| EVRIGENIS-KERAMEUS REPORT1986
Report on the accession of the Hellenic Republic to the Community Convention on jurisdiction and the enforcement of judgements in civil and commercial matters This report is the last work to flow from the pen of Professor Demetrios I. Evrigenis, who, as always, was the moving spirit and a principal actor in its creation. It was almost complete when he died, in the prime of life, in Strasbourg on 27 January 1986 when about to return to Thessaloniki to discuss some final matters with me, his co-author. His sudden death obliged me to settle them alone, few in number and little of consequence as they were. The problems of international jurisdiction and the enforcement of the judgments of foreign courts, which absorbed his energies so productively throughout his academic life, have thus become the theme of his parting words at its inexorable end. This work is dedicated to his memory with gratitude and respect. K. D. KERAMEUS end of page Official Journal of the European Communities 1986 No C 298/1 1. On 25 October 1982, representatives of the ten Member States of the European Communities at that time signed the Convention on the accession of the Hellenic Republic to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice with the amendments made to them by the Convention on the accession of the Kingdom of Denmark, of it eland and of the United Kingdom of Great Britain and Northern it eland. The conclusion of this Convention was provided for in Article 3 (2) of the Act concerning the conditions of accession of the Hellenic Republic and the adjustments to the Treaties annexed to the Treaty of 28 May 1979 concerning the accession of the Hellenic Republic to the European Economic Community and to the European Atomic Energy Community. In accordance with that provision 'the Hellenic Republic undertakes to accede to the conventions provided for in Article 220 of the EEC Treaty and to the protocols on the interpretation of those conventions by the Court of Justice, signed by the Member States of the Community as originally or at present constituted, and to this end it undertakes to enter into negotiations with the present Member States in order to make the necessary adjustments thereto'. To date, the only existing convention based on Article 220 of the EEC Treaty is the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. 2. In preparation for the negotiations for accession to this Convention, the Hellenic Republic drew up a memorandum with proposed adjustments which was forwarded in October 1981 to the other Member States via the Council. The Permanent Representatives Committee convened an ad hoc Working Party composed of experts from the Member States and Commission representatives which met on two occasions in Brussels, on 14 December 1981 and 5 April 1982. From these meetings there emerged a draft Convention on the accession of the Hellenic Republic, which was approved by the Permanent Representatives Committee on 11 June 1982 and was signed on 25 October 1982 by representatives of the Member States at a conference of the Ministers for Justice of the Member States in Luxembourg. 3. Before presenting and commenting on the Convention on Greece's accession, it will be useful to list all the individual texts making up the current version of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. These texts are as follows: 3.1.1. Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as the '1968 Convention'). 3.1.2. Protocol (hereinafter referred to as the '1968 Protocol'). 3.1.3. Joint Declaration (hereinafter referred to as the '1968 Joint Declaration').
3.2.1. Protocol on the interpretation by the Court of Justice of the European Communities of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as the '1971 Protocol'). 3.2.2. Joint Declaration (hereinafter referred to as the '1971 Joint Declaration').
3.3.1. Convention on the accession of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, and the Protocol on its interpretation by the Court of Justice of the European Communities (hereinafter referred to as the '1978 Accession Convention'). 3.3.2. Joint Declaration (hereinafter referred to as the '1978 Joint Declaration').
3.4.1. Convention on the accession of the Hellenic Republic to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice with the amendments made to them by the Convention on the accession of the Kingdom of Denmark, of it eland and of the United Kingdom of Great Britain and Northern it eland (hereinafter referred to as the '1982 Accession Convention').
This Convention was signed in Luxembourg on 25 October 1982 and published in Official Journal of the European Communities No L 388 of 31 December 1982, pages 1 to 6. All the above texts were published in an unofficial consolidated version prepared by the General Secretariat of the Council, in Official Journal of the European Communities No C 97 of 11 April 1983, pages 2 to 29. For the publication of the above texts in the other Community languages, see the table given on page 1 of Official Journal of the European Communities No C 97 of 11 April 1983. 4. Explanatory reports were drawn up on the texts referred to in points 3.1.1. to 3.3.2. The report on the 1968 Convention, Protocol and Joint Declaration and the report on the 1971 Protocol and Joint Declaration were drawn up by Mr P. Jenard, Director in the Belgian Ministry of Foreign Affairs and External Trade [1]. The report on the 1978 Accession Convention and Joint Declaration was drawn up by Mr P. Schlosser, Professor at the University of Munich [2]. A Greek translation of these reports appears in the present edition of the Official Journal. The reports in question contain the background to the preparation of the texts and explain and e1ucidate the provisions of the texts in relation to the autonomous law of the Contracting Parties. They are of considerable assistance in interpreting the Convention.
5. As in the case of the accession of Denmark, it eland and the United Kingdom, in the case of the accession of Greece the Contracting Parties preferred to draft a Convention incorporating adjustments supplementing the existing 1968, 1971 and 1978 texts instead of directly revising them. This solution has c1ear advantages. It relieves the Contracting Parties of the obligation to ratify once more those pans of the existing Convention which have not been amended through the new accession and, at the same time, permits a clear distinction to be made between the successive stages in the development of the Convention. There are, however, disadvantages, as the result is a gradual accumulation of texts effecting repeated indirect changes to the original Convention. The number of such independent texts is bound to increase with each new enlargement of the Community and, consequently, with each further accession to the Convention. This multiplicity of sources will, of course, create further problems of interpretation in determining the law applicable in a particular case. Of assistance on this point are the consolidations of the texts of the Convention into a single corpus which are usually prepared after each new accession by the Council General Secretariat [3]. Anyone seeking to interpret the Convention must not forget, however, that these consolidations are unofficial and therefore do not have binding force.
6. In contrast to the 1978 Accession Convention, the 1982 Accession Convention did not involve any substantial changes to the text either of the 1968 Convention or the 1971 Protocol, as already amended by the 1978 Accession Convention. The adjustments made to those texts by the 1982 Convention are purely technical and are restricted to additions required as a result of the accession of the new Contracting Party. Greece, as shown by the memorandum which it submitted for the negotiations for its accession to the Convention [4], felt that it could accept the Convention in its entirety, as already amended by the 1978 texts. Two points which might have led to substantial amendments were finally dealt with in the minutes of the ad hoc Committee. These points are dealt with below [5].
7. The Convention governs, on the one hand, the international jurisdiction of the courts, and, on the other, the recognition and enforcement of judgments, authentic instruments and court settlements. Given its content, it may be classified as a 'double' convention. In other words, in addition to provisions governing the recognition and enforcement of foreign judgments, it contains direct rules on jurisdiction defining the court competent to deal with a dispute, in contrast to 'single' conventions which deal with jurisdiction only indirectly as a pre-condition for the recognition and enforcement of foreign judgments. The Convention is divided into eight Titles and deals successively with the scope of the Convention itself (Title I, Article 1), jurisdiction (Title 1I, Articles 2 to 24), recognition and enforcement (Title III, Articles 25 to 49), authentic instruments and court settlements (Title IV, Articles 50 to 51). Title V (Articles 52 to 53) contains general provisions and Title VI (Article 54) transitional provisions to which must he added the provisions of Articles 34 to 36 of the 1978 Convention and of Article 12 of the 1982 Convention. Title VII (Articles 55 to 59) governs the relationship of the Convention to other conventions while Title VIII (Articles 60 to 68) contains the final provisions, to which must be added the corresponding provisions of the 1978 Convention (Articles 37 to 41) and the 1982 Convention (Articles 13 to 17). The 1968 Protocol contains a set of specific provisions. For the 1971 Protocol on the interpretation of the Convention by the Court of Justice and the amendments thereto in the 1978 and 1982 texts, see Section III D below, points 91 to 99.
end of page Official Journal of the European Communities 1986 No C 298/4 8. After the foundation of the modern Greek State (1830) positive legislation in respect of international jurisdiction and the recognition and enforcement of the judgments of foreign courts went through two major phases. These two phases are quite distinct as regards international jurisdiction [6] and less so as regards the recognition and enforcement of foreign judgments [7]. The following brief account concludes with a description of the international convention provisions governing these matters in force in Greece [8]. 9. The civil procedure of 1834, which was drawn up by the Bavarian jurist G. L. von Maurer and which applied from 25 January 1835 until 15 September 1968 followed French legal thinking (Articles 14 and 15 of the French Civil Code) in providing for the nationality of the litigants to he the main criterion of international jurisdiction. Thus, under Article 28 of the 1834 civil procedure, Greek courts possessed jurisdiction where either the plaintiff or the defendant were Greek. As a result, a Greek national could sue a foreign national, and vice versa, before the Greek courts it respective of the geographic allocation of the dispute or of any other connecting factor providing a link with the Greek State. In addition, however, pursuant to Article 27 of the civil procedure, the international jurisdiction of the Greek civil courts also extended to actions between foreign nationals if they had agreed to submit their dispute to the Greek courts, or if certain, very few, special jurisdictions applied, or if considerations of public policy were involved [9]. 10. The basis of the system was changed by the introduction of the Civil Code (23 February 1946). Under Article 7 (1) of the law introducing the Code, Articles 27 and 28 of the civil procedure were repealed; Article 126 of the law stipulated that foreign nationals were subject to the jurisdiction of Greek courts and could sue or be sued in the same manner as Greek nationals in accordance with the provisions governing jurisdiction. Thus, at least in the case of foreign nationals, jurisdiction was dissociated from the nationality of the litigants and became a function of place: in litigation between foreign nationals or where only the defendant was a foreign national the Greek civil courts had jurisdiction in every case, provided that any one such court had territorial competence for the dispute in question. 11. However, opinions differed regarding disputes under private international law where the defendant was a Greek national. According to the 'resultant' theory [10], the purpose of the legislator in drafting Article 126 of the law introducing the Civil Code was fully to equate foreign and Greek nationals as regards jurisdiction. Consequently, just as, under Article 126, international jurisdiction with regard to foreign nationals was nothing more nor less than the sum total, or the resultant of various particular ;jurisdictions, so in the case of Greek nationals international jurisdiction could not be exercised by the Greek State unless such nationals were also linked by some general or special jurisdiction to the area of jurisdiction of a Greek civil court, their Greek nationality being insufficient for this purpose. On the other hand, the 'distinction ' theory [11], which finally prevailed in jurisprudence in the period up to 1968, distinguished between foreign and Greek defendants, requiring only in the case of the former that some form of jurisdiction should exist and in the case of the latter merely that they possess Greek nationality. This concept ion of jurisdiction as a function of nationality proved in practice to be an unfortunate privilege for Greeks in that it allowed them to be sued in Greek courts without there being any other connecting factor than their nationality, whereas possession of Greek nationality was not sufficient for a plaintiff to be able to bring proceedings against a foreign national in Greek courts [12]. 12. The introduction of the new Code of Civil Procedure (on 16 September 1968) marked the final break with the French system and led to the predominance of the 'resultant' theory. Under Article 53 of the law introducing the Code, Article 126 of the Civil Code was repealed and Article 3 (1) of the Code of Civil Procedure laid down that Greek and foreign nationals were subject to the jurisdiction of the civil courts in so far as a Greek court was competent. The fact that Greek and foreign nationals were referred to on the same basis and on the same level and that Article 3 (1) of the Code of Civil Procedure was stated to be the prime source of international jurisdiction under Greek law resulted, to use the expression frequently encountered in jurisprudence, in Greek law switching from the principle of nationality to the principle of territoriality. Since that time, and it respective of the nationality of any of the litigants, the pre-requisite for international jurisdiction to lie with the Greek State has been, as a rule, that the dispute must be subject to the general or special jurisdiction of a Greek civil court [13]. Only by way of exception, namely in matrimonial disputes and disputes between parents and children, will the Greek nationality of any of the litigants of itself constitute a basis of jurisdiction on the part of the Greek courts (Code of Civil Procedure, Articles 612 and 622). 13. The various individual jurisdictions which thus together make up international jurisdiction under modern Greek law do not diverge all that much from general practice under the laws of the other Community ....
The general section of the Code of Civil Procedure also lays down six concurrent special jurisdictions with the plaintiff being able to choose between them and general jurisdiction (Code of Civil Procedure, Article 41): jurisdiction in respect of legal acts, with either the place where the act was drawn up or the place of performance being taken as connecting factors (Code of Civil Procedure, Article 33); jurisdiction in respect of criminal offences, which in the case of civil disputes arising from acts giving rise to criminal proceedings lies either with the court for the place where the offence was committed or with the court for the place where the consequences of the offence occurred (Code of Civil Procedure, Article 35, Criminal Code, Article 16); jurisdiction in respect of management other than under a court order, which lies with the court for the place of management (Code of Civil Procedure, Article 36); jurisdiction where identical law is applicable, which, mainly in case of jointly defended proceedings, allows the defendants to be sued in a court which has jurisdiction for any one of them (Code of Civil Procedure, Article 37); jurisdiction in matrimonial disputes, which vests in the court for the last place of joint residence of the spouses (Code of Civil Procedure, Article 39); jurisdiction in respect of claims relating to property, where proceedings may be instituted both before the court for the place where the defendant has resided for a reasonable length of time (Code of Civil Procedure, Article 38), and, mainly where proceedings involve a defendant not domiciled in Greece, before the court for the place where property belonging to the defendant or the object in litigation is situated (Code of Civil Procedure, Article 40). With regard to special procedures (Code of Civil Procedure, Articles 591 to 681) Articles 616, 664 and 678 provide for additional forms of concurrent special jurisdiction which in principle favour the plaintiff. 14. The possibility of basing jurisdiction on an agreement between the litigants is very widely recognized in disputes concerning property (Code of Civil Procedure, Articles 3, paragraphs 1, 42 to 44). The agreement may in principle be informal, an agreement in writing being required only where it relates to a potential future dispute. An informal agreement may in principle also he tacit, and be inferred from a defendant's failure to challenge the jurisdiction of the court when entering an appearance at the first hearing of the case. An express agreement is required only where special exclusive jurisdiction is to be set aside. There is a legal presumption that a court on which jurisdiction is conferred has exclusive jurisdiction. In addition, no substantive connecting factor is required between the dispute to which the conferral of jurisdiction relates and the Greek State. The only bar lies in the prohibition against submitting to Greek jurisdiction disputes concerning immovable property situated outside Greece (Code of Civil Procedure, Article 4, first subparagraph, in fine). Lastly, just as jurisdiction may be conferred, it may also be removed with the submission of a dispute to a foreign court; such agreements are not considered as infringements of Greek sovereignty or as contrary to public policy; recourse to foreign courts merely has to be possible so that there is no international denial of justice. 15. Jurisdiction of the Greek State with regard to the substance of a dispute is not a pre-condition for provisional measures to be taken. Of course, such measures may be ordered by the court before which the principal case is pending (Code of Civil Procedure, Articles 684 and 683 (2)). However, they can also be ordered by the court with competence ratione materiae nearest to the place where they are to be implemented (Code of Civil Procedure, Article 683 (3)). Hence, the fact that the principal action is pending before a foreign court or, even where not so pending, is subject to the international jurisdiction of a State other than Greece does not pre vent provisional measures being taken in Greece. 16. Lack of jurisdiction is in general examined by the court of its own motion. However, since jurisdiction can in principle also be based on a defendant's failure to challenge when entering an appearance [15], the question of lack of jurisdiction is only examined by the court of its own motion where the defendant does not enter an appearance at the first hearing or where he appears and does not challenge but his silence cannot constitute a basis for implied jurisdiction because the dispute relates to immovable property situated outside Greece (Code of Civil Procedure, Article 4, first subparagraph), or because the object of the dispute is not property, or because the law provides for exclusive jurisdiction (Code of Civil Procedure, Article 4, first subparagraph, Article 42 (1), first and second subparagraphs, Article 46, first subparagraph, Article 263 (a)).
17. Under the old civil procedure of 1834 (Articles 858 to 860) a distinction was made in the enforcement in Greece of judgments of foreign courts according to the nationality of the party against whom enforcement was sought [16)]. If that party was a foreigner, enforcement was authorized by the presiding judge of a court of first instance and three conditions had to be satisfied: (a) the foreign instrument had to be enforceable in the State of origin; (b) that State must have possessed jurisdiction (which was assessed according to Greek law); (c) the instrument must not he contrary to Greek public policy.
(d) the judgment could not be in contradiction with proven fact, a requirement which led to a limited review of the foreign judgment as to its substance, and (e) no events must have occurred to invalidate the claim included in the foreign instrument. These conditions, which were required by law for enforcement to be authorized, were also extended by judicial practice to the simple recognition of the res judicata status of foreign judgments [17]. 18. Here, too [18], the new Code of Civil Procedure eliminated all distinction between Greek and foreign nationals [19]. it respective of the nationality of the party against whom enforcement is sought, the following conditions must now be satisfied for the enforcement of a foreign judgment to he authorized in Greece (Code of Civil Procedure, Articles 905 (2) (3), 323, points 2 to 5): (a) it must be enforceable under the law of the place where it was delivered; (b) the dispute must have been subject in accordance with Greek law to the jurisdiction of the State in which the judgment originates; (c) the party against whom the judgment has been given must not have been deprived of the right of defence, or the right of participation in general in the proceedings; (d) the foreign judgment must not conflict with a judgment which has become res judicata delivered by a Greek court in proceedings between the same parties and in the same dispute; (e) the foreign judgment must not conflict with pubic morality or public policy. Apart from these conditions, there is no requirement as to reciprocity or application of the substantive law defined as applicable under Greek private international law, nor may the procedural legality or the correctness as to substance of the foreign judgment he verified [20]. Lastly, as regards the enforcement of other foreign instruments, these need merely be enforceable under the law of the place where they were issued and must not be contrary to public morality or public policy (Code of Civil Procedure, Article 905 (2)). 19. The distinction between Greek and foreign nationals has also been abolished as regards both jurisdiction [21] to authorize enforcement and the relevant procedure. In every case, jurisdiction is vested in the single-member court of first instance in the area of jurisdiction in which the debtor is domiciled or, where this is inapplicable, is resident; where neither connecting factor applies jurisdiction is vested in the single-member court of first instance in Athens. The procedure followed is that applicable in non-contentious proceedings (Code of Civil Procedure, Article 905 (1)), and an enforcement order may be challenged by means of an ordinary appeal, reasoned appeal against a default judgment, judicial review and appeal in cassation (Code of Civil Procedure, Article 905 (1), second subparagraph, Article 760 to 772), none of which have suspensive effect under the law (Code of Civil Procedure, Articles 763, 770, 771 and 774). A foreign instrument, the enforcement of which has been authorized, is enforced in accordance with the enforcement procedure and measures provided for under Greek law [22]. 20. Recognition of the res judicata status of foreign judgments is basically subject to the same conditions. The only difference is that instead of the judgment having to be enforceable under the law of the place where it was delivered [23], it must have res judicata status under Greek law (Code of Civil Procedure, Article 323, point 1). Recognition of res judicata status is not subject to any special procedure (Code of Civil Procedure, Article 323 pr.) and such status may be recognized as an incidental matter by any judicial or administrative authority [24]. Only in the case of the recognition of the res judicata force of foreign judgments concerning the status of persons, in particular with respect to divorce, must the same procedure be followed as for authorization of enforcement (Code of Civil Procedure, Article 905 (4)). 21. Greece is not a contracting party to any bilateral international conventions which directly govern jurisdiction [25]. Any c1auses in agreements placing foreign nationals on the same legal footing as Greek nationals are no longer relevant [26], from the point of view of jurisdiction, since such assimilation is now a rule of ...
end of page Official Journal of the European Communities 1986 No C 298/7 22. Greece is a contracting party to eight 'single' [28] bilateral
conventions concerning recognition and the enforcement of judgments of
foreign courts; these are with Czechoslovakia (1927, Law 361711928), Yugoslavia
(1959, Decree 4007/1959), the Federal Republic of Germany (1961, Law 4305/1963),
Romania (1972, Decree 42911974), Hungary (1979, Law 1149/1981, Articles
24 to 31), Poland (1979, Law 1184/1981, Articles 21 to 31), Syria (1981,
Law 1450/1984, Articles 21 to 29) and Cyprus (1984, Law 154811985, Articles
21 to 28). As regards their content, these conventions do not differ substantially
from Greek internal law in the Code of Civil Procedure, and they apply
it respective of the nationality of the litigants. They do not permit
review as to substance, and they do not make recognition dependent on
the substantive law applied in the foreign judgment except in questions
concerning the status of persons. The most detailed of these conventions,
that between Greece and Germany [29], covers the enforcement
not only of court judgments but also of court settlements and authentic
instruments (Articles 13 to 16); it also covers non-contentious proceedings
(Article 1 (1), subparagraph 1) and interim orders (Article 6) and allows
recognition to be refused on grounds of lack of jurisdiction solely where
the courts of the country in which recognition is sought have exclusive
jurisdiction, or where the court which gave the judgment heard the case
exclusively on the basis of jurisdiction in respect of matters relating
to property (Article 3 (3) (4)).
Official Journal of the European Communities 1986 No C 298/8
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