On the Application of the Hague Service Convention in Greece
Posted on March 8, 2013
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.