Limitation period of the enforcement of a UK judgment in Greece
Limitation period of the enforcement of a UK judgment in Greece
A judgment issued by the Division of Maritime Disputes of the Piraeus first instance court at the end of last year [nr. 3400/2024, unreported] was confronted with an issue which seldomly appears before Greek courts.
The issue raised before the Piraeus Court of First Instance, in the context of Regulation 44/01, was the following: Is it permissible to revoke the recognition of a foreign (English) judgment (order) that was declared enforceable in Greece, when allegedly it is no longer enforceable in the State of origin?
The court approached the case from three perspectives:
Firstly, it clarified that a decision of the Supreme Court issued five years ago [Areios Pagos nr. 767/2019], allowing the revocation of the enforceability of a foreign judgment under similar circumstances according to Greek law, cannot be considered as relevant precedent, because it concerned a US judgment, and not a decision of an EU Member State court of law.
It then examined and highlighted the relevant jurisprudence of the CJEU, which ratione materiae resembles to the dispute at issue, i.e., under the Brussels I regime. It stressed that revocation of enforceability under Reg. 44/01 is strictly allowed for specified grounds only, with the case at hand, i.e., loss of enforceability in the state of origin, not being such a ground. The party against whom enforcement is sought in the executing Member State, could raise such a ground, only in the context of enforcement proceedings in the executing state, the court clarified.
Finally, it went into a detailed analysis and reference to the defences against enforcement under English law, focusing on the provisions of the UK Civil Procedure Rules and the Limitation Act, and identifying relevant case law of the English courts. Relevantly, the Piraeus court rejected in substance the arguments raised by the applicants, noting that under English law the judgment of the English court at hand had not lost its enforceability in principle, but rather that special conditions must be met for enforcement in UK to be authorised (i.e., existence of property there, not previously found). Juxtaposing English and Greek law, the Piraeus court made the distinction of enforceability of judgments and the existence of additional modalities, procedures or preconditions that must be fulfilled for enforcement proceedings to take place.
This is one of the rare decisions published by Greek courts, which demonstrates the potential complexity of the subject matter under the Brussels I Regulation, which reappears sporadically, although it gave way to Regulation 1215/2012 some ten years ago.
The specificity of the case lies in the distinctive time of its occurrence: the ground of refusal did not occur at one of the exequatur stages [application to declare enforceability, appeal, second appeal], but much later, when the remedies under Brussels I before the courts of the state of execution have been unsuccessfully exhausted by the debtor.
The likelihood of similar situations occurring under the current regime of Regulation Brussels I bis is scarce. In this case, the judgment debtor is left with either the opposition (stay of execution) under Article 933 of the Greek Code of Civil Procedure, or the filing of a negative declaratory action, in case the enforcement procedure has not been initiated by the judgment creditor.
Finally, let us not forget that the United Kingdom has left the European Union, and, for the time being, there is no direct commencement of enforcement in Greek territory, such as the model of Regulation nr. 1215/2012, not even the previous system of exequatur under EU Regulation nr. 44/2001. A new corridor is expected to open later this year, given that the UK has ratified the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.
For further reading on the issue, see Requejo-Isidro(-Chiapponi), Brussels I bis, A Commentary on Regulation (EU) 1215/2012 (2022), Art. 41, nos. 41.22 et seq, Althammer, in: Simons/Hausmann, Brussels I Regulation – Kommentar zur VO (?G) 44/2001 und zum Übereinkommen von Lugano, Unalex Kommentar (2012), Art. 38, nos. 26 & 29); Geimer/Schütze, Europäisches Zivilverfahrensrecht (3rd ed., 2010), Art. 41, no. 44 et seq.
As I discuss in my article published last year in IPRax (Time limitations affecting foreign judgments, (2024) IPRax 1), the issue of foreign judgments getting time barred raises two distinct issues.
The first is which law is applicable to the determination of whether it is enforceable in the State of enforcement. Is that the law of the Country of origin? Is that the law of the substantive obligation enforced by the judgment? Is that the law governing the exequatur judgment? The French and Swiss supreme courts, for instance, have taken different stances on this.
The second issue is whether the judgment being unenforceable in the country of origin, it cannot be enforced for that sole reason in the enforcement forum. This is an issue which can either be considered as the same as the previous one, or as distinct, depending on how you answer the first one.
I am not quite clear what you are discussing in your post, Apostolos, but I think this is the second issue. If so, the title of your post is somewhat misleading.
Dear Gilles,
Thank you for your comments. Indeed, I am referring to the second issue. Your contribution gives me the chance to add more information related to the case.
The applicant submitted that the UK judgment, ordering him to pay the sums referred to a claim under a loan agreement, was declared enforceable in Greece by virtue of the judgment of this Court No 6037/2011, in accordance with the provisions of the Brussels I Regulation. The latter judgment was the subject of an appeal under the same Regulation, and was dismissed by decision No. 16/2014 of the Piraeus Single-Member Court of Appeal. The second appeal was also dismissed by decision No.1396/2015 of the Supreme Court.
The applicant stated that, based on the decision of the foreign (UK) court that was declared enforceable, the judgment creditors are attempting to enforce the UK judgment / order in Greece. He further asserts that the above judgment ceased to be effective, after it was declared enforceable in the domestic jurisdiction, due to the lapse of six years from the date of its issuance, i.e., as early as 18/7/2017, for reasons relating to UK law, making its enforcement dependent on the permission of the competent English court. On these grounds, he seeks the revocation of the aforementioned judgment.
The application to revoke the UK judgment’s declaration of enforceability on the grounds that it was not enforceable at the time when recognition was sought, may be raised exclusively by means of the remedies provided for in Articles 43 or 44 of the Brussels I Regulation, within the respective time limits, and under the respective conditions. It cannot, however, be raised by an application for the revocation of a judgment under Article 758 of the Greek Code of Civil Procedure, as it applies to judgments declared enforceable outside the scope of the Brussels I Regulation.
The impossibility to enforce due to specific reasons relating to the procedural law of the foreign country (UK), or even the subsequent revocation of enforceability of a foreign judgment after it has been declared enforceable under the Brussels I Regulation, does not constitute a ground falling under Articles 34 and 35 of Regulation 44/2001, where revocation of enforceability may be requested.
English law has relatively few restrictions on the enforcement of judgments. However, there is a restriction on enforcement proceedings in England: Under section 83.2 para 3 CPR, it is prohibited to issue an order or warrant of execution when six (6) years or more have elapsed from the date the judgment (or order) was issued, unless permission is sought and granted by the court having jurisdiction.
As a conclusion, the Greek court stated that Article 83.2 para 3 CPR does not concern the enforceability of judgments, but the conditions and the possibility of carrying out further enforcement proceedings within the English territory, after six years from the date of issuance. The expiry aforementioned does not entail the loss of the judgment’s enforceability, which was declared as such in Greece.
It is important to inform our readers that the issue was thoroughly discussed in the 99th meeting of the EJN-Civ Contact Points in Brussels. In the course of preparation of the Report on the application of the Brussels I bis Regulation, the Commission circulated a detailed discussion paper, including a chapter on the scope of lex executionis – Article 41 of the Brussels I bis Regulation. The question addressed to the Member State Delegations was the following:
Member States are encouraged to share how Article 44(1) of the Brussels Ia Regulation is applied by their courts and, in particular, to provide their views on whether their courts consider the limitation period of the enforcement to be a matter of the enforcement procedure. The answers will be included in the forthcoming conclusions prepared by the Commission.