shall provide the competent enforcement authority with (a) copy of the judgment which satisfies the conditions necessary to establish its authenticity, and (b) the certificate issued pursuant to Article 53, certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest”.

The competent authority in Greece is the bailiff. In other words, the bailiff will be in charge in the enforcement stage, given that no exequatur is foreseen. An intervention by a domestic lawyer, presumably more knowledgeable in the issue at stake, is not provided by the Regulation. Hence, if the bailiff receives the certificate of Art. 53, it is not expected that he will proceed to any further scrutiny as to the nature of the case.

Moreover, we should also question whether the judgment debtor would be entitled to challenge the enforcement in the course of his application to refuse the judgment under Art. 45 et seq. Brussels I bis Regulation, and if so, under which ground for refusal.

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