Case law Developments in PIL

The Court of Appeal of Piraeus on the Non-Recognition of a Dutch Judgment on Maintenance

On 21 May 2020, the Piraeus Court of Appeal ruled that a judgment on a family maintenance matter, issued by the Tribunal of Rotterdam in 2007, did not qualify for recognition in Greece (ruling No 383 of 2020, unreported).

The Court reached this conclusion on the basis of Article 34(2) of Regulation 44/2001 (the Brussels I Regulation).

According to the latter provision, a judgment that was given in default of appearance should not be recognised “if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so”.

Proceedings in the Netherlands

In 2007 a claim for maintenance was filed by a mother on behalf of her minor child, both living in the Netherlands, against the father, a resident of Greece. The claim was filed on 5 January 2007 before the Tribunal of Rotterdam. The hearing was scheduled for 8 August 2007. The defendant failed to appear. The Tribunal issued its ruling on the day of the hearing. It then set a three-month deadline for appeal and declared that the judgment was immediately enforceable.

Proccedings in Greece – First instance

In February 2009, an application for a declaration of enforceability of the Dutch judgment was filed before the Piraeus Court of First Instance. The court stayed its proceedings, and ordered the applicant mother to produce evidence concerning the service of the claim to the father [ruling No 3511 of 2009, unreported].

The case was rescheduled to hear the applicant. The application, however, was dismissed. The court stated that the sole document produced was a letter by the Tribunal of Rotterdam, dated 2 April 2007, declaring that the claim had been served on the defendant. Still, no evidence of receipt by the defendant was submitted. The Court concluded, accordingly, that his rights of defence were violated [ruling No 358 of 2012, unreported].

Proceedings in Greece – Second instance

The mother appealed before the Piraeus Single Member Court of Appeal. She complained that the Court of First Instance had acted ultra vires, arguing that, pursuant to Regulation 44/2001, first instance courts are allowed to assess the conditions for recognition and enforcement of a judgment, not the grounds for refusing such recognition.

The matter was referred to a Chamber of the same court [ruling No 455 of 2018, unreported]. The Chamber allowed the appeal and quashed the first instance ruling on the grounds invoked by the appellant. It stated however that, as a second instance court, it had the powers under the Regulation to examine any grounds for refusal.

The Service of Process Issue

The Piraeus Court of Appeal devoted a lengthy analysis to the issue whether the act instituting the Dutch proceedings had been properly served on the defendant. The main findings may be summarised as follows:

(a) The certificate issued under Articles 54 and 58 of Regulation No 44/2001 by the competent body of the Rotterdam Tribunal states that service took place on 2 April 2007. The registered letter sent to the defendant bears the same date.

(b) That just cannot be possible: the sending and delivery of a letter sent from Rotterdam to Athens cannot occur on the same day.

(c) The appellant failed to produce an acknowledgment of receipt by the defendant.

(d) The claim was not officially translated from Dutch to Greek. There was a translation attached, however not signed by an authorized person to that cause. This happened only in April 2010, i.e. after the proceedings were stayed by the Piraeus CFI in 2009.

(e) No evidence was given of the fact that the defendant failed to challenge the judgment in the Netherlands, although it was possible for him to do so: he received neither the document instituting proceedings, nor the judgment itself.

(f) By reviewing the Dutch ruling, the Piraeus Court of Appeal noticed that the Rotterdam Tribunal failed to examine the timeliness of service on the defendant; it simply confirmed his non-appearance at the hearing in Rotterdam.

In light of above, the Piraeus Court dismissed the appeal.

Assessment

As a starter, the judgment demonstrates that courts are still confronted with exequatur issues, in spite of its abolition almost a decade ago.

In addition, judges and lawyers should be wary of the proper applicable law. In the case at hand, the courts were right in resorting to Regulation 44/2001, in light of Article 75(2)(b) of the Maintenance Regulation. Nevertheless, the core of the matter remains the same (lack of proper service is a ground for refusing recognition also in accordance with Article 24(b) of the Maintenance Regulation).

The reversal of the first instance ruling was correct. Article 42 of Regulation 44/2001 is adamant about it, so is Article 30 of the Maintenance Regulation.

The referral in second instance is demonstrative of a typical lack of cohesiveness between the text of the Regulation and national declarations of the Member States. As evidenced in Annex III of the Regulation 44/2001, Greece declared that the Court of Appeal is competent to try appeals pursuant to Article 43(2) of the Regulation. At that time (2001) and for many years after, a court of appeal consisted exclusively of three judges. In 2015 the law changed. Pursuant to the new Article 19 of the Greek Code of Civil Procedure, the competent court for examining appeals against judgments rendered by a Single Member Court of First Instance is the relevant Single Member Court of Appeal. In the case at hand, the Piraeus Single Member Court of Appeal considered that the three-member chamber should remain competent, because the Hellenic Republic did not amend its declaration. Legal scholars have already expressed a different view. The fact of the matter is that those problems affect procedural economy, especially in sensitive cases, such as maintenance claims.

Finally, in regards to the central issue of service, the following remarks may be made.

First, the court correctly found that the conditions for service of the claim to the defendant were not met, as it was not proven that the document was received or translated from Dutch into Greek. However, the judgment lacks sufficient reasoning with respect to the defendant’s ability to challenge the foreign decision in the state of origin.

Secondly, no reference is made to judgment of the Court of Justice in the Lebeck case, where the Court stated that   “proceedings to challenge a judgment” referred to in Article 34(2) of Regulation 44/2001 must be interpreted as also including applications for relief when the period for bringing an ordinary challenge has expired. Hence, the margin of the court’s test should have been expanded to the time of expiry declared by the Netherlands under Article 17(4) and 23(1) of the Service Regulation.

Finally, and most importantly, the Piraeus court omitted any reference to the ruling in ASML, where the Court ruled that

Article 34(2) of Regulation No 44/2001 is to be interpreted as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.

Therefore, service of the default judgment after the expiry of time for appeal or an application for relief does not suffice, and the defence under Article 34(2) of Regulation 44/2001 is still active.

Concluding Remarks

One additional point worth noticing is the duration of the proceedings in Greece, which for maintenance standards is utterly unbearable. It is very fortunate that sooner or later Section 1 of Chapter 4 (Articles 17 et seq.) of the Maintenance Regulation will prevail in practice.

Admittedly, the abolition of exequatur will not solve all problems, bearing in mind the second set of remedies available to the judgment debtor in the state of destination. It is hoped that a common approach could be achieved even in the last mile, i.e. the national law on enforcement.

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