PROVISIONAL ENFORCEMENT QUESTIONNAIRE National Report Greece Prof. Dr. Konstantin Kerameus/ Dr. Stelios Koussoulis (University of Athens) Generally, provisional enforceability is the quality of judgments as enforceable instruments in spite of their being subject to methods of appeal 1. In Greece, provisional enforcement occurs even before a judgment constitutes a res judicata, regardless of any ordinary methods of review (opposition or appeal), which may still be used or which have already been used and are still pending 2. The legal provisions referring to provisional enforcement are integrated into the law of enforcement (articles 907 914 of the Greek Code of Civil Procedure [hereinafter: CCP]). It is notably marked that these provisions are distinct from provisional measures, which are dealt with in a different chapter (articles 682 et seq. CCP) and refer to totally different conditions. Provisional measures attempt, inter alia, to secure future enforcement, whereas provisional enforcement aims at the fulfillment of a substantial right, promptly initiating regular enforcement proceedings. 3 1. Provisionally enforceable titles a. According to Greek law (article 904 CCP), instruments that are enforceable by execution essentially include several groups 4. Among these are final judgments, which constitute a res judicata, i.e. those, which are no longer subject to ordinary methods of review (opposition or appeal), or are declared provisionally enforceable. The wording of the above-mentioned article suggests that only final judicial decisions can be declared provisionally enforceable, whereas all other enforceable instruments, such as authentic instruments or arbitral awards, cannot be declared provisionally enforceable. b. Judgments of provisional measures and orders for payment do not need to be declared provisionally enforceable, since they are enforceable by 1 See K. Kerameus, Enforcement in the International Context, Offprint from Recueil des cours, vol. 264 (1997), 236. 2 See Pelayia Yessiou Faltsi, Civil Procedure in Hellas, (Kluwer-Sakkoulas 1995), 396. 3 See Kerameus, supra note 1, 237. 4 See particularly Konstantinos Kerameus Phaedon Kozyris (Eds.), Introduction to Greek Law, (Kluwer-Sakkoulas 1992), 294. 1
law as of the time they where rendered (articles 700, 631 CCP). Provisional execution, therefore, may be based only on a judgment. c. It must also be noted that no judgment for the determination of judicial costs and expenses can be declared provisionally enforceable (909 nr. 2 CCP). 2. Determination of provisional enforceability a. i. Provisional enforceability is always provided upon request by the winning party and must be explicitly ordered by the court, the order being included in the judgment rendered (article 907 CCP). There are neither provisionally enforceable judgments operating by law in the Greek legal system nor cases, where the court could order provisional enforceability ex officio. The application for provisional enforceability must be made when filing an action with the court of first instance, either in the main text of the action or subsequently, in the documents filed with the court before the hearing. Thus it is the court of first instance that will decide on awarding the provisional enforceability. ii. Such a request is, however, also admissible even during the proceedings of opposition or appeal (article 913 CCP). In the latter case, it is the court of appeals, which is competent to declare the provisional enforceability of the attacked judgment. b. i. The CCP distinguishes between optional and compulsory provisional execution 5. The former, covering a wide scope of cases indicatively listed in article 908, lies at the discretion of the judge, who is called to decide, by estimating the conflicting interests of both parties, whether enforcement proceedings must promptly be allowed. Some of the cases mentioned are judgments based on an admission by the defendant, on confession, on public or accepted private documents, judgments for maintenance, intellectual property, torts, labour or commercial matters etc. 5 See Pelayia Yessiou Faltsi, supra note 2, 397. 2
ii. By the latter, comprising of certain judgments restrictively listed in article 910, the judge is obliged to order provisional enforcement at the winning party s request, without examination of further requirements. These cases, where the judge is compelled to order provisional enforceability upon request, are (1) judgments ordering the return of a leased thing or (2) the payment of rent, when already due and unpaid, (3) judgments with regard to bills of exchange, promissory notes and checks and (4) judgments involving maintenance claims or unpaid salaries. c. i. Provisional enforceability is, however, also subject to exceptions; it is excluded in a limited number of cases (art. 909 CCP), particularly (1) for judgments against the State, town municipalities and village communities, (2) judgments for judicial costs, as mentioned above, (3) in cases where the law explicitly requires a res judicata or a completely irrevocable judgment for the enforcement to begin and (4) judgments involving child recognition or rights of parental control. ii. The first of the abovementioned cases raises some questions. The exclusion of provisional enforceability is, despite its special character, extended to all legal persons, enjoying by virtue of a special statutory provision, the privileges of the State. According to older decisions of Areios Pagos, this restrictive provision, involving prohibition of provisional enforcement against the State, should be understood as referring to only non-money claims, since execution for money claims against the State was entirely forbidden (by virtue of article 8 of the Law 2097/1952). However, the content of this provision must be nowadays reviewed in light of article 4 of the novel law 3068/2002 6, as well as the latest judgment of Areios Pagos 7, allowing enforcement against private property of the State, by virtue of article 6 of the European Convention for Human Rights. 6 Published in the Government Gazette, A 274. 7 Areios Pagos in plenary session, decision 21/2001, Dike International 2002, 20. 3
d. Provisional enforceability may be limited to a part of a claim (908 CCP). If the court, using its discretion, has ordered provisional enforcement for part of a claim, the interest responding to this part is not included in the provisionally enforceable judgment, unless there is explicit reference thereto 8. e. i. The court, exercising its discretion in accordance with article 908, must examine whether there are special reasons for providing provisional enforcement or whether profound damage will be caused to the winning party due to the delay in enforcement. It nevertheless may refuse provisional enforcement if irreparable damage to the defeated party, due to early execution, seems to be probable (908[2] CCP). It is generally the court s task to carefully estimate the conflicting interests of both plaintiff and defendant in light of the existing probability of a successful attack on the enforceable instrument. ii. In general, all requirements of execution also apply to provisional execution: the amount of the claim must de exactly defined in the provisionally enforceable instrument and the claim may not depend on a suspensive condition or a term, in order to be executed (articles 915, 916 CCP). 3. Extent of provisional enforceability a. It has been pointed out that the term provisional enforceability does not exactly respond to the real meaning of the institution, since provisional enforcement in Greece is nothing less than normal enforcement proceedings in terms of quality, procedure or results, its only difference being that it starts earlier than normally expected 9. That means provisionally enforceable judgments can be executed by all normal means of enforcement. 8 See Kerameus/Kondylis/Nikas/(-Nikolopoulos), Code of Civil Procedure: Article-by-Article Commentary (in Greek) II (2000) 908 nr. 2. 9 See G. Nikolopoulos, Enforcement (in Greek), (Sakkoulas 2002), 58; P. Yessiou-Faltsi, Law of Execution (in Greek), General part, (Sakkoulas 1998), 237. 4
b. The only kind of execution not applicable to provisional enforcement is the Order for Declaration of Will; as it is required (949.1 CCP), a judgment must constitute a res judicata in order to be enforceable in that way. 4. Security a. In cases of optional provisional enforceability the judge may, upon request, order the posting of security on behalf of the creditor, for the whole or part of the claim (911 CCP). The amount of security and the time limit for its posting are determined in the same judgment. b. By posting of such security, special circumstances are to be taken into account, related to the financial status of the winning party or other reasons, which create a risk of not being able to obtain restitution in case the judgment is successfully challenged. c. i. This security is posted according to the general provisions of articles 162-172 CCP. As provided in article 162, the court uses its discretion to estimate freely the amount of security, which is not negotiable. In determining the exact amount of security, the main factors taken into consideration are the amount of the claim and the trustworthiness of the creditor. ii. This amount is deposited at the Fund for Deposits and Loans (163 CCP). Proof of payment must be deposited at the court that ordered the security, within the time limit set for posting the security, which can be extended by the court, upon request. A pledge on the posted security is then directly established in favor of the debtor. Other usual ways of security, according to article 164, are the posting of titles of value, letters of guarantee from a reliable bank which is most common and mortgages. d. The court may nevertheless order the public deposition of the claimed amount or object, if it is suitable for deposition, until a judgment with a 5
res judicata effect is issued, as an alternative to the posting of security (911 CCP). 5. Stay of provisional enforceability a. Article 912 CCP provides for the stay of provisional enforcement only when the provisionally enforceable judgment has already been attacked through an ordinary method of review, i.e. an opposition against default or an appeal, provided that such method of review has been found admissible. b. In this case a court, which has rendered a provisionally enforceable judgment, is called, at the request of the defeated party, to re-estimate the conflicting interests and forecast whether success of the method of review already used seems probable 10. Under these conditions, the court of first instance may suspend execution before the hearing of the opposition or appeal, ordering the posting of security by the debtor, or without security. The procedure followed is the one of provisional measures, but the summoning of the opponent at the hearing is required. c. In addition, even the court of appeals, upon request of the party, may order suspension of provisional enforceability (art. 913 CCP). Accordingly, great powers of review are entrusted to the court adjudicating on the appellate level; it may also repeal all decisions it rendered in regard to provisional enforceability, either ex officio or at the request of a party. 6. Liability issues a. If a higher court reverses, in whole or in part, the provisionally enforceable judgment after it has been executed, article 914 CCP provides for the return to the previous status quo, i.e. the status quo before 10 P. Yessiou-Faltsi, supra note 2, 399. For the relevant systems see Kerameus, supra note 1, 245-246. 6
the execution. Such an order is given by the court adjudicating on a successful method of appeal, upon request by the party. b. i. Parallel to this kind of judicial protection is the right of the winning party to claim damages for the enforcement of the already reversed judgment (940 [1] CCP). 11 Special requirement of this option is that the opposing party, which proceeded with the execution, must have already known or ignored because of gross negligence that he had no substantive right to enforce. ii. Concerning the legal basis of that claim, legal theory regards it as a special form of tortuous liability (914 of Civil Code), since the knowledge or gross negligence of the absence of substantive right is contrary to good morals, even though the enforcement proceedings were based on lawful provisional enforceability 12. Further requirement of the said claim is the causality between damage and enforcement 13. Under certain conditions liability based on unjust enrichment cannot be excluded (904 of Civil Code) 14. 7. Article 47 of Regulation 44/01/EC. a. Art. 47 Reg 44/01/EC may apply to provisionally enforceable judgment rendered in a member state of the European Union, if one seeks recognition and enforcement of it in Greece, and provides for the possibility of taking provisional measures before the process for the declaration of enforceability of the foreign judgment is completed, in order to secure its future enforcement. In this case the Greek provisions about provisional measures, i.e. articles 682 et seq CCP, are applied. The creditor may thus apply for all available provisional, including protective, measures provided by the Greek legislation. That includes not only conservatory measures, as for instance preliminary seizure, prenotice of mortgage, judicial custody or judicial security, but also the 11 See the comparative remarks by Kerameus, supra note 1, 246-248. 12 G. Nikolopoulos, supra note 9, 63-64. 13 Areios Pagos, decision 456/2002, unpublished. 14 Athens Court of Appeals, decision 3058/1994, NoB 1995, 713-714. 7
so-called regulatory provisional remedies, such as provisional arrangement of a situation and provisional adjudication of an amount. b. General requirements for these measures are the existence of an urgent situation or a need to avoid an imminent danger (682 CCP). Despite some doubts as to whether a distinction between the above notions is obtainable, it is now accepted that, while an urgent situation refers to circumstances demanding a prompt provisional arrangement, the avoidance of an imminent danger, as a condition for provisional remedies, covers the need to secure future enforcement. c. During the procedure for granting provisional measures according to article 47 1, the foreign creditor must present a certified copy of the provisionally enforceable judgment and also an official translation thereof, as proof for the existence of his substantive right. In view of the fact that, according to Greek law, this right only needs to be considered as probable by the judge, for provisional remedies to be granted, there are no particularly strict requirements for the administration of this evidence. Proof of service is necessary, especially if the judgment was rendered in absence of the opposite party. d. Article 47 stipulates an option of taking provisional remedies based on the decision, which declares the enforceability of foreign judgment. A similar provision was included also in article 39 2 of the Brussels Convention and saves a great deal of speed and costs for the creditor, since it is not necessary for him to obtain a separate decision, granting provisional remedies. Provisional measures most frequently and effectively used in Greece to this regard are preliminary seizure and prenotice of mortgage. In this way, future enforcement is secured without the debtor s consent. e. As Regulation 44/01/EC is directly applicable in Greece, no other special legal provisions apply to provisionally enforceable foreign judgments. Consequently, in case that the foreign judgment was success- 8
fully appealed in the member state of origin, article 46 1, 3 are directly applicable. f. In case of a remedy against the declaration of enforceability, again article 47 3 will be directly applicable and the creditor will be able to take only protective measures provided in CCP, i.e. prenotice of mortgage, preliminary seizure, judicial security, judicial custody. If such provisional measure is already granted by virtue of a separate decision, articles 696-698 CCP stipulate that the decision can be modified or repealed in light of new facts that justify such action, Therefore in case the remedy against the declaration of enforceability is or is expected to be- successful, the court can reform or rescind provisional measures. 8. Further protective measures a. After the rendering of a provisionally enforceable judgment, the creditor may proceed to the enforcement properly speaking and therefore cannot apply for protective measures. b. The only explicit provision of the Greek legislation for provisional or protective measures after the issuance of an enforcement instrument is article 724 CCP, stipulating that, based on an order for payment, a creditor may avail himself of specific provisional measures to secure the amount of the order. The provisional measures provided in this article are pre-recordation of mortgage and preliminary attachment or garnishment. The same article stipulates, though, that the court that rendered the order for payment may order the stay or limitation of the provisional measure s enforcement, upon request of the debtor. 9