Questionnaire concerning provisional measures National Report Greece

Konstantinos Trivoureas, Athens

1. Definition

1.1 The Greek Code of Civil Procedure (hereinafter CCP) provides for an extensive

system of provisional remedies (measures) in its fifth Book, more specifically in Arts.

682-738 CCP. There are seven expressly mentioned provisional measures: a) judicial

security, b) pre-notice of a mortgage, c) conservatory attachment, d) judicial

custody, e) provisional adjudication of a claim (interim payment), f) provisional

regulation (settlement) of a situation and g) sealing, unsealing, inventory or

public deposit of property. Parallel to this regulation, the Greek procedural system

vests the judge or the court with a wide freedom as to the formulation and granting of

provisional remedies not expressly named in the CCP, under the condition, that these

are appropriate for the case (Art. 692 I CCP). This latter jurisdiction of the courts

leads to the creation of a general category of (regulatory) provisional remedies, which

although they may vary as to their content and their final form, they must fulfill the

relatively strict conditions for the granting of any provisional remedy under the Greek

procedural law. All these provisional measures (e.g. the seven expressly named and

the other not expressly mentioned in the CCP) do fall, at least prima facie, under the

definition of provisional measures, given by the ECJ in the Reichert judgment.

1.1–1.3 The trifurcated classification proposed in the questionnaire, although

departing from the German understanding and construction of the procedure of

provisional remedies, cannot be deemed as completely strange or inapplicable to the

respective Greek regulation.

According to the proposed classification, judicial security, pre-notice of a

mortgage and above all conservatory attachment would fall under subdivision 1.2.1 of

the questionnaire. Judicial custody (equivalent to the German Sequestration) and

sealing, inventory or public deposit of property may be dealt in a broad sense under

both 1.2.1 or 1.2.2. These provisional remedies do secure the future enforcement of a

monetary claim or a claim for specific performance by maintaining the legal status

quo of the respective objects. Their primary functional feature, being exactly the

securement of future enforcement, explains their classification under subdivision

1.2.1.

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Under subdivision 1.2.2 would belong the majority of the provisional

measures concerning the provisional regulation of a situation (in Greece widely used

for the interim regulation of disputes involving the possession of property) and also

the greater part of the measures falling under the general jurisdiction of the courts to

order an unnamed appropriate provisional measure.

Provisional adjudication of a claim (interim payment) falls undoubtedly under

1.2.3. This subdivision would include also the provisional measures for the regulation

of a situation, which in extreme cases and under strict preconditions may lead to the

provisional satisfaction of a non-monetary claim.

1.3 Above under 1.2.

1.4 Greek legal theory1 favours an alternate distinction between two main categories

of provisional remedies: a) conservatory measures, which tend to secure the future

satisfaction of a substantive right2 and b) regulatory provisional measures, granted in

order to provisionally settle disputed situations through orders for specific acts,

omissions or indulgences, e.g. in disputes related to possession, unfair competition,

patent rights or family relations. The regulatory measures for the provisional

settlement of disputes are not enumerated in the CCP and fall within the scope of the

general descriptive term “provisional settlement (regulation) of a situation” in Art.

731 CCP3. A particular kind of provisional measure classified to this second category

is the provisional adjudication of a claim. The Greek procedural system gives more

attention to the character, e.g. to the nature of the provisional remedy sought than to

the effect, that such a remedy would eventually provide for the rights or obligations of

the parties.

1.5 Early discovery and other pre-trial devices (search orders) are not known to Greek

law. Evidence is confined solely within the limits of a formal lawsuit except in cases

of imminent danger, for example destruction of a means of proof (Art. 348-351

CCP)4. Despite this fact, Art. 725 II CCP provides for the judicial custody of

commercial or professional books or documents, if the applicant shows that he has a

1 Pelayia Yessiou – Faltsi, Civil Procedure in Hellas (in English), p. 243. 2 Greek legal theory characterises as conservatory measures the judicial security, the pre-notice of mortgage, the conservatory attachment, the judicial custody and the sealing, inventory, or public deposit of property. 3 S. also supra 1.1 under f. 4 Konstantinos Kerameus/Phaedon Kozyris, Introduction to Greek Law, 2nd Edition 1993, p. 280.

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right to inspect the documents according to the substantive law5. It should be also

noted, that such a procedural possibility may not have an effect similar to a search

order, as it presupposes the substantive right of inspection and the specification of the

respective books or documents. Thus, provisional measures for the preservation of

evidence are not very common in Greek law practice.

2. Measures securing the enforcement of judgment (attachment orders) 2.1 The question is to be understood as to which provisional measures under the

respective national law secure the future enforcement of monetary claims. Under this

perspective the provisional measures securing the future enforcement of a monetary

claim in the Greek procedural system are the following: judicial security, pre-notice

of a mortgage, conservatory attachment and provisional adjudication of a claim

(interim payment). Sealing, unsealing, inventory or public deposit of property may

function as a means of securing the future enforcement of a monetary claim as well as

of a claim for specific performance (e.g. the applicant’s claim on a certain movable or

immovable object).

2.2-2.2.2 The provisional measures referred in other countries as injunctions or

restraining orders and aiming to the securement of an individual claim for specific

performance fall in Greece mainly within the scope of the provisional regulation of a

situation (Art. 731 CCP) and the judicial custody. Practically (very) important is the

first provisional remedy, which may be formed with wide flexibility by the judge or

the court according to the needs of the case (Arts. 692 I and 732 CCP).

2.3.1-2.3.1.2 The claim to be secured through the provisional measure does not need

to be due, but it has to be already born6, i.e. its prerequisites according to the

substantive law should have been met. Future claims cannot be protected. On the

other hand future damages may constitute the basis for granting a provisional remedy,

provided that the underlying right to compensation already exists7.

5 See decision No. 835/1989 of the three-member district court of Piraeus published in the legal journal Dike 1989, p. 250. 6 Including claims dependent on a condition or term, Art. 682 I b CCP, compare also decision No. 16788/1994 of the one-member district court of Thessaloniki, published in the legal journal Armenopoulos, 1996, p. 1030 f. 7 S. also decision No. 29036/1995 of the one-member district court of Athens, published in the legal journal Armenopoulos 1997, p. 110.

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2.3.1.3-2.3.1.4 Generally the existence of an enforceable (also of a provisional one)

instrument impedes the granting of a provisional remedy because for lack of legal

interest (Rechtsschutzinteresse)8. In special cases, where an enforcement of the title is

not possible or if the enforceable instrument cannot lead to the registration of a pre-

notice of a mortgage and the applicant is interested in securing priority over other

creditors9, the courts have granted conservatory measures despite the fact that an

enforceable title already existed. In general, the existence of an enforceable

instrument is in Greece, quite similarly to Germany, a strong reason for not granting a

provisional remedy.

2.3.2-2.3.3 The granting of provisional remedies in the Greek procedural system is

subject to two conditions. The first condition lies in their reference to a specific

substantial right or -in the case of regulatory provisional remedies- to a legal

relationship, from which rights and obligations may accrue, even in the future. The

second prerequisite, according to Art. 682 CCP, is the existence of an urgent

situation, that has to be temporarily settled or the avoidance of an imminent

danger10. The distinction between an urgent situation and the avoidance of an

imminent danger is not always logically attainable or necessary, but it seems that the

Greek courts tend to base the regulatory provisional remedies on the first one, while

the second one is being used as a legal prerequisite for granting conservatory

measures. Hence, the avoidance of an imminent danger covers in Greece situations

referred in the questionnaire as “imminent frustration of enforcement of a judgement

on the merits”. These situations are being currently dealt in Greece with conservatory

measures, while the general precondition of an urgent situation is attributed to the

regulatory provisional remedies.

The so called “imminent competition from other creditors” and the struggle

for securing priority on the property cannot justify per se the granting of a provisional

remedy. The two general prerequisites as already described above should always be

met. In any case the only way to achieve an equivalent priority effect in Greece is

through the pre-notice of a mortgage (Art. 706 CCP), which maintains its temporary

priority rank over other later registered mortgages, provided that a final award on the

secured claim has been rendered and that the pre-notice has been converted to a 8 Compare decision No. 1506/1989 of the Court of Appeal of Thessaloniki, published in the legal journal Armenopoulos, 1989, p. 837. 9 Subject to the final award of the claim. 10 S. Yessiou- Faltsi, op. cit (Fn. 1), p. 246.

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regular mortgage within 90 days following the final award (Art. 1323 nr. 3 of the

Greek Civil Code)11.

2.4-2.4.1.3 The Greek Code of Civil Procedure provides for three types of civil courts

of original jurisdiction: justices of the peace; single-member district courts; and three-

member district courts adjudicating at first instance.

The general subject-matter competence for granting provisional remedies,

whether conservatory or regulatory, falls within the competence of the single-member

district courts (Art. 683 I CCP).

Justices of the peace have a subject-matter competence for granting

provisional remedies in cases where disputes concerning the possession or detention

of things should be provisionally settled (Art. 733 CCP) or if the main dispute falls (or

would fall) under their (ordinary or extraordinary) subject-matter competence (Art.

683 II CCP)12.

The three-member district courts and the courts of Appeal have concurrent13

subject-matter competence, but only if the main case (dispute) is pending before them

(Art. 684 CCP). In this case, if the applicant chooses to bring the application for the

provisional remedy before the three-member district courts or the courts of Appeal,

the application may only be discussed at the hearing ordered for the main claim or

dispute (Art. 686 V b CCP)14. The subject-matter competence of the multi-member

11 S. Yessiou- Faltsi, op. cit (Fn. 1), p. 380. An order of payment (Mahnbescheid) can in Greece lead independently to the registration of a pre-notice of mortgage or to the conservatory attachment of the defendant’s property. In this case no provisional order granting these conservatory measures is needed (Art. 724 CCP). The final order of payment (e.g. after it had been served twice to the defendant and remained unopposed, Art. 633 II CCP) has the same effect as a final award on the merits and the time limit of 90 days for the conversion of the pre-notice to mortgage applies here too, compare decision No. 6/1996 of the Full Bench of Areios Pagos (the Greek Supreme Court), published in the legal journal Elliniki Dikaiosyni, 1996, p. 1047. 12 The subject-matter competence of the Justices of the peace excludes the general competence of the single-member district court, s. K. D. Kerameus / D. G. Kondylis / N. Th. Nikas / Kranis, Code of Civil Procedure: Article by Article Commentary (in Greek), Art. 683 Nr. 5. It does not exclude, however, the special competence of the court (single-member or three member district court) of the pending main proceedings, compare decisions No. 681/1981 of the one-member district court of Volos, published in the legal journal Elliniki Dikaiosyni, 1981, p. 553 and No. 168/1983 of the three-member district court of Chalkida, published in the legal journal Armenopoulos, 1983, p. 887. 13 Concurrent with the subject-matter competence of the single-member courts or the Justices of the peace. 14 This is also the difference, to which Footnote 15 of the questionnaire refers. If the main proceeding is pending before a multi-member court, the application for a provisional remedy may only be discussed at the hearing ordered for the main claim. Additionally, if a provisional remedy is ordered prior to the commencement of the main proceedings, its modification or revocation because of a change of circumstances (Art. 696 III CCP) falls until the first hearing of the main dispute within the competence of the court, which ordered it. After this point (e.g. the first hearing on the main dispute) the competence for the modification or revocation of a provisional remedy is transferred to the court of the main dispute.

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courts is activated under the strict condition that the requested provisional measure

tends to secure a substantive right, which corresponds exactly to the object of the

litigation in the pending proceedings15.

The territorial competence for the granting of provisional remedies depends

primarily on the already existing or future territorial competence of the court for the

main dispute according to the general stipulations of the CCP.

Apart from this general rule, Art. 683 III CCP creates a particular concurrent

forum executionis: territorial competent is also the (subject-matter competent) court

located closest to the place, where the provisional remedies should be enforced. The

applicant for a provisional remedy has the following choice: he may apply to the court

indicated by the general provisions of the CCP16 (Arts. 22-44) regulating the

territorial competence for the main dispute or to the court closest to the place of the

enforcement of the provisional remedies.

2.4.1.4 In Greece provisional remedies are granted through genuine judicial decisions.

The application would be in any case judged by the competent court and not by the

registrar or any other enforcement authority. The court would be constituted

according to the description supra by one justice of the peace or a judge, or by three

judges.

2.4.2 There is no special provision in the CCP on the type of evidence to be produced

by the applicant for a provisional remedy. Art. 690 I CCP stipulates that the applicant

should produce all available means of proof (documents, witnesses etc.) at the main,

and also singular, oral hearing for the application. At this hearing the court may order

specific additional evidence (e.g. expertise or physical examination of an object) or

fix a time limit for the submission of additional evidence, without issuing a decision.

Means of evidence not fulfilling the general prerequisites of CCP may be submitted

by the parties, admitted by the court and above all freely evaluated17. Art. 691 I CCP

introduces a mild version of the inquisitorial system in the procedure for provisional

remedies: the judge may act on his own initiative (ex officio) and collect all the

necessary material for his decision but, as it has been accepted by the courts and the

15 When exactly this is the case, is a completely different and complex question. 16 This cannot be though an arbitral Tribunal (Art. 685 CCP). Law 2735/1999, applying the UNCITRAL Model in Greece, provides for the competence of the arbitral Tribunal to grant provisional remedies (Art. 17 of the Law) only in cases of international commercial arbitration and in the absence of any contrary agreement of the parties. 17 S. decision No. 1675/1995 of Areios Pagos, published in the legal journal Elliniki Dikaiosyni, 1998, p. 362.

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prevailing opinion in the legal theory, only within the factual and evidentiary

framework, that the parties already had defined18.

2.4.3.1 Ex parte proceedings are allowed, but only if the extreme urgency of the

circumstances justify them (Art. 687 I CCP). Courts in Greece are very reluctant to

use their discretionary power to grant a provisional remedy without hearing the

defendant, especially in light of their power to issue a provisional order, securing the

applicant up to the hearing of his application (691 II CCP). The usual course of the

Greek procedure is the summoning of the adversary at the main oral, and sole, hearing

of the application. The summoning of the adversary is compulsory in disputes on the

provisional settlement of possession or detention of property. Adversary proceedings

make the vast bulk of and the rule in Greek summary proceedings for provisional

remedies.

2.4.3.2 The proceeding is, as a rule, oral19 and is carried out20 without the

participation of a secretary21. The Judge may allow the tape-recording of the

proceedings.

2.4.3.3 The practice of the German “Schutzschrift”, which has been quite originally

invented by the German law practice in order to grant to the future defendant the

chance of expressing his views about the urgency or other pre-conditions of the

application, is not known to the Greek procedural system: the defendant is, as a rule,

summoned to the hearing of the application and the parties are usually granted the

right to submit to the court their written comments on the hearing within few days

after its completion.

2.4.4.1-2.4.4.3 The general standard of proof required in the proceedings under

examination is that the allegations in relation to the substantive right to be secured or

the urgency should be shown as probable22.

18 K. D. Kerameus / D. G. Kondylis / N. Th. Nikas / Kranis, Code of Civil Procedure: Article by Article Commentary (in Greek), Art. 691, Nr. 1 and Yessiou- Faltsi, op. cit (Fn. 1), p. 57 and 249. Compare also decision No. 6961/1990 of the three-member district court of Athens, published in the legal journal Armenopoulos, 1991, p. 63. 19 Apart from cases of complexity or importance, where the keeping of minutes of the hearing is deemed as necessary. The same applies also to the disputes involving possession or detention of property (Art. 734 V CCP). 20 Before the justices of the peace or the judge of the single-member district court (Art. 690 II CCP). 21 Such participation is compulsory in disputes involving possession or detention of property (Art. 734 V CCP). 22 The substantive differentiations from the general rules of the CCP in respect of the admissibility and evaluation of the means of evidence have been shown supra 2.4.2.

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2.4.4.4 Issues concerning the admissibility of the application and the procedural limits

of the requested provisional protection will be decided on the basis of the lex fori. On

the other hand, the existence of a substantive right to be secured or provisionally

settled should be examined according to the lex causae indicated by the Greek

conflict of laws rules. Because of the urgent character of the proceedings and the

nature of the disputes to be settled, there will be little space left for a thorough

qualification of the legal relationships and the complete applicability of the principles

of private international law. The courts have to rely mainly on their lax persuasion

that according to the foreign lex causae the main claim has a substantial likelihood to

succeed on the merits or to resort to the domestic substantial law.

2.5.1 There is neither strict legislative determination of the content of the provisional

measure nor any practice directions, indicating the concrete form of the order, at the

example of the English Rules of Civil Procedure. Provisional remedies are granted

through judicial decisions, which have to bear the obligatory content of any judicial

decision. Especially for the provisional remedies, Art. 691 III CCP stipulates that the

decision must determine the specific provisional remedy ordered and the substantive

right or situation to be secured or settled.

2.5.2 The question is rather vaguely formulated. Under the current regulation of the

Greek summary proceedings, applications for provisional remedies cannot be

electronically processed. They have to be judged individually by the competent court.

However the court enjoys a wide discretionary power to select the proper measure for

each case, without being limited by the requests of the parties (Art. 692 I CCP).

Having said that, a limitation does exist in respect of the nature of the requested

provisional protection: the court cannot order a provisional remedy, which

corresponds to a different kind of provisional protection23, e.g. to order instead of a

conservatory measure (for example conservatory attachment) a regulatory one

(provisional adjudication of a claim or provisional settlement of a situation).

Hence, the application indicates the kind of the provisional protection sought

and binds the court to select a provisional measure within the boundaries of the

specific category of provisional remedies (whether conservatory or regulatory).

23 Attention should be drawn to the basic distinction under the Greek procedural perspective between conservatory and regulatory provisional remedies, s. supra 1.4. Compare also decision No. 654/1991 of the one-member district court of Chalkida, published in the legal journal Elliniki Dikaiosyni, 1992, p. 1629 and decision No. 14726/1993 of the one-member district court of Athens published in Elliniki Dikaiosyni, 1994, p. 1395.

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Within these expressed boundaries the court may choose to order an even more

drastic (and therefore more painful for the defendant) provisional measure: instead of

the requested pre-notice of mortgage, the conservatory attachment or instead of a

requested provisional adjudication of € 300 monthly, the interim payment of € 400

monthly. On the other hand, the court has to choose the milder (the less oppressive)

provisional remedy between equivalent ones (Art. 692 III CCP).

The aforementioned regulation of the summary proceedings imports into the

Greek procedural system a basic exception from the principle of free disposition of

the parties (Art. 106 CCP). Yet, this exception does not extend to the point, that the

parties are deprived of any power of free disposition in respect of the provisional

proceedings: the applicant may withdraw his application or even resign from his right

to provisional protection; the adversary may admit the application, thus obliging the

court by this fact24.

This exception comes along with the modifications in respect of the

conversational system and the mild appliance of the inquisitorial system25 and forms a

rather flexible procedural framework for the provisional remedies, which pays

particular attention to the urgent character of the provisional protection sought.

Summarizing now the results of the examination: 1) The court has a wide

discretionary power to order any conservatory measure from those expressly named in

the CCP (i.e. judicial security, pre-notice of mortgage, conservatory attachment,

judicial custody26 and sealing, inventory, or public deposit of property), provided that

the applicant has indicated in his application, that he seeks this specific kind of

provisional protection27. The conservatory measures are restrictively enumerated in

the CCP and the court is not allowed to create any new conservatory measures. 2) The

court may create with great freedom any regulatory provisional remedy pursuant to

Arts. 692 I and 732 CCP28, provided that the applicant has indicated this direction in

24 The court is not bound though as to the specific provisional measure it may order. 25 Already described supra under 2.4.2 26 Especially in respect to the provisional measure of judicial custody it should be reminded, that this remedy tends to the securement of a non-monetary claim (s. also supra 2.2). Therefore the court cannot select to order a different conservatory measure instead of the requested judicial custody. 27 And that he has shown as probable, that he has a substantive right, which should be provisionally protected because of an imminent danger (concerning usually the frustration of the future enforcement), Art. 688 I CCP, supra 2.4.4.1, 2.3.2-2.3.3. 28 See supra under 1.1, 1.4, 2.2.

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his application. To the latter category belongs also the provisional adjudication of a

claim (interim payment)29.

2.5.3-2.5.3.3 The content of the conservatory measures depends mainly on the

specific kind of the measure ordered by the court. As already shown, the Greek

procedural system recognizes a conservatory, securing character -in respect to

monetary claims30- not only to the conservatory attachment, but also to the

provisional measures of the judicial security, the pre-notice of mortgage and the

sealing, inventory and public deposit of property.

On the other hand, the German system regards the conservatory attachment

(Arrest) as the principal instrument for securing the future enforcement of a monetary

claim. German conservatory attachment (Arrest) leads to the attachment

(Arrestpfändung) of the debtor’s movables or to the registration of a securing

(conservatory) mortgage (Sicherungshypothek) on the debtor’s immovables. Further,

this attachment (Arrestpfändung) is furnished with the same effects as a regular

attachment based on a “regular” enforceable instrument, according to the German

enforcement proceedings: the attachment imposes on the debtor a suspension of his

power of disposal (confiscation, seizure, Beschlagnahme durch Verstrickung) and

creates a special form of a lien on the confiscated objects

(Arrestpfändungspfandrecht), which maintains its temporary priority rank (and its

priority over later obtained liens of other creditors), in case of the final adjudication of

the secured claim. Summarizing, the German conservatory attachment leads either to

a lien on the debtor’s movables (Arrestpfändungspfandrecht) or to a mortgage with

securing function (Sicherungshypothek) on the debtor’s immovables. Under both

forms the temporary priority of these real security rights is maintained at the stage of

the distribution of the proceeds of the future auction of the seized items, provided that

the secured claim is finally adjudicated31.

The Greek approach and answer to these questions is not uniform and depends on

the specific kind of the provisional measure ordered, as follows:

29 In this case the court is allowed to order the provisional adjudication of a claim, only after an expressed request for this from part of the applicant. Because of the exceptional, unique and oppressive character of this provisional remedy the court does not enjoy any discretional power so as to order this without an explicit request by the applicant or to order a conservatory measure instead of the provisional adjudication. 30 And in the case of judicial custody to non-monetary claims. 31 Or that the applicant obtains an enforceable instrument on the secured claim.

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a) the judicial security functions as a burden on the debtor and aims at the public

deposit either of a fixed amount of money, or of commercial papers or of a

bank guarantee, which are to be used for the future satisfaction of the

successful claim. A judgment ordering the judicial security is not regarded as

an enforceable instrument. If the debtor does not comply to the obligation

imposed by the judgment, the court may order additional (and as a rule more

oppressive) conservative measures, substituting the non deposited security.

The applicant obtains a real right of pledge (lien) on the deposited money or

commercial papers (Art. 166 CCP). The satisfaction of the secured claim,

upon obtaining a special judicial order (Art. 168 CCP), follows the general

rules for the temporal priority and the accruing privilege of the real right of

pledge32.

b) The pre-notice of mortgage (Art. 706 CCP) creates a priority right for

establishing a mortgage on the debtor’s immovables. The judgment ordering

the pre-notice of mortgage should specify the exact amount of the claim

secured (Art 706 II CCP). It has to be inscribed in the Mortgage Registry with

the remark that this is only a pre-notice. The pre-notice should be converted to

a genuine mortgage –upon penalty of extinction- within 90 days from the final

adjudication of the secured claim (Art. 1323 (2) Civil Code). In this case, the

privilege of the mortgage at the distribution of the proceeds of the eventual

auction33 of the realty is deemed to be retroactively effectuated and runs back

to the time, when the pre-notice had been inscribed into the Registry. The

debtor’s power of disposal is not subject to limitations, but his successors

obtain the real estate with the incumbrance of the pre-notice and the

subsequent risk, that this could be in the future converted to a genuine

mortgage. The Greek regulation of the pre-notice of mortgage resembles the

equivalent institution in the German Civil Procedure in respect of the

32 Yessiou- Faltsi, op. cit (Fn. 1), p. 376-377. 33 The creditor should announce to the notary his claim secured through pre-notice of mortgage (Art. 972 CCP) in order to be “casually” ranked (Art. 978 CCP). A “casual” classification, in this case, is a classification (e.g. a provision distributing the proceeds of the auction among the creditors) under the condition of the final adjudication of the secured claim and the subsequent conversion of the pre-notice to a genuine mortgage.

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Sicherungshypothek. Hence, the Greek pre-notice of mortgage operates in

rem34.

c) The conservatory attachment is the most common (and effective) conservatory

measure in the Greek practice, not taking into account the pre-notices of

mortgage issued after a consent of the debtor. The judgment ordering the

conservatory attachment should define the exact amount of the claim secured

(Art. 708 CCP) and may affect the whole property35 of the debtor, in toto, or

particularly specified items. This specification is compulsory, if the

attachment is to be enforced on a ship or aircraft (Art. 709 CCP). The

conservatory attachment imposes on the debtor (and the third party debtor) a

factual and legal suspension of his power of disposal on the seized items. This

suspension operates in favor of the creditor, who imposed the attachment. Acts

of disposition from the debtor are, according to the Greek perception,

relatively invalid. If a pre-notice of a mortgage or a mortgage are inscribed

into the Mortgage Registry after (and in spite of) the attachment36, these

cannot be validly opposed against the creditor, who imposed the conservatory

attachment. A good faith acquisition of the property (or of a pledge) on the

seized item cannot be successfully asserted against the creditor of the

provisionally secured claim.

On the other hand, the conservative attachment does not create any lien or

privilege as to the future satisfaction of the underlying claim. If it comes to the

distribution of the proceeds from the auction of the attached item37, the

creditor enjoys no privilege deriving from the conservatory attachment, in

respect to other creditors: if he has no real right (pledge or mortgage) on the

34 Practically important is the stipulation of Art 724 CCP: the creditor, who obtains an order of payment (Mahnbescheid), may proceed to the registration of a pre-notice of mortgage, without applying for the specific conservatory measure and relying solely on the basis of the order. It should also be noted, that the vast majority of the Greek pre-notices of mortgages are issued with the participation of the consenting debtor. This practice followed, as a rule, by the banks and other credit institutes in order to secure loans granted by them, results in a prompt issuance of the requested pre-notice of mortgage, without any substantial examination of the case from part of the court. 35 The conservatory attachment, unlike the pre-notice of a mortgage, may extend to the whole property of the debtor: movables, real estates, real rights, claims against third persons, ships or aircrafts and special assets, like patents or copyrights. Compare decision No. 10417/1978 of the Court of Appeal of Athens, published in the legal journal Nomiko Vima, 1979, p. 1501. 36 Thus violating Art. 715 I CCP and Arts. 175, 176 Civil Code in combination with Art. 1259 of the Civil Code. 37 By way of the regular enforcement proceedings initiated by the same or any other creditor. The regular enforcement proceedings are not affected by the prior conservatory attachment (Art. 721-722 CCP).

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item or if his claim is not a privileged one according to Art. 975, 1007 CCP,

he will take part in the proportional distribution of the proceeds along with the

other non-secured creditors. The result can be easily predicted: at the end of

the day he remains with empty hands.

d) The judicial custody is a conservatory measure tending to secure the future

enforcement of non-monetary (individual) claims. If ordered38, the judicial

custody functions in a similar way as the conservative attachment: the debtor

is deprived of his factual and legal power of free disposal of the items under

judicial custody (Art. 727 referring to Art. 715 CCP). No lien or privilege is

created in favor of the successful applicant.

e) The sealing, inventory or public deposit of property are only marginally

encountered as conservatory measures in the Greek procedural practice. They

are less effective39 than the conservatory attachment or the judicial custody

and are, as a rule, ordered in cases of imminent danger of destruction or

concealment of the respective items, until an eventual attachment or judicial

custody is ordered.

2.5.3.4-2.5.3.4.3 As already shown, the creditor gets a lien (and the deriving special

privilege) on the items, only in case that a judicial security or a pre-notice of mortgage

is ordered. The lien includes only the deposited money, commercial papers, etc. or the

seized immovable. If such is the case, the priority principle (principle of temporal

priority) applies in full extent and also in relation to other competing creditors. This

lien survives the posterior insolvency of the debtor and maintains its privileged

character in these proceedings: the creditor may proceed to the final adjudication of

his claim40, by way of exception from the moratorium of individual exercise of

claims, which accompanies the insolvency pursuant to the respective Greek

provisions of law.

2.5.5-2.5.6 The Greek procedural conception of the proceedings under examination

emphasizes the nature of the Greek provisional remedies as acts of judicial legal

protection of rights. Hence, the provisional measure is drafted as a genuine judicial

38 The judgement ordering the judicial custody should specify the items upon which such a conservative measure is imposed (Art. 726 I CCP). 39 The reason for this is that they do not suspend the debtor’s legal power of free disposal, but only his physical or factual power over the items. 40 And the conversion of the conservatory pre-notice to a genuine mortgage, s. also decision of the Greek Supreme Court (Areios Pagos), No. 521/2002, published in the legal Journal, Dikaio Epichiriseon kai Etairion, 2002, p. 1257.

14

decision (Art. 691 I CCP) and should include the reasoning and the motives of the

judgment.

There has been a wide discussion (and controversy) in the Greek legal theory,

whether the provisional order granted pursuant to Art. 691 II CCP is a judicial

decision or an administrative act. The provisional order aims at the maintenance of the

status quo until the decision on the application for a provisional (conservatory or

regulatory) remedy and is quite frequent in courts practice41.

2.5.7 The general principle of the Greek regulation is that no appeal42 is permitted

against decisions granting or rejecting an application for a provisional remedy43 (Art.

699 CCP). This rule knows a sole exception, which is explicitly stipulated by the

CCP: an appeal is allowed in disputes concerning possession or detention of

property44 (Art. 734 III CCP), as long as the judgment under attack is issued by the

justice of the peace (see supra 2.4-2.4.1.3 and Fn. 12).

Apart from the already mentioned exception, the Greek system contains only one

method of attacking a judgment granting45 a provisional remedy: the application

(motion) for revocation or modification of a provisional measure46. This remedy

may operate in four distinct directions:

a) by aligning and connecting the maintenance of the provisional remedy to the

outcome of the main proceeding for the secured claim or the protected

substantive right. Art. 698 I CCP pays particular attention to the teleological

connection of the provisional measure to the main proceedings: the court that 41 The question is not only of theoretical interest. It also involves practical aspects, which cannot be examined within this report. Compare decisions No. 561/1999 and 1599/1992 of Areios Pagos published respectively in the legal journals Elliniki Dikaiosyni, 2000, p. 63 and Dike, 1993, p. 1116. 42 The appeal is conceived in Greece as a tactical (ordentlich) method of attacking the first instance judgments, which aims to the re-adjudication of the case, within the scope of the first instance trial through its re-examination on appeal. The Full Bench of the Greek Supreme Court (Areios Pagos) accepted in its decision 13/1999, published in the legal journal Dike, 1999, p. 651, the possibility of the Prosecutor of Areios Pagos to attack the judgment ordering a provisional remedy through a cassation for the interest of law (Art. 557 CCP). 43 Or an application for revocation or modification of an ordered provisional remedy, s. infra Fn. 45. 44 The appeal is also permitted in cases where final judicial protection is granted through the application of the proceedings for provisional remedies (s. decision No. 754/1986 of the Full Bench of Areios Pagos, published in Dike, 1986, p. 664). These are cases, where the law, in order to accelerate the granting of the requested judicial protection, provides for the application of the procedure for provisional remedies. Needless to note, that these cases, having nothing in common with the genuine provisional measures, lie beyond the scope of the questionnaire. 45 Or modifying or revoking a judgment granting a provisional remedy. This remark applies to the whole presentation of this specific remedy. On the contrary, a judgment rejecting an application for a provisional remedy (or for its modification or revocation) cannot be attacked, modified or revoked. The applicant can only renew his application based on new facts or on the change of circumstances. 46 The application for revocation or modification of a provisional remedy is not considered technically as a tactical method of attack on the judgment ordering the provisional remedy.

15

ordered the provisional remedy or the court of the main proceeding47 has to

revoke the provisional measure partly or fully in the following cases: if a final

judgment in the main proceedings against the applicant ripens into res

judicata; if a judgment positive for the applicant in the main case has been

enforced, even provisionally; if a conciliation between the parties has been

agreed; if 30 days after the termination of the main proceeding through an

alternative method have passed (Art. 698 I CCP). The revocation in the

aforementioned cases has a mandatory character for the court48.

b) By opening for the defendant49, who was not50 or not properly summoned and

has not participated in the proceedings, the procedural chance of attacking the

judgment and of being heard from the court, provided that he has legal interest

in the revocation or modification of the provisional remedy. The competence

for deciding on such an application for revocation or modification lies

exclusively51 to the court that ordered the provisional measure. This

application can be founded on grounds referring to questions of fact, to legal

questions of substantive or procedural law or procedural mistakes. It does not

need to invoke any change of circumstances between the time, when the

provisional measure had been ordered and the time of the application against

it52.

c) By operating as an appeal and attacking the judgement ordering a provisional

remedy before the court of the main proceeding. The Greek conception of the

proceedings for reviewing a judgment ordering a provisional remedy is based

on the principle, that because of the nature of the procedure, no appeal should

be permitted. The legal theory and the court practice in Greece were

traditionally reluctant to accept such a wide exclusion of methods of appeal

and have supported an interpretation of Art. 697 CCP, that allows the court of

47 If the main proceedings are pending before a court, then this court enjoys the exclusive subject-matter competence to proceed with the examination of an application for (partial or full) revocation based on the grounds described in the text (Art. 698 II CCP). 48 The partial or full revocation of a provisional measure pursuant to Art. 698 I CCP is the only subdivision of this specific remedy, where a mandatory revocation of the ordered measure is stipulated. 49 Or for a third person affected by the binding effects of the judgment ordering a provisional remedy. 50 Because the provisional measure was granted -exceptionally-ex parte (Art. 687 I CCP). 51 And not to the court, where the main proceedings for the secured claim or for the provisionally protected substantive right are pending (controversial, compare decision No. 19180/1986 of the one-member district court of Athens, published in Dike, 1987, p. 228). 52 Compare decision No. 20348/1996 of the one-member district court of Athens, published in Dike, 1996, p. 1209.

16

the pending main proceedings to review the legal or factual foundations of the

judgment granting53 a provisional remedy. In this case the court of the main

proceedings may revoke or modify the judgment54, provided that it is

hierarchically superior or equal55 to the court that ordered the judgment. A

change of circumstances need not to be alleged, asserted or be shown as

probable by any party. In this case the application for revocation or

modification in respect of a judgment ordering a provisional remedy functions

as a full substitute for the non-permitted regular appeal56.

d) By connecting the binding effects of the judgment ordering a provisional

remedy with the maintenance of circumstances, which existed at the time

when the provisional remedy had been ordered. The term “change of

circumstances” (Art. 696 III CCP) has been widely interpreted by the courts

and applies also to facts or means of proof, which although already existing at

the time of the first application could not be brought to the attention of the

(first) court because of a justified reason or an excusable failure57. The

subject- matter competence for such an application is regulated as follows: as

long as the main proceedings are not pending, the court that ordered the

provisional remedy is competent; for the time after the pendency of the main

proceedings and up to the first hearing of the main case a concurrent

competence for the court that ordered the provisional remedy and the court of

the main proceedings58 exists; after the first hearing of the main case, only the

court of the main proceedings is competent. If a change of circumstances is

shown as probable, then the court of the main proceedings may freely modify

53 Or modifying or revoking a judgment, ordering a provisional remedy. Compare decisions No. 1973/1985 and No. 929/1995 of the Athens Court of Appeal, published in Elliniki Diakiosyni, 1985, p. 929 and 1997, p. 875 respectively. 54 This may occur after an application for revocation or modification from any party of the summary proceedings, which is also party to the main proceedings for the secured claim or the substantive right. 55 If this is the case, the application for modification or revocation of a judgment, substituting a regular appeal, should be examined only at the hearing of the main case or after this hearing had took place (decision No. 315/1996 of the three member district court of Athens, published in Dike, 1987, p. 359). 56 The motion for revocation or modification operates in a similar mode, if a judgment of the extraordinary subject-matter (and territorial) competent court at the place of the enforcement is attacked on grounds concerning the validity of the enforcement of an ordered provisional remedy (Art. 702 II CCP). 57 Compare decision No. 933/1998 of the one-member district court of Athens, published in Dike, 1999, p. 105. 58 Therefore the applicant, who participated in the proceedings for the provisional remedy (if not then see supra 2.5.7 under b) may select between these two courts.

17

or revoke the judgment granting the provisional remedy, even if this was

ordered by an hierarchically superior court59.

It is important to note that in all four cases the eventual modification or revocation of

the judgment ordering a provisional remedy does not retroact and operates ex nunc,

so that any transactions, that took place in the meantime, do not loose their validity60.

On the other hand, prohibited61 acts of disposition become valid because their relative

invalidity cannot be successfully asserted any longer by the defeated after a

revocation of the judgment applicant.

It should also be noted that the application for revocation or modification of a

judgment is not equipped with the suspensive effect of the ordinary methods of

appeal62. Hence the enforceability of the judgment under attack is not suspended and a

stay of execution may only be ordered, exceptionally, through a provisional order

granted by the court hearing the application for modification or revocation (in analogy

to Art. 691 II CCP). If the provisional measure has been already enforced63 and a

judgment ordering its modification or revocation is rendered, then the enforcement

acts loose ex nunc their validity and cannot be maintained any longer. Disputes

concerning the (non-)maintenance of the enforcement acts (e.g. the elimination of the

registration of the pre-notice of mortgage or of the conservatory attachment from the

respective Registries) will be resolved within the enforcement proceedings through

the judicial remedy of opposition64 (Art. 702 CCP) or the application for restitution

upon revocation or modification65 (in analogy to Art. 914 CCP).

2.5.8 Generally, the provisional measures are not subject to a specific time limitation.

The situation is rather different as far as conservatory attachment, judicial custody and

(non-conservatory) provisional adjudication of a claim are concerned: within 30 days

from the service of the judgment ordering the conservatory attachment or the judicial

custody (Arts. 715 V and 727 CCP), or within 30 days from the day of the public

59 The limitation described supra 2.5.7 under c does not apply here. 60 See decision No. 497/1978 of the Full Bench of Areios Pagos, published in Nomiko Vima, 1978, p. 668. It remains a different question, if there is a right for compensation in this case (Art. 703 CCP). 61 Because of the content and the binding effect of the provisional remedy. 62 Even if it operates as an equivalent of the ordinary appeal, s. in the text 2.5.7 under c. 63 See infra 2.7. 64 See infra 2.7.4.3. 65 Indeed, the situation described in the text shows a striking resemblance to the restitution upon reversal on appeal of the provisionally enforced judgment (s. also § 717 II ZPO). The restitution to the former situation (before the enforcement of the provisional remedy) should not overthrow the non-retroactive character of the modification or revocation. This is the reason why the Greek legal theory characterises the situation as a quasi restitution.

18

announcement of the judgment provisionally adjudicating a claim (Art. 729 V CCP),

the successful applicant should file his (main) claim66. If the main claim is not filed

within the specified time limit, the provisional remedy ordered ceases to exist ex nunc

and ipso iure: the judgment cannot be used anymore as an enforceable instrument and

the imposed prohibition in respect to the debtor’s power of free disposition of the

seized (or under judicial custody) items is lifted for the future67.

Further, it belongs to the discretionary power of the court to specify a limit

(not shorter than 30 days) for the applicant to file his main claim (Art. 693 I CCP).

This procedural burden may be imposed to the applicant for any provisional remedy

and the effects of the non-compliance are the same as above: the provisional remedy

ceases to bind the parties ipso iure and ex nunc. The same applies if the judgment

granted the provisional remedy upon the condition of the deposition of security from

part of the applicant within a specified time limit (Art. 694 I CCP) and this time limit

passes.

Time is a crucial factor in the proceedings for a provisional remedy. In all

these cases the legal theory speaks of disarmament (Entkräftung) in respect of the

judgment ordering the provisional remedy.

Equity thoughts prevailing in several legal systems (including Greece) allow

the applicant to renew his application without submitting any new facts to the court68.

The court will examine whether the general prerequisites for any provisional remedy

are fulfilled at the time of the second application, especially the existence of an urgent

situation or the need for avoidance of an imminent danger.

Additionally, this latter remark may play an important role in a different

context: the suggestion that the provisional remedies under the Greek perspective are

not subject to a time limitation per se does not mean that they are entitled to an eternal

legal life: if the successful applicant does not move to enforce the provisional remedy

ordered within a reasonable time69, the debtor may bring an application for revocation

of the provisional remedy (Art. 696 III CCP) or may oppose (Art. 702 CCP) the

66 If conservatory attachment is based on an order of payment according to Art. 724 I CCP, the creditor does not need to file the main claim within this time limit. 67 It is controversially discussed, whether this “lifting” of the attachment and the prohibition of free disposition take place also ipso iure or whether the debtor has to attack the seizure through the judicial remedy of opposition according to the provisions of the enforcement proceedings (Art. 702 CCP). See also Fn. 65 and the text thereof. 68 S. decision No. 148/1972 of the three-member district court of Thebes, published in Armenopoulos, 1972, p. 947. 69 Not specifically defined by the Greek CCP as in § 929 ZPO.

19

delayed enforcement of the respective provisional remedy, asserting that no urgent

situation exists anymore or that the delayed enforcement of the provisional measure

constitutes an abuse of right.

2.6-2.6.1 Whether the applicant/creditor will have to deposit a security lies at the

discretionary power of the court examining his application or an application for

revocation or modification of an ordered provisional remedy70. The court may order

the deposition of a security71 ex officio or after a request from a party (Art. 694 CCP

I) and specify a time limit for the public payment or deposit of this security. If the

security has not been paid or deposited within this time limit, the provisional remedy

is lifted ipso iure and may not operate as an enforceable instrument.

As a rule, Greek courts do not exercise their discretionary power and do not

make the enforcement of a provisional remedy dependent on the deposition of a

security. This practice bears severe risks for the defendant/debtor, in cases when the

provisional remedy is finally removed and the latter desires to pursue eventual

damages suffered from the enforcement of the provisional remedy.

2.7-2.7.2 The Greek execution system does not consider the court to be an organ of

execution72. The principal (and stricto sensu) enforcement agencies according to the

Greek perspective are the bailiff and the notary as the only authorized organ to

conduct public auction of the items under levy. The involvement of the Greek courts

in enforcement proceedings corresponds to a rather controlling and regulating

function: the judge or the President of the court, which rendered the judgment issues a

copy of the judgment containing the writ of execution (executory formula, Art. 918

CCP)73; they enjoy competence to decide on the judicial remedy of opposition in

respect to irregularities or nullities of the enforcement (controlling function); they

regulate certain aspects of the course of the enforcement proceedings, i.e. the stay of

the execution or by resolving disputes concerning the custody of the seized items.

70 If the provisional adjudication of a claim is ordered, no security from the part of the creditor may be requested (Art. 729 IV CCP). 71 This may consist in a sum of money or commercial papers, which are to be publicly deposited (Art. 163-164 CCP). 72 This remark has, however, only relative importance in the comparative context, see K. D. Kerameus in the International Encyclopedia of Comparative Law, Vol. XVI, Civil Procedure, Chapter 10, Enforcement Proceedings, Sec. 10-14. 73 This enforceable copy including also the formal invitation to voluntary satisfaction of the claim or the right has to be served on the debtor. The service of the so construed enforceable copy marks the beginning of the enforcement proceedings according to Art. 924 CCP.

20

The execution of the provisional remedies is subject (Art. 700 I CCP) to the

general regulation of enforcement. The need for an accelerated protection through the

provisional remedies suggests and causes certain (minor) modifications to the general

provisions of enforcement

It should be also noted that in respect to certain conservatory measures the use

of the term “enforcement” should be conceived in a broad and mainly technical sense:

the judgment ordering the judicial security cannot be enforced74 and may not operate

as an enforceable instrument; the recordation of a pre-notice of mortgage requires the

assistance of the land recording officers, but the latter are not considered to be organs

of the enforcement by the Greek law of execution. Apart from these cases and as far

as the remaining three conservatory measures75 are concerned (conservatory

attachment, judicial custody and sealing, inventory or public deposit of property), the

functional competent organ to enforce these provisional remedies is the bailiff.

2.7.3 With regard to conservatory measures, which because of their nature are not

dependent on the cooperation of the debtor for their implementation (i.e. pre-notice of

mortgage), no further sanctions are possible. Strictly speaking, it seems that there is

no space available in these cases for the non-compliance of the debtor.

2.7.4-2.7.4.1 In order to accelerate the enforcement proceedings for provisional

remedies Art. 700 II CCP provides for an exception from the general rule of the Greek

system of execution, that the court issues an enforceable copy of the judgment

including the writ of execution, which has to be served on the debtor76 so that the

enforcement may commence: as long as the enforcement of a provisional remedy is

sought, the court does not have to issue writ of execution and the debtor does not need

to be served with a formal invitation to comply with the content of the provisional

remedy77. In these cases the enforceable instrument is a copy or an extract from the

judgment ordering the conservatory measure.

The Greek CCP regulates quite thoroughly (Art. 710-719 CCP) the

enforcement of the principal type of conservatory measures, e.g. conservatory

attachment. The proceedings differ with regard to the object of the conservatory

74 See supra 2.5.3-2.5.3.3 under a. 75 The enforcement of the regulatory provisional remedies will be examined separately in the respective chapter. 76 With the formal invitation to satisfy the claim voluntarily. 77 By way of exception thereof, Art. 700 II b CCP introduces the obligation of service to the debtor with this formal invitation, if the enforcement of a regulatory provisional remedy or of a judgement provisionally adjudicating a claim is sought.

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attachment, following as a rule the procedural conception of “regular” enforcement

and introducing certain modifications because of the need of promptness:

a) For the conservatory seizure of movables or real rights on movables no copy

of the judgement ordering the attachment has to be served on the debtor.

However, the debtor has to be served with a copy or a summary of the bailiff’s

report on the attachment. The same copy or a summary thereof should be

delivered to the justice of the peace at the locus arresti, who has to keep a

special register with the names of those, against whom an attachment had been

ordered. The effects of the attachment start only after the debtor has been

served with the relevant copy of the attachment report (Art. 715 II a CCP) 78.

b) For the conservatory attachment (garnishment) of a claim or a movable

possessed by a third person, the third party/debtor has to be served with a copy

of the judgment including a formal invitation not to pay back or deliver the

seized items back to the debtor. From this point onward the third party/debtor

is bound by the attachment (Art. 715 II b CCP), provided that the principal

debtor has been notified within the following 8 days in respect of the

conservatory attachment (garnishment).

c) For the conservatory attachment of a ship or an aircraft, a copy of the

judgment ordering the attachment has to be served to the debtor (or the third

person possessing the ship or aircraft) and to the authority79 competent for

keeping the respective Greek Registry. A report on the attachment has neither

to be issued by the bailiff nor to be served on any party. The effects of the

attachment start for the debtor (or the third possessor) from the time of the

service of the judgment (Art. 715 II c CCP), while for third persons from the

time of the registration to the respective Registry, meaning that after this point

78 See supra 2.5.3-2.5.3.3 under c. This also applies to third persons that cannot acquire validly seized items from the debtor, even if the conservatory attachment had not been registered into the respective registry kept by the justice of the peace (controversial). 79 Within 8 days starting from the service to the debtor and as far as ships or aircrafts registered in the Greek Registry are concerned. Hence the Greek law and practice permits the conservatory attachment of a ship or an aircraft, which is not present within the sovereign territory. Such an attachment without the physical presence of the ship or aircraft will create only a legal suspension of the debtor’s power of free disposition and will not affect the factual possibility that the ship or the aircraft may travel (decision No. 2531/1981 of the one-member district court of Athens, published in Nomiko Vima, 1981, p. 424). On the other hand, ships and aircrafts registered in foreign Registries but present in Greece may be levied with the opposite effect: they will be physically seized (and not allowed to disembark or depart) but their legal status will be determined by the law of their flag (decision No. 308/1980 of the one-member district court of Corinth, published in Nomiko Vima, 1981, p. 373).

22

they cannot acquire validly a right on the seized items (because of the

publicity of the Registries, Art. 715 III CCP).

d) For the conservatory attachment of an immovable or a real right on an

immovable, a copy of the judgment has to be served on the debtor and on the

authority responsible for the registry of attachments (land registry). The

effects of the attachment for third persons commence from the time of the

recordation of the judgment in the respective registries (Art. 715 III CCP).

The implementation of judicial custody follows, as a rule, the procedure

applicable to conservatory attachment (Art. 727 CCP), with the modification that no

copy of the judgment has to be served on the debtor (or any registering authority).

Applying the described procedure, if a notification to the debtor or the registering

authority is required80, then a copy of the bailiff’s report on the judicial custody has to

be served to the respective recipients.

2.7.4.2 The enforceability of a judgment granting a provisional remedy upon

condition of security81 from part of the applicant is suspended, until such security has

been paid or deposited (Art. 701 CCP). The certificates proving the public payment or

the deposition should be presented by the applicant, before any enforcement of the

provisional measure can be carried out.

2.7.4.3 The questionnaire does not raise the question whether the European legal

systems provide for any method of reviewing or controlling the enforcement

proceedings for a provisional remedy. The Greek system prescribes the judicial

review of the procedure for provisional remedies by making a distinction between two

stages: the granting of the provisional remedy82 and the enforcement of the granted

remedy.

Art. 702 I CCP provides for the competence of the court that ordered83 the

provisional remedy to decide on disputes concerning the enforcement of the

provisional measure. In extremely urgent cases the one-member district court or (if

not existing) the justice of the peace at the place of the enforcement is also competent.

The judicial remedy for attacking the validity of the enforceable instrument (e.g.

80 The teleological interpretation of the provisions regulating conservatory attachment and judicial custody requires that such notification (and registration of the copy of the report) has to be served on the registering authority, so that the judicial custody and its effects (supra 2.5.3-2.5.3.3 under d) may be opposed to third persons. 81 See supra 2.6-2.6.1 82 Which can be attacked by the application for modification or revocation, s. supra 2.5.7. 83 Or revoked or modified.

23

because the provisional measure has been revoked) or the validity of any act of

enforcement (e.g. because of procedural failures or omissions) is the opposition.

2.7.5 The effects of the provisional measure are not dependent on a specific time

limitation. Unlike § 929 ZPO, the CCP does not provide for such an exclusive

temporal limit for the enforcement of a provisional measure. However, the temporal

aspect and the urgent character of the provisional judicial protection have not been

neglected by the Greek procedural system84.

2.8-2.8.1 These questions have been already dealt with supra 2.5.8. The Greek

perspective is that when the law or the court85 provide for an initiation of the main

proceedings within a specific time limit, then it is up to the successful applicant to file

his main claim. The issuing court does not have the power to initiate the proceedings

ex officio. This would be in direct contradiction to the principle of free disposition of

the parties, which runs through the Greek system of civil jurisdiction.

Some legal authorities suggest that the debtor may initiate the proceedings, by

filing e.g. a negative declaratory claim (negative Feststellungsklage) but this practise

is extremely rare and ambiguous. The initiation of the main proceedings is deemed to

be a procedural burden on the applicant: he may file his main claim for the secured

right or the settled legal relationship before a Greek court or a foreign one, provided

that the foreign lis pendens will be acknowledged and recognized by the Greek legal

order86.

2.8.2 The answer is affirmative, see supra 2.5.7 under c and d.

2.8.3 The return or release of the seized items depends on the revocation or the

modification or the ipso iure lifting87 of the provisional measures or on procedural

irregularities within the enforcement proceedings. Being a dispute concerning the

enforcement of a provisional measure88, it has to be resolved by the court that ordered,

revoked or modified a judgment granting a provisional measure. In many cases,

especially after the filing of the main claim, this would be the court of the main

proceedings.

84 See supra 2.5.8. 85 Exercising its discretionary power according to Art. 693 I CCP. 86 Decision No. 1990/1971 of the one-member district court of Piraeus, published in Dike 1972, p. 231. 87 See supra 2.5.8. 88 See supra 2.7.4.3.

24

2.8.4 It should be once more reminded that the ipso iure revocation, modification or

the removal of a provisional remedy do not retroact89. Hence an eventual90

compensation or restitution91 in respect of damages caused by the enforcement of a

provisional remedy cannot lead to (retroactive) effects92 that are not permitted and do

not comply with the structural perception of the Greek procedure on provisional

remedies.

The main provision for the compensation of damages inflicted by the

enforcement of the judgment is Art. 703 CCP. It provides for a sui generis liability of

the applicant who carried out the enforcement of the provisional remedy, provided

that the main claim93 has been finally rejected on the merits94 and the judgment ripens

into res judicata. Additionally, the applicant should have been aware of the non-

existence of his substantive right or his unawareness of the non-existence should have

been caused by gross negligence. The compensation will be, as a rule, of pecuniary

form but a restitution in natura is not excluded, provided that it does not retroact.

A compensation is also possible pursuant to Art. 940 III CCP, which can be

analogically applied to the enforcement of a provisional remedy: if the enforcement is

irrevocably nullified95 and the general conditions (Arts. 914, 919 Greek Civil Code,

requiring as a minimum negligence) for the tort liability of the applicant, the debtor is

entitled to compensation for the damages accruing from the enforcement of the

provisional remedy.

2.9 Provisional enforceability and protective (provisional) measures operate as

different instruments of an effective judicial protection: the existence of an

enforceable instrument (also of a provisional one) impedes, as a rule, the granting of a

provisional remedy96. However, the judgment ordering the provisional enforcement of

the claim cannot operate as an enforceable instrument for the provisional seizure (or

89 See supra 2.5.7. 90 And the Greek law does provide for such compensation or restitution, as it will be shown further in the text. 91 See also supra 2.5.7 at the end and Fn. 65. 92 Exception: the final (res judicata) rejection (on the merits) of a claim that has been provisionally adjudicated (Art. 730 II CCP) because of the merely pecuniary character of this provisional remedy. The debtor is entitled to get back the sum of money that he has already paid on the basis of the provisional adjudication under no further conditions. 93 And not if the judgment ordering the provisional measure is finally revoked or modified or removed ipso iure. The applicant’s liability depends on the final adjudication over the non-existence of the provisionally secured or settled main substantial right. 94 And not because of its eventual inadmissibility (Unzulässigkeit). 95 After a successful opposition (s. supra 2.7.4.3) against the enforcement of the measure. 96 Because of lack of legal interest, see supra 2.3.1.3-2.3.1.4.

25

judicial custody) of assets97. In this sense the provisional measures unfold as a safety

procedural pre-stage in relation to provisional enforceability: the conservatory

attachment can be converted to a regular one, if the claimant obtains a provisionally

enforceable judgment. Question 2.9.2 cannot be clearly answered towards the one or

the other direction: the “remedies” do aim at different targets but they also have a

complementary character.

3. Temporary injunction (measures maintaining the status quo pending

determination of the issues at trial)

A preliminary remark: the provisions of the CCP regulating provisional remedies

include a general part applying to every provisional remedy (Arts. 682-703 CCP) and

specific stipulations for each provisional measure (Arts. 704-738 CCP). This structure

is also suggested by the questionnaire98 and reflected in our report. As far as chapters

3 and 4 of the questionnaire are concerned, a general reference to the answers of

chapter 2 applies and any particularities or modifications will be reported according to

the respective subdivision.

3.1 The CCP does not provide for a specific kind of temporary injunctions.

Traditionally these are considered to be regulatory provisional remedies99, which can

be formed by the court with great flexibility by adjustment of their content to the

special needs of the situation to be settled. The term “provisional settlement or

regulation of a situation” used as a subtitle to the respective chapter of the CCP (Arts.

731-736) rather describes a general category of provisional remedies than creates a

specifically named provisional remedy. Within this category certain legal areas, where

such remedies may be granted, are explicitly named and to a certain extent regulated:

disputes involving the possession or detention of property (Arts. 733-734 CCP);

family relations (Art. 735 CCP), including parental care; suspension of the

97 Compare decision No. 4816/1987 of the one-member district court of Thessaloniki, published in Armenopoulos, 1989, p. 475. On the contrary, the order of payment may operate as a title for the conservatory attachment or the recordation of a pre-notice of a mortgage (Art. 724 I CCP). 98 Introduction under 2. 99 See supra 1.4.

26

enforcement (stay of execution) in respect of a general assembly’s decision of a union

or association (Art. 736 CCP). But there are numerous other areas as well.

Through the provisional settlement of a situation the court may order a

specific act, abstention from or the toleration (Duldung) of a specific act. The

examples100 from the court practice cover an extremely wide and varied spectrum of

cases, corresponding to the German Unterlassungsverfügung, Regelungsverfügung

and Befriedigungsverfügung with non-pecuniary character101.

The important issue of the prohibition of full satisfaction with regard to the

right to be secured or settled arises traditionally within the scope of the provisional

settlement of a situation102. This principle is stipulated in Art. 692 IV CCP and forms

the backbone of the distinction drawn between the final and the provisional protection

of disputed rights or relationships. It reflects the accessory and complementary

function of the provisional remedies in relation to the main proceedings. Having said

this, we should bear in mind that a partial satisfaction of the underlying substantive

right will be in many cases unavoidable, so that an efficient judicial protection is

granted. But the provisional remedy should not create irreversible situations or

damages that could be hardly compensated, if the main claim is rejected. By

conforming to this principle the Greek courts have rejected applications for

provisional measures, which sought the granting of an order to an act or to omit an

act, which consists the unique object of the disputed right or relationship (e.g. the

delivery of the contested object); or granting of a merely declaratory provisional

measure; or exercising the judicial modification of a legal relationship

(Gestaltungsklagerechte); or ordering the seizure of insulting printed matter.

3.2.1 With regard to the “situation” which is to be settled through a provisional

remedy, the Greek courts and the legal theory suggest that this does not need to be a

specific substantive right stricto sensu. It is sufficient that the “situation” is connected

100 It seems meaningless to start counting the completely different cases where a “temporary injunction” may be ordered. The term “injunction” does not seem appropriate for the Greek legal order, since it gives emphasis to the prohibitive character of these provisional remedies. For the better comprehension it may be useful to note that the Greek system provides only for a unique general category of regulatory provisional remedies, which is destined to operate as an equivalent to the German provisional remedies referred to in the text. 101 If the application requests (and subsequently the judgment orders) the interim payment of a sum of money, it will be handled and decided by the Greek court as an application for the provisional adjudication of a claim, see infra 4. 102 Compare decision No. 10691/1998 of the one-member district court of Athens, published in Nomiko Vima, 1999, p. 434.

27

to a legal relationship103, even in a broad sense, and may produce rights and

obligations in the future104.

3.3 Special reference should be made to the quasi105 exclusive subject-matter

competence of the justices of the peace for disputes involving the possession or

detention of thing106.

3.5.1 The content of the provisional measure may be freely formed by the court, as

long as it does not lead to the (full) satisfaction of the underlying substantive right and

it does not create an irreparable harm to the debtor, s. supra 3.1.

3.5.3.2-3.5.3.3 Because of the nature of the provisional (regulatory) measures they

principally operate in personam against the debtor. But if he is ordered not to dispose

of an item, the eventual subsequent disposition would suffer from relative invalidity

(Art. 176 Greek Civil Code), which could be also opposed against the third party,

even if he had not been aware of the prohibition107.

3.5.6 Within the scope of this category of provisional remedies falls the only explicit

exception from the principle that no (ordinary) appeal is allowed against judgments

ordering (or rejecting) applications for provisional measures. Judgments issued by the

justice of the peace and involving the possession or detention of property may be

attacked with an ordinary appeal, which transfers the case to the three-member district

court.

3.6.2 There are no differences in respect to the sureties to be deposited from part of

the applicant.

3.7.2 The general law of enforcement is applicable pursuant to the provisions of Art.

700 I CCP. With regard to the enforcement of regulatory provisional remedies, it

should be noted that the respective judgments are to be enforced according to the

regulation on the non-monetary enforcement, which often provides for specific

sanctions on the non-compliant debtor. The Greek system follows mainly the German

conception of non-monetary enforcement: it distinguishes between positive 103 On the contrary, it will not be sufficient if the situation is related only to a mere complex of facts, compare decisions No. 16888/1996 and No. 15045/1989 of the one-member district court of Athens, published respectively in Epitheorisi Emporikou Dikaiou, 1998, p. 49 and Dike, 1990, p. 229. 104 Pelayia Yessiou – Faltsi, Civil Procedure in Hellas, p. 245-246. 105 This competence is exclusive as long as the proceedings for the main claim (which has to refer to the detention or possession of property) are not yet pending. 106 S. supra 2.4-2.4.1.3 and Fn. 12. 107 Compare decision No. 27/1979 of the three-member district court of Athens, published in Dike, 1979, p. 444. Attention should be also paid to the principle of publicity of the public Registries. In respect to immovables, ships or aircrafts any prohibition of disposal should be additionally registered into the respective Registry, so that it operates against the third party.

28

performance, capable of substitution by a third person or not and abstention or

toleration. In case of positive performance not capable of substitution (unvertetbare

Handlung), abstention or toleration the court compels the debtor to undertake the act

or to comply with his obligation consisting in abstention or toleration by coercive

fines108 up to € 5.900 for each breach of his obligation and coercive detention for up

to one year in total. The whole procedure is based on the distinction between two

stages: the first one includes the threatening (announcing) of the coercive measures

for each breach and may be ordered ex post by the one-member district court, if the

judgment to be enforced does not contain such a provision. The second one is the

actual condemnation of the debtor to the coercive fine or detention, to be ordered only

by the one-member district court after it had established a breach of (or the non-

compliance with) the obligation109. This is the general scheme applying to this

subdivision of the ordinary enforcement proceedings.

As far as the enforcement of a provisional remedy is concerned, the applicant

has to request in his application that the judgment threatens a coercive fine or the

coercive detention for each breach. In order to be enforced, the judgment has to

contain specific provisions ordering the debtor to act, refrain from an act or tolerate an

act (enforceable content) and threaten a fixed coercive fine or a fixed coercive

detention110. The judgment including the formal invitation to voluntary compliance

has to be served to the debtor (Art. 700 II CCP). The latter consists a general pre-

requisite for the enforcement of any regulatory provisional remedy111. An eventual

non-compliance of the defendant to the judgment ordering a specific act, not capable

of substitution by a third person, or the abstention or toleration of any act may also

have genuine criminal consequences and lead to his prosecution and condemnation

according to Art. 232A of the Greek Penal Code.

108 Payable to the creditor/applicant. 109 To this purpose the claimant has to raise (before the one-member district court) a separate claim for the condemnation of the defendant to these quasi criminal penalties. An eventual condemnation presupposes the debtor’s culpability. 110 If the judgment does not threaten such coercive measures (although furnished with an enforceable content) the coercive measures may be ordered exclusively by the one-member district court. There is also support from the legal theory and the court practice to the opposite opinion that these coercive measures should be in any case threatened by the judgment ordering the provisional remedy and that this threat cannot be substituted by the one-member district court. Compare the opposite decisions No. 685/1975 and 1465/1988 of Areios Pagos, published respectively in Nomiko Vima, 1976, p. 67 and 1989, p. 1215. 111 As to the enforcement of such provisional remedies the above said in Fn. 109 applies fully.

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4. Provisional measures allowing the satisfaction of the claim (interim

payment/interim performance)

4.1-4.2 The Greek procedural system provides for a sole provisional remedy leading

to the (partial or full) satisfaction of a pecuniary claim. It is the provisional

adjudication of a claim (Art. 728 CCP), which is considered by the Greek legal theory

as a subdivision of the regulatory measures or as a sui generis provisional remedy112.

The interim (specific) performance is covered by the regulatory measures already

described supra under 3.1 and is not explicitly regulated in the CCP.

The CCP provides for specific categories of pecuniary claims, which upon the

existence of the general pre-requisites may be provisionally adjudicated. This

provisional remedy refers mainly to claims concerning: the contribution to family

needs and alimony or maintenance due because of a law, a contract or a testament

provision; pensions owed from a private social security organization; salaries and

compensations from a labor relationship; tort liabilities and medical expenses in case

of loss or diminishment of the injured person’s ability to work; compensation owed to

a person because of the wrongful and culpable killing of a person owing to him ex

lege maintenance.

4.3.2 The urgency in this case is principally related to the financial inabilities or

shortcomings of the creditor, which justify the provisional adjudication of his claim.

4.6.1 The provisional adjudication cannot exceed the ½ of the main claim except for

cases involving maintenance (or contribution to the family needs), medical expenses,

compensation owed because of the loss of the person obliged at law to pay

maintenance and salaries due (Art. 729 II CCP).

4.6.8 Because of the exclusive and exceptional nature of this provisional remedy the

CCP stipulates certain time limitations: the successful applicant has to file his main

claim within 30 days from the announcement of the judgment ordering the provisional

adjudication of the claim (Art. 729 V CCP, see supra 2.5.8). If the creditor fails to

comply with this procedural burden, the provisional adjudication ceases to exist ex

nunc113 and ipso iure. On the other hand, the provisional adjudication of a claim

remains valid only until the court issues its final decision on the merits of the main

112 See supra 1.4. 113 This virtually means that any sum of money paid on the basis of the provisional adjudication cannot be requested by the debtor as yet. This may occur only after the main claim had been rejected on the merits and has ripened into res judicata (Art. 730 II CCP). This is also the only case, where a retroactive effect of the lifting of a provisional remedy is acknowledged by the legal theory.

30

claim (Art. 730 I CCP). If the main claim is rejected on the merits or even if an

affirmative decision does not provide for its provisional enforceability, the provisional

adjudication may not operate anymore (but only ex nunc) as an enforceable

instrument114.

4.7.1 The provisional adjudication of the claim can never be ordered upon condition

of security from the part of the creditor (Art. 728 IV CCP)115.

4.9.4 Apart from the general stipulations (supra 2.8.4) compare also the retroactive

effect created by the rejection (constituting res judicata) of the main claim on the

merits supra Fn. 113 and the text thereof.

5. Practical information

5.1 Unfortunately no statistical data are available.

114 Compare decision No. 584/1970 of the one-member district court of Athens, published in Dike, 1970, p. 285. 115 This provision of the CCP concerning interim payments through provisional remedies is not compatible (at least prima facie) with the interpretation favoured by the ECJ in its judgments Van Uden and Mietz. However, it should be reminded that the Greek law does not provide for the provisional adjudication of a claim accruing from a commercial contract. It is rather doubtful, if the nature of the claims allowed to be provisionally adjudicated (or satisfied) under the Greek perspective is compatible with any kind of security.

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6. Provisional measures and European civil procedural law

6.1 The international jurisdiction of the Greek courts for granting provisional

remedies is regulated by the domestic law (mainly the CCP), Regulation 44/01/EG

and multilateral or bilateral or international conventions. The questionnaire focuses

principally on the international jurisdiction based on Regulation 44/01/EG. A

principal methodological distinction should be drawn between international

jurisdiction founded on domestic law provisions and the one emanating from the

Regulation 44/01/EG.

As far as the domestic law provisions are concerned, international

jurisdiction116 for granting provisional remedies in cases with foreign elements

depends on (and follows) the territorial competence of the Greek courts: if a law

provision vests a Greek court with territorial competence on the disputed case, the

court enjoys also international jurisdiction (Art. 3 CCP).

In the field of Greek provisional remedies, irrespective of their specific

kind117, the international jurisdiction accruing from domestic law provisions follows

the regulation of the territorial competence118: international competence rests with the

court that would be (or is) territorially competent for the main proceedings and the

court at the place of enforcement of the ordered provisional measure (Art. 686 III

CCP). The latter provision can be deemed as a gate for the international jurisdiction of

the Greek courts where the preliminary (provisional) seizure of assets located in

Greece is requested or where the provisional settlement of a situation through specific

acts, abstention or toleration is sought within the Greek territory.

The international jurisdiction emanating from Regulation 44/01/EG is

interpreted by the Greek courts in light of the ECJ rulings. The court of the main

proceedings according to Art. 2 and Arts. 5-24 of the Regulation enjoys in any case

international jurisdiction to grant provisional remedies. The elementary and old

dispute as to the nature of Art. 31 of the Regulation, i.e. whether it creates an

autonomous broad forum for the granting of provisional remedies or whether it

relegates to the domestic national provisions for the granting of provisional remedies,

provided that a court of a Contracting State is competent for the main case according

to the Regulation. Greek courts tend to favor the second interpretation and in this 116 Provided that the main case falls under the jurisdiction of civil courts. 117 So that the classification proposed in the questionnaire under 6.1.1.1-6.1.1.3 has no practical impact on the international jurisdiction of the Greek courts, which is based on domestic law provisions. 118 See supra 2.4-2.4.1.3.

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context the provision of Art. 686 III CCP (territorial competence of the court at the

place of the future enforcement of a provisional remedy) becomes rather important. It

should be also noted that the territorial competence (and according to the

aforementioned the international jurisdiction) of the Greek court at the place of the

future enforcement of the provisional measure operates in compliance with the

direction drawn by the ECJ in the Van Uden decision: the enforcement of the

provisional remedy at a certain place creates a real connecting link between the

subject-matter of the measures sought and the territorial jurisdiction of the

Contracting State of the court before which those measures are sought (points 39-40

of the Van Uden decision).

6.2-6.2.3 Decisions supporting foreign main proceedings by ordering provisional

measures are extremely scarce in the Greek court practice. In any case, if the foreign

lis pendens will lead to a judgment capable of recognition according to the domestic

rules or Regulation 44/01/EG or any bilateral or multilateral international convention,

the Greek courts will assist the foreign proceedings through provisional measures. A

representative judgment was the one rendered by the one-member district court of

Thessaloniki No. 6617/1998119. In this case the main claim against the principal

debtor and the guarantors for the payment of a sum of money due because of a

commercial contract was pending before a German court. The claimant requested

from the Greek court at the place of the future enforcement (Art. 24 of the Brussels

Convention in combination with Art. 686 III CCP) the recordation of a pre-notice of

mortgage on a real estate of one guarantor. The remedy was granted.

6.2.4 Ex parte proceedings for the granting of any provisional remedy are very

unusual in the Greek court practice120. In cases involving foreign elements this will be

(for good reasons) the rare exception. On the other hand, a provisional order (Art. 691

II CCP) maintaining the status quo until the hearing fixed for the application for any

provisional measure may be ex parte issued, but it will only produce territorially

limited effects.

6.2.5 The Greek regulation does not provide for a procedural weapon equivalent to

the worldwide Mareva injunction (freezing order after the Rules of Civil Procedure).

Unlike freezing orders, the Greek conservatory attachment (and the German Arrest)

119 Published in the legal journal Armenopoulos 1999, p. 1458-1459. 120 See also supra 2.4.3.1.

33

are not furnished with sanctions equivalent to contempt of court121, which may be

imposed on the non-compliant debtor or third parties aware of the freezing order. In

order to be enforced in foreign countries, an eventual comprehensive Greek

conservatory attachment will have to be recognized abroad. As far as Regulation

44/01/EG is concerned, this will not be without difficulties, especially if the

international jurisdiction of the Greek courts for granting a conservatory attachment is

based solely on Art. 31 of the Regulation: following the line of interpretation of the

ECJ in the Van Uden decision, it would be doubtful if a real connecting link exists

between the territorial competence of a Greek court based on the forum arresti

(executionis) of Art. 686 III CCP and a future attachment upon assets located in

foreign territory.

6.3 The CCP does not provide for any specific rules in relation to provisional

measures with extraterritorial effects122. This may be in part explained by the

traditional reluctancy123 of the Greek courts to grant provisional remedies, which have

to be enforced outside the Greek territory. The Greek procedural system has

confronted the perspective of an “exportation” of a Greek provisional remedy with

scepticism. Only after the Brussels Convention had come into force, in 1989, a

growing support for similar extraterritorial effects of Greek provisional remedies may

be observed in the legal theory124. The latest developments in this area do not focus so

much on the international jurisdiction of the Greek courts125, but rather on the

existence of real chances of enforcement of the provisional remedy abroad and the

121 This is the sanction following the non-compliance with a freezing order. The advantage of the world wide freezing order is that the debtor or the third knowing party find themselves in contempt of court in England, even if the violation of the English freezing order has taken place abroad. 122 Nor does it contain a provision similar to the revised (compare decision Firma Mund of the ECJ) § 917 II ZPO, which creates a legal presumption in respect of the Arrestgrund, if the judgment on the merits is to be enforced abroad. 123 Compare decisions Nr. 24071/ 1994 and No. 4879/1997 of the one-member district court of Athens, published in the journal Epitheorisi Emporikou Dikaiou (Review of Commercial Law) 1995, p. 706-708 and 1998, p. 346-348 respectively. 124 One of the rare decisions involving similar issues is the one rendered by the one-member district court of Athens No. 18185/1992, published in the legal journal Armenopoulos 1995, p. 60. Two Swiss companies, the one as creditor of two claims and the other through its intervention (Hauptintervention) as assignee of the second claim, requested the court to order a comprehensive conservatory attachment on the property located in Greece and abroad of a Greek company. The court based its international jurisdiction for granting a conservatory attachment on property located abroad on the Brussels convention. The application was rejected on other grounds. The decision raises a wide variety of issues, which cannot be examined within this report. 125 Which may be deemed as granted, if the Greek courts enjoy international jurisdiction over the main dispute according to the Art. 2-24 of the Regulation, compare Van Uden.

34

maintenance of the pre-requisite of urgency. These two factors are considered by the

legal theory as pre-conditions of provisional remedies with extraterritorial effects126.

In the absence of specific provisions points 6.3.2 –6.3.4 of the questionnaire

cannot be answered. The impact of the crucial Van Uden and Mietz cases cannot be

yet assessed, since the issues raised therein have not been dealt with bis dato by the

Greek courts.

6.4 The Greek procedural system provides for a wide and flexible variety of

provisional remedies. This may be of advantage if the effects of a foreign provisional

remedy are to be recognized and enforced in the Greek legal order. Additionally there

exists, as a rule, a positive attitude of the Greek courts towards the recognition and

enforcement of foreign judgments. As far as the legal theory is concerned, the

interpretation of the Brussels Convention and now Regulation 44/01/EG follows the

respective line drawn by the ECJ and the European legal authorities. Foreign

provisional remedies are to be recognized and enforced in Greece, as long as the pre-

requisites set by the ECJ (especially through the Denilauler, Reichert II, Van Uden,

Mietz decisions) are fulfilled.

In this context attention should be drawn to the new decision of the ECJ of

06/06/2002, Italian Leather: a foreign decision on interim measures ordering an

obligor not to carry out certain acts is irreconcilable with a decision on interim

measures refusing to grant such an order in a dispute between the same parties in the

state where recognition is sought. The issue is not raised by the questionnaire but it is

absolutely relevant, as far as the recognition of a foreign provisional remedy is

sought. The ECJ seems to extend the scope of Art. 34 No.3 of the Regulation 44/01 in

the area of provisional remedies. The impact from this decision is still to be expected.

The Greek courts have not handled yet the issue of recognition of a foreign

provisional remedy. The lack of empirical data hinders the answer to the questions

6.4.1.1-6.4.3.

126 On the other hand these “pre-conditions of extraterritoriality” do not seem compatible with the latest decisions of the ECJ, especially if a Greek court enjoys international jurisdiction for the main claim according to the general provisions of the Regulation (Art. 2-24, but not Art. 31 of the Regulation).

35

7. Policy recommendation

7.1.1 The standardization of the form will be hardly compatible with the particular

features and needs in the majority of the cases concerning provisional remedies.

Considerable may be the introduction of a standard form in relation with the

conservatory attachment, which enjoys considerable acceptance and similar

background in many legal orders of Romanic, Germanic or civil law influence. Even

in this case the discrepancies between the national procedural systems will impede the

electronic (e.g. automatic) procession of the respective applications for a conservatory

attachment.

7.2.1 An eventual recognition of ex parte provisional remedies will considerably

increase the effectiveness of such provisional remedies. On the other hand, this

practice bears severe risks for the debtor, who may be confronted with an oppressive

measure without having been heard. In any case, after the recent development in this

field through the Van Uden and Mietz decisions of the ECJ, the most attractive fora

for ex parte proceedings according to Art. 31 of the Regulation (i.e. the creditor’s

domicile) cannot lead to an extraterritorially enforceable provisional remedy, since

they would hardly show a real connecting link to the foreign enforcement of the

measure. So, even if the Denilauler decision127 is rethought or revised, the situation

would not change drastically without departing also from the Van Uden and Mietz

line of interpretation. There are many good reasons not to allow the free movement of

ex parte provisional measures in Europe relating mainly to the firmness of the

judgment ordering the provisional remedy and its eventually irreversible effects and

the right of the defendant to be heard.

7.2.2.1 If an affirmative answer to the previous question is adopted, it should be

reminded that any thorough examination of the cause of action within the proceedings

for provisional remedies would deprive them of their principal feature: promptness.

That is the reason why the English courts show a characteristic reluctancy to examine

the merits of the case and used the criterium of the balance of hardship for their pre-

trial injunctions. The provisional remedies should not become a stage of pre-

adjudicating the underlying claim, if they are to maintain their ancillary to the main

proceedings character. Otherwise the provisional remedy would indeed become final,

as it already happens in many cases.

127 But this does not seem probable, compare point 49 of the Mietz decision.

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7.2.2.2 If a provisional remedy is granted ex parte and the applicant aims at its

exportation and recognition abroad128, the deposition of a security from his part

should be deemed as necessary and appropriate.

7.2.2.3 Any competence of the court of the Exequaturstate should be handled

restrictively and may not lead to an impermissible re-adjudication of the application.

The court that ordered (ex parte) the provisional remedy seems to be the proper venue

for any objections by the debtor, as it has a better overview of the case material and its

urgency.

7.2.2.4 The creditor’s liability for the enforcement of any ex parte provisional remedy

should not depend on his culpability. A strict (objective) liability for the damages

inflicted to the debtor by the enforcement of a revoked provisional remedy granted ex

parte should be sustained.

7.2.3 The Commission’s Proposal for a European Enforcement Order appears more

flexible and modern in comparison to the centralized system adopted by Regulation

1348/00/EG, even in the form of its Arts. 14 and 15. The latter provide for a wide

discretion of the states as to the acceptance or the regulation of methods of service

substituting the centralized system. It appears that the modalities of service as

regulated by the Commission’s proposal may enhance a prompt service of the

judgment ordering a provisional remedy, contributing in this way to a system of fair,

effective and adequate judicial protection through provisional remedies.

7.2.4 Any oral explanation by the bailiff or similar agencies of enforcement should

not be considered as adequate or even reliable. The due information of the debtor

according to Arts. 16-18 of the Commission’s proposal puts him in a position to

arrange for his defense, knowing the requirements for his participation in the court

proceedings and the consequences of his non-compliance with those requirements.

The procedural direction followed in the Proposal should be positively acknowledged.

7.3-7.3.1 An eventual “European freezing injunction” would be an extremely

powerful procedural weapon in the hands of any creditor. Following the conceptual

foundations of the recent ECJ decisions, such an injunction should be ordered only by

the court of the pending main proceedings or a court that it would have international

jurisdiction over the main claim emanating from the general provisions of the

Regulation. Exorbitant fora arresti emanating from the appliance of Art. 31 of the 128 This cannot happen, as long as the interpretation followed by the ECJ in the Denilauler decision prevails.

37

Regulation should be excluded from granting such an extensive provisional remedy.

Only in extreme cases should such an injunction be ordered ex parte or without a

hearing on the application. In any case, it seems appropriate to request from the

applicant129 to file his main claim within a short time limit before a competent130 (not

just any) court. If he does not comply with this burden, the freezing injunction should

cease to bind the debtor or third parties. The deposition of a security from the creditor

should depend on the discretion of the court and the particularities of the case. It

would not be necessary that such an injunction creates a lien or similar priority rights

on the seized items.

The way towards harmonization of the proceedings for provisional remedies is

a long and twisty one. But behind the different structures and shapes of the

proceedings lie similar needs and objectives of the various legal orders: an expedient

and prompt judicial protection for the creditor while respecting the fundamental

procedural (and constitutional) rights of the debtor.

Konstantinos Trivoureas

Athen, 08.10.2003

129 Or allow the debtor to initiate the main proceedings. 130 According to the general provisions of the Regulation.