Legal Abroad

Enforcement of Foreign (NON-EU) Court Decisions – Judgement in Greece

The recognition and enforcement of decisions and judgments issued by the courts of European Union Member States are regulated by the Regulation (EC) 1215/2012 (“Brussels 1a”).

 

Foreign decisions and judgments, issued by the courts of countries that are not EU Member States, called customarily as “third countries” in Greek legal language, which include the United Kingdom after Brexit and the end of its implementation period, are not immediately and automatically enforceable in Greece as are these under the EU Regulation 1215/2012.

 

Foreign, third countries’ judgments’ enforceability will have to be declared by a competent Greek Court under the “exequatur” procedure of the Greek Code of Civil Procedure, if they meet specific requirements that are set by the law.

 

REQUIREMENTS FOR EXEQUATUR (Greek Code of Civil Procedure articles 905 and 323)

 

  1. The foreign court decision or judgment must be enforceable according to the law of the country where it has been issued:
  • at the time exequatur is requested in Greece
  • it is not necessarily required to be enforceable under Greek law
  • the foreign judgment’s procedural maturity is irrelevant, i.e. whether it is still appealable in the country of origin, as long as it is enforceable
  • it is irrelevant whether it produces res judicata

 

  1. The foreign court decision or judgment cannot be contrary to the moral principles and the public order in Greece, which are the fundamental principles which rule and regulate the public, social, economic, legal, etc life in Greece, including:
  • the fundamental human rights
  • the basic procedural law rules, including independence and impartiality of the judges, equality of the parties in their use of legal means, respect of the proportionality principle (e.g. excessive legal costs, punitive damages).

 

What about Legal Costs awarded by the foreign/third country court decision?

 

The Greek Supreme Court (Areios Pagos) ruled by its decision nr 1829 of year 2006, in a road traffic accident case that happened in Greece involving a UK national victim, that the Legal Costs certificate representing the claimant’s English lawyers’ costs and fees was not executable in Greece, because it was held to be excessive and disproportionate to the value of the trial and therefore contrary to Greek public policy.

 

Differently, the same Supreme Court (Areios Pagos) ruled more recently in its decision nr.  579 of year 2019, that a UK court decision that had awarded in a defamation claim 40,000 compensatory damages and 76,000 legal costs to the claimant, was finally declared enforceable and not contrary to public policy in Greece, under the Brussels Regulation (44/2001). The Greek Supreme Court ruled that:

  • Reference to public policy must be in line with the system of mutual trust and free circulation of judgments between EU member states;
  • The court of enforcement cannot review the substance of the judgment and therefore cannot examine whether the costs’ order is “excessive” or not;
  • Refusal to enforce a foreign judgment awarding legal costs might eventually be justified if the costs certificate was held to constitute a hidden imposition of punitive damages, that contradict Greek public policy rules.

 

What about Punitive Damages?

 

The Greek Supreme Court (Areios Pagos) ruled in its decision nr. 17 of year 1999 and in steady jurisprudence thereafter that foreign judgments awarding punitive damages are not enforceable in Greece, for reasons of public policy.

 

However, the Piraeus First Instance Court in its decisions 722 of year 2019 pronounced for the first time a USA judgment enforceable in Greece, that awarded 7m$ in compensatory and 10m$ in punitive damages, on the following basis:

  • Punitive damages are not per se contrary to Greek public policy – Greek law has provisions for damages of an “exemplary” or “punitive” character in various situations
  • The Court must examine the factual circumstances of the specific case and the proportionality between compensatory and punitive damages awarded, taking into consideration the intensity and extent of the illegality and offense done by the defendant against the “legal order”, the extent of the damage caused to the plaintiff, the financial wealth/situation of the parties [in this case there was a particularly fraudulent behavior of defendant and devastating results to the plaintiff]

 

No contradiction with Greek public policy or the principles of good morals was found by Greek courts asked to declare the enforceability of foreign judgments, in cases where the foreign procedural law was different than the Greek, as for example:

  • different distribution of the burden of proof
  • use of witness testimonies that would not be allowed under Greek law
  • application of presumptions unknown to the Greek system
  • different heads of recoverable damages
  • different rates of default or legal interest

 

  1. The issuing foreign court must have had jurisdiction to try the case, according to the Greek rules on jurisdiction

 

The Greek court will apply its own rules on jurisdiction, that are set by the Code of Civil Procedure.

 

The Greek court will not be bound by the foreign procedural rules or rulings regarding jurisdiction, although it will be bound by the findings of facts on which the foreign court based its jurisdiction, since the case is not being “re-tried” on its merits in the exequatur procedure by the Greek Court.

 

Basic Jurisdiction rules under the Greek Code of Civil Procedure

 

  • Choice of Forum by agreement of the parties in a contract will determine jurisdiction (art. 42-44 Code of Civil Procedure)

 

If the matter falls under the Hague Convention on Choice of Court Agreements 2005, the favorable enforcement procedure set by the Convention will be applied. However:

    • It does not apply to employment, personal injury, consumer, carriage of passengers’ disputes
    • It applies only to exclusive jurisdiction clauses, that have been entered into force after 1/1/2021
    • The Hague Convention provides for almost identical reasons for refusal of recognition and enforcement as Greek law

 

  • In absence of a choice of forum between the parties, the rules for determination of the jurisdiction are the following:
    • Exclusive jurisdiction of the courts of:
      • the place of the immovable property that is the object of a dispute
      • the place of the death of the inherited person for hereditary matters
      • the court of the main trial for ancillary or closely related matter
      • the place of last joint co-habitation in marital disputes

 

    • Concurrent jurisdiction of the courts of (the plaintiff is entitled to choose one of them) :
      • the defendant’s or one of the co-defendants’ domicile or residence or seat/actual place of business
      • the place where a defendant, who is not domiciled in the jurisdiction, has property within the jurisdiction or where the      object of the litigation lies
      • the place where a contract was entered into/concluded OR where it was performed
      • the place of the tort/delict incident that gave rise to the claim

 

    • Consumer and Insurance disputes:

There is no “consumer’s domicile” basis for jurisdiction in Greek law, other than under the Regulation (EC) 1215/2012 (recast). However, a Greek Court would assume jurisdiction over a claim of a consumer, who is domiciled in Greece, against a non-EU domiciled defendant, by application of art. 6 of the Regulation 1215/2012 << If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18(1), article 21(2) and Articles 24 and 25, be determined by the law of that Member State>>

 

It can therefore be argued that the “consumer domicile” jurisdiction (article 18(1) of the Regulation) has become part of the internal Greek procedural law, applying to EU and to non-EU residents.

 

    • Tort disputes:

Identically to the Regulation (EC) 1215/2012 article 7 par.2 special jurisdiction of the “accident locus”, which applies to matters involving litigants domiciled in EU member states to which the Regulation applies, article 35 of the Greek Code of Civil Procedure also provides that “matters relating to tort can also (apart from the courts of the place of the defendant’s domicile) be instituted in the courts for the place where the harmful event occurred or may occur ”. Both according to the European Court of Justice and Greek Courts’ jurisprudence, the above special jurisdiction of the “place of the harmful event” includes both (a) the place where the “event which caused the damage” occurred and (b) the place where the “direct damage” was suffered.

 

In two recent decisions issued by the Greek Supreme Court (nr. 1658/2022 and 1659/2022) it was ruled that Greek Courts had jurisdiction over the claims for compensation brought by the families of two deceased pilots against the non-EU residing manufacturers of the airplane, although the accident that gave rise to the tort claims happened abroad and not in Greece, because it was held that the claimants suffered directly their moral damage in their country of domicile, which fact made Greek courts competent over the claim.

 

  1. The defendant’s rights for defense and in general participation in the trial must have been respected by the foreign court. For example:
  • the defendant must have been duly served with the document that instituted the proceedings in the foreign court and in sufficient time to enable him to arrange for his defense
  • In general, the foreign judgment must have been issued in a procedure that has not manifestly violated “justice” and “fairness” with respect to the losing party

 

  1. The foreign court decision or judgment cannot be irreconcilable with a judgment issued by a Greek court on the same matter:
  • that has been issued in the same matter and
  • that establishes res judicata for the same parties
  • irrespectively of the causes of action on which the two judgments have been based

 

PROCEDURE OF EXEQUATUR

  • application to the competent Greek Court and submission of proof of the enforceability of the foreign judgment in the country of origin
  • no term/time limit
  • hearing under art. 740-781 CCP “non-contentious jurisdiction” procedure:
    • Notification/invitation of the defendant/debtor is not required, unless ordered by the Court
    • The defendant can appeal against the decision under the general rules for appeal of judgments, if he was a party to the procedure, or by a special “appeal” as a third interested party if he did not participate.

 

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