Tag Archives: Greece

Serving Process on US Defendants in Greek Proceedings: A Case Law Survey

Contributor Apostolos Anthimos has a nuts-and-bolts post about Greek caselaw on the Hague Service Convention in US-related cases.

In my previous post, I presented two recent decisions of Greek courts on the application of the 1965 Hague Service Convention in Greece. Following that post and the release of my recent book on service of process abroad, I will now focus on reported case law regarding service of process on defendants in the United States in Greek proceedings.

Case Where Greek Courts Have Refused To Render Default Judgments

Greek courts have refused to render a default judgment under the following circumstances:

  1. When the claimant produces to the court only the certificate of service showing service on the competent (Greek) Public Prosecutor’s office. 1 (Supreme Court 250/1993, 657/1995, 835/2007, CoA Larissa 740/2008, CoA Patras 453/1993).
  2. When the claimant does not produce a certified translation of the US certificate of service, i.e., he only includes the original or a true copy with no Greek translation. (1st Instance Multi-Member Court Samos 25/2012).
  3. When the document reaches the US competent authority or the defendant after the day of the hearing. (CoA Athens 734/1992, 1st Instance Multi-Member Court Amfissa 105/1992).
  4. When domestic time limits for the appearance of the defendant before court have been violated. 2 In this case, even if the claimant produces the US certificate of service and a Greek translation attached, the hearing will be adjourned, and fresh service is required (Supreme Court 1566/2010).
  5. When the claimant surreptitiously opts for fictional service or service by publication, 3 without exploring the possibility of using conventional methods of service. (Supreme Court 503/2011 &, CoA Piraeus 730/2008). However, if the claimant exhausts conventional methods with no result, he’s allowed to proceed to the fictional service. (1st Instance Multi-Member Court Athens 449/2004). Hence, fictional service used after unsuccessful attempts at conventional service is legitimate (1st Instance Court Thessaloniki 38292/2009 & 20721/2010).

Case Where Greek Courts Have Rendered Default Judgments

On the other hand, Greek courts rendered a default judgment under the following circumstances:

  1. When six months have passed since the day of transmission, according to Article 15 ¶ 2(b) of the Service Convention, even if the document has been sent back to Greek channels as undeliverable. (Supreme Court 851/2007 & 433/2001).
  2. When the claimant opts for service based on US statutes (in application of Article 137 Greek CCivP, which allows this form of service). (CoA Athens 223/2012, see my previous post).
  3. When the claimant opts for service on a legally appointed proxy in Greece, thus avoiding service of process inthe US. (Supreme Court 909/2004, CoA Dodecanese 200/1998, CoA Larissa 474/2006).

Finally, as noted in my previous post, serving documents instituting first- and second-instance proceedings, or even proceedings in the Supreme Court, in within the field of application of the Service Convention, unlike serving other documents that do not institute a claim (summonses for sworn statements, writs of attachment, etc.), where domestic law prevails [Supreme Court 1658/2009, 266/2004, 1447/1988, CoA Dodecanese 81/2008 & 234/2005).

Notes:

  1. According to Article 134 Greek CCivP, for the purposes of serving foreign defendants, documents are to be served on the Public Prosecutor of the competent court, who is entrusted with forwarding the document to the Ministry of Foreign Affairs. From there, the document will be transmitted to the Receiving Agency of the respective country, for delivery to the defendant.
  2. According to Article 229 of the Greek CCivP, the claim has to be served 90 days before the hearing.
  3. According to Article 135 Greek CCivP, persons of unknown residence are to be served in a fashion similar to the particulars of Article 135 Greek CCivP, plus its publication in two newspapers (one in Athens, the capital, the second in the venue of the court).

On the Application of the Hague Service Convention in Greece

Today Letters Blogatory welcomes the first contribution from new IJA Brigade member Apostolos Anthimos, a Thessaloniki lawyer and a member of the LLM visiting faculty at the International Hellenic University. Welcome, Apostolos! His maiden post covers two recent Greek cases on the Hague Service Convention.

The Hague Service Convention was ratified by the Hellenic Republic almost 30 years ago. Although the respective act was published back in 1983, its actual implementation began only 6 years later, i.e., sometime in 1989. The Convention is a well-known instrument in disputes with foreign elements; a recent search on Greece’s most reliable legal database has returned 185 hits. My report will focus on two judgments from 2012, dealing with service of process in the USA.

I. In the first case (Supreme Court, Nr. 221/2012, not yet reported), the plaintiff, after service of the initial documents, 1 summoned a non-party witness to give a sworn statement before a Greek notary public. Under Greek procedural law, the defendant is entitled to receive notice of the date of the hearing and an opportunity to attend. Here, although service of the notice was proper under Greek law, the defendant claimed that the plaintiff should have served the notice under the Convention and demanded that the sworn statement of the non-party witness be excluded from evidence.

In the early stages of its application, there was some confusion as to the distinction between the writ of summons or an equivalent document and other documents, following the initial stage of proceedings. First instance courts, for example, have rendered rulings according to which personal service was imperative even for judgments or writs of attachment. But in the late ’90s, the Supreme Court drew a clear-cut line between documents instituting proceedings and subsequent judicial or extrajudicial documents in the course of the same proceedings: For the former, the requirements stated under Article 15-16 are to be respected under any circumstances, whereas for the latter, there is no obligation to follow the prerequisites of the Service Convention. Hence, service of later documents can take place according to the Greek Code of Civil Procedure (CCivP). The above case law has been constantly enriched over the past 15 years, and constitutes nowadays the prevailing view both in theory and practice, especially after the ruling of the Supreme Court’s Plenum in 2009 (Nr. 22/2009, Epitheorissi Politikis Dikonomias = Civil Procedure Review 2009, p. 776 et seq.).

Until recently, the respective case law was related to enforcement documents. The novelty of the present ruling lies in the fact that it is the first judgment expanding the rule of non-application of the Convention to notices requiring witnesses to appear and give sworn statements.

II. In the second case [Athens CoA Nr. 223/2012, Efarmoges Astikou Dikaiou & Astikou Dikonomikou Dikaiou—Theory and Practice of Civil Law & Civil Procedure Law 2012, p. 760 et seq.] the issue at stake was whether notice of appeal could be served by virtue of the law of the State addressed. In particular, the appellant in a Greek case, instead of making use of the service methods stipulated in the Convention in order to notify the appellee (in the USA) of the appeal, opted to serve the document pursuant to Rule 1.080(b) & (f) of the Florida Rules of Civil Procedure. The Athens Court of Appeal accepted the method of service chosen on two grounds: first, because Article 137 Greek Code of Civil Procedure grants the right to serve documents according to the provisions and formalities of the State addressed; and secondly, because Articles 10(c) & 19 of the Convention allow any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, to the extent that the internal law of the latter State permits methods of transmission, other than those provided for in the preceding Articles. Given the fact that no indication to the contrary was evidenced in the ensuing proceedings, the court found no reason to reject the certificate of service produced by the appellant.

Notes:

  1. The plaintiff, as is proper under Greek law, served the documents by remise au parquet, in other words the so-called fictional or deemed service (Art. 134 & 136 CCivP).

Case of the Day: H-D Michigan v. Hellenic Duty Free Shops

The case of the day is H-D Michigan v. Hellenic Duty Free Shops (7th Cir. 2012). We first saw this trademark licensing dispute on September 27, 2011, when the question was whether the judge could extend a temporary restraining order past the ordinarily permitted time in order to allow the plaintiff, H-D Michigan LLC, a Harley Davidson entity, to effect service of process on the defendant, Hellenic Duty Free Shops S.A., in Greece—the judge did extend the TRO as Harley Davidson requested, and ultimately issued a preliminary injunction. We saw the case again on Feb. 20, 2012, when the question was whether Harley Davidson was entitled to an anti-suit injunction to enjoin related proceedings in Greece (again, the judge said yes).

Hellenic appealed both decisions, though I will focus here on the issues about service of process as they relate to the TRO rather than on the anti-suit injunction. Hellenic argued that the TRO was improper because it had not been served with process at the time of the entry of the TRO. The court rejected that argument, calling it “preposterous” and “refuted by the plain language of Rule 65, which permits the issuance of a preliminary injunction ‘only on notice,’ or the issuance of a temporary restraining order in some cases without ‘written or oral notice to the adverse party or its attorney.’” The court also raised a practical point: “[B]ecause formal service of process under the Hague Convention or other provisions of law can take months, acceptance of [Hellenic's] argument would have the unfortunate effect of immunizing most foreign defendants from needed emergency injunctive relief.” I think that point has force, but it still seems to me, as I noted just recently in the discussion of the Fellowes case and in my comments to Peter Bert’s post, that there is a problem lurking here: assuming that the notice necessary to support a preliminary injunction is embodied in a judicial document, and assuming that the Hague Service Convention applies to transmission of all judicial documents, not just summonses, does a plaintiff risk violation of the Convention by providing notice outside the prescribed channels for service?