Tuesday, 15 August 2017

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.

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