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Implementation of the EAPO in Greece
By virtue of Article 42 Law 4509/2017, a new provision has been added to the Code of Civil Procedure, bearing the title of the EU Regulation. Article 738 A CCP features 6 paragraphs, which are (partially) fulfilling the duty of the Hellenic Republic under Article 50 EAPO. In brief the provision states the following:
- 1: The competent courts to issue a EAPO are the Justice of the Peace for those disputes falling under its subject matter jurisdiction, and the One Member 1st Instance Court for the remaining disputes. It is noteworthy that the provision does not refer to the court, but to its respective judge, which implies that no oral hearing is needed.
- 2: The application is dismissed, if
- it does not fulfil the requirements stipulated in the Regulation, or if
- the applicant does not state the information provided by Article 8 EAPO, or if
- (s)he does not proceed to the requested amendments or corrections of the application within the time limit set by the Judge.
Notice of dismissal may take place by an e-mail sent to the account of the lawyer who filed the application. E-signature and acknowledgment of receipt are pre-requisites for this form of service.
The applicant may lodge an appeal within 30 days following notification. The hearing follows the rule established under Article 11 EAPO. The competent courts are the ones established under the CCP.
- 3: The debtor enjoys the rights and remedies provided by Articles 33-38 EAPO. Without prejudice to the provisions of the EU Regulation, the special chapter on garnishment proceedings (Articles 712 & 982 et seq. CCP) is to be applied.
- 4: If the EAPO has been issued prior to the initiation of proceedings to the substance of the matter, the latter shall be initiated within 30 days following service to the third-party.
If the applicant failed to do so, the EAPO shall be revoked ipso iure, unless the applicant has served a payment order within the above term.
- 5: Upon finality of the judgment issued on the main proceedings or the payment order mentioned under § 4, the successful EAPO applicant acquires full rights to the claim.
- 6: The liability of the creditor is governed by Article 13 Paras 1 & 2 EAPO. Article 703 CCP (damages against the creditor caused by enforcement against the debtor) is applied analogously.
Some additional remarks related to the Explanatory Report would provide a better insight to the foreign reader.
- There is an explicit reference to the German and Austrian model.
- The placement of the provision (i.e. within the 5th Book of the CCP, on Interim Measures) clarifies the nature of the EAPO as an interim measure, despite its visible connotations to an order, which is regulated in the 4th chapter of the 4th Book, on Special Proceedings. Nevertheless, the explanatory report acknowledges resemblance of the EAPO to a payment order.
- There is no need to provide information on the authority competent to enforce the EAPO, given that the sole person entrusted with execution in Greece is the bailiff.
The initiative taken by the MoJ is more than welcome. However, a follow-up is imperative, given that Article 738 A CCP does not provide all necessary information listed under Article 50 EAPO.
Mutual Recognition and Enforcement of Civil and Commercial Judgments among China (PRC), Japan and South Korea
Written by Dr. Wenliang Zhang, Lecturer in the Law School of Renmin U, China (PRC)
Against the lasting global efforts to address the issue of recognition and enforcement of civil and commercial judgments (“REJ”), some scholars from Mainland China, Japan and South Korea echoed from a regional level, and convened for a seminar on “Recognition and Enforcement of Judgments between China, Japan and South Korea in the New Era”. The seminar was held in School of Law of Renmin University of China on December 19, 2017 and the participants were involved in discussing in depth the status quo and the ways out in relation to the enduring REJ dilemma between the three jurisdictions, especially that between China and Japan. Read more
The ECtHR rules on the compatibility with the right to respect for private and family life of the refusal of registration of same-sex marriages contracted abroad
By a judgment Orlandi and Others v. Italy delivered on December 14 the ECtHR held that the lack of legal recognition of same sex unions in Italy violated the right to respect of private and family life of couples married abroad.
The case concerned the complaint of six same sex-couples married abroad (in Canada, California and the Netherlands). Italian authorities refused to register their marriages on the basis that registration would be contrary to public policy. They also refused to recognize them under any other form of union. The complaints were lodged prior to 2016, at a time when Italy did not have a legislation on same-sex unions.
The couples claimed under articles 8 (right to respect of private and family life) and 14 (prohibition of discrimination) of the Convention, taken in conjunction with article 8 and 12 (right to marry), that the refusal to register their marriages contracted abroad, and the fact that they could not marry or receive any other legal recognition of their family union in Italy, deprived them of any legal protection or associated rights. They also alleged that “the situation was discriminatory and based solely on their sexual orientation” (§137).
Recalling that States are still free to restrict access to marriage to different sex-couples, the Court indicated that nonetheless, since the Oliari and others v. Italy case, States have an obligation to grant same-sex couples “a specific legal framework providing for the recognition and the protection of their same-sex unions” (§192).
The Court noted that the “the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship – be it a de facto union or a de jure union recognized under the law of a foreign state – recognized and protected in Italy under any form” (§201).
It pointed out that although legal recognition of same-sex unions had continued to develop rapidly in Europe and beyond, notably in American countries and Australia, the same could not be said about registration of same-sex marriages celebrated abroad. Giving this lack of consensus, the Court considered that the State had “a wide margin of appreciation regarding the decision as the whether to register, as marriage, such marriages contracted abroad” (§204-205).
Thus, the Court admitted that it could “accept that to prevent disorder Italy may wish to deter its nationals from having recourse in other States to particular institutions which are not accepted domestically (such as same-sex marriage) and which the State is not obliged to recognize from a Convention perspective” (§207).
However, the Court considered that the refusal to register the marriages under any form left the applicants in “a legal vacuum”. The State has failed “to take account of the social reality of the situation” (§209). Thus, the Court considered that prior to 2016, applicants were deprived from any recognition or protection. It concluded that, “in the present case, the Italian State could not reasonably disregard the situation of the applicants which correspond to a family life within the meaning of article 8 of the Convention, without offering the applicants a means to safeguard their relationship”. As a result, it ruled that the State “failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and the protection of their same-sex union” (§ 210).
Thus, the Court considered that there had been a violation of article 8. It considered that, giving the findings under article 8, there was no need to examine the case on the ground of Article 14 in conjunction with article 8 or 12. (§212).
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Rivista di diritto internazionale privato e processuale (RDIPP) No 2/2022: Abstracts
The second issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:
Costanza Honorati, Professor at the University Milan-Bicocca, Giovanna Ricciardi, Doctoral candidate at the University Milan-Bicocca, Violenza domestica e protezione cross-border (Domestic Violence and Cross-Border Protection) [in Italian]
Domestic violence has drawn increasing attention both from the lawmaker and legal scholars. Legal means to prevent domestic violence and protect women have been promoted and implemented at the national and supranational levels. This article concentrates on seeking and enforcing civil protection measures in cross-border family conflicts. Protective measures are often sought and taken in the State where the prospective victim (and often also the tortfeasor) is habitually resident. PIL issues are however rarely addressed. Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil matters provides a useful instrument when the need for recognition and enforcement in a different Member State arises at a later stage. Less dealt with is the issue of selecting an appropriate ground for jurisdiction, which is not governed by the mentioned Regulation. The latter issue becomes especially relevant in the very peculiar case of protection measures to be issued in the so-called State of refuge when a mother challenges a situation of domestic violence as a ground for leaving the State of a child’s habitual residence and searches for protection elsewhere. The interplay between domestic violence and abduction cases, a situation quite frequent in practice but rarely addressed in legal literature, is further explored and dealt with.
Ilaria Viarengo, Professor at the University Milan, The Coordination of Jurisdiction and Applicable Law in Proceedings Related to Economic Aspects of Family Law
This article addresses the complex features and problems arising from the combined application of all European and international instruments dealing with divorce and the economic aspects of family law. The need to avoid litigation proceedings in different jurisdictions, entailing the duplication of proceedings and costs and the need to have divorce and all the financial aspects governed by the same law are of central importance from a practical point of view. This article provides an analysis of whether and to what extent these two needs can be satisfied with the combined application of the EU family law regulations at issue. Firstly, it deals with some general issues whose solution could have an impact on the coordination among all these instruments. Consequently, it examines the interplay among rules on jurisdiction and applicable law, including the role of party autonomy in pursuing coordination.
The following comment is also featured:
Curzio Fossati, Doctoral candidate at the University of Insubria, La residenza abituale nei regolamenti europei di diritto internazionale privato della famiglia alla luce della giurisprudenza della Corte di giustizia (Habitual Residence in EU Private International Law Regulations in Family Matters in View of the Case-Law of the Court of Justice) [in Italian]
This article deals with the concept of habitual residence, which is in widespread use in the EU Regulations in the field of family law. Firstly, the article gives an overview of these Regulations, and then it analyses the case-law of the CJEU on the criterion of habitual residence referred to children, deceased persons, and spouses. The contribution examines two fundamental elements of the concept of habitual residence identified both by CJEU and scholars: the objective element, i.e. a sufficiently stable presence of a person in a Member State, and the subjective element, i.e. the intention of the person concerned to establish the permanent or habitual centre of his or her interests in that place. The article also tries to identify the most suitable method of interpretation of the concept of habitual residence and, in particular, it investigates which approach is more desirable between a uniform approach (which fosters a uniform definition of habitual residence in EU law) and a functional one (which implies an interpretation that takes into account the aim of the disposition in which the concept is used). Ultimately, the Author endorses the solution adopted by the CJEU in the IB case, which combines the aforementioned approaches.
Finally, this issue features the following book review by Cristina M. Mariottini, Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law: Henry Deeb GABRIEL, Contracts for the Sale of Goods – A Comparison of U.S. and International Law, 3rd ed., Oxford University Press, Oxford, 2022, pp. v-401.
A reform seeking to speed up the functioning of the EAPO information mechanism in Luxembourg
Carlos Santaló Goris, Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of the reform recently approved in Luxembourg concerning the functioning of the information mechanism of the Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”). The EAPO Regulation and other EU civil procedural instruments are the object of study in the ongoing EFFORTS project, with the financial support of the European Commission.
The EAPO Regulation introduced the first European civil interim measure that permits, as its name indicates, the provisional attachment of the debtors’ bank accounts in cross-border civil and commercial claims. Besides the temporary attachment of debtors’ funds, it also contains a special tool to search for the bank accounts containing those funds. This information mechanism is perhaps one of the main appeals of the EAPO. It has even inspired some national legislatures, for instance, the French one, to improve their domestic mechanisms to trace debtors’ assets in civil proceedings. Nonetheless, access to the EAPO’s information mechanism is more limited than access to the EAPO itself. Whereas creditors without a title can apply for an EAPO, they cannot submit a request to search for debtors’ bank accounts. This option is limited to creditors with a title, whether the title is enforceable or not.
Article 14 of the EAPO Regulation sets up the basic structure of the information mechanism. Provided creditors satisfy the necessary prerequisites to ask for the investigation of the debtors’ bank accounts, the court which examines the EAPO application sends a request for information to the Member State where the bank accounts are located. There, an information authority would be in charge of searching for debtors’ bank accounts and giving an answer to the requesting court.
The EAPO Regulation gives the Member States broad discretion in implementing the mechanism to investigate the debtors’ bank accounts. Article 14 only suggests three different methods that the Member States can choose to search the information about the debtors’ bank accounts. The first one consists of asking all the banks in the territory of the requested Member State to disclose whether they have the debtors’ bank accounts (Art. 14(5)(a) EAPO Regulation). According to the second method, the information about the debtors’ bank accounts is retrieved from the registries held by public administrations (Art. 14(5)(b) EAPO Regulation). Finally, according to the third method, courts may “oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts” (Art. 14(5)(c) EAPO Regulation). The request to disclose the information is “accompanied by an in personam order by the court prohibiting the withdrawal or transfer” by the debtor “of funds held in his account or accounts up to the amount to be preserved by the Preservation Order” (Art. 14(5)(c) EAPO Regulation). This list of methods is not exhaustive, and the Member States are allowed to opt for any other method as long as it is “effective and efficient” and “not disproportionately costly or time-consuming” (Art. 14(5)(d) EAPO Regulation).
At the Luxembourgish domestic level, the EAPO information mechanism represented a major innovation. The Luxembourgish civil procedural system lacks an equivalent national tool to investigate debtors’ bank accounts. Therefore, the EAPO’s mechanism became (and still is) the only tool to trace debtors’ bank accounts during a civil procedure in Luxembourg. When a creditor requests a national provisional attachment order (saisie-arrêt), but ignores in which bank the debtors’ accounts are located, the attachment order must be sent to all the banks where those accounts may be held. The more banks the saisie-arrêt is sent to, the higher the chances of freezing the debtors’ funds. Such “fishing expeditions’ are costly. The saisie-arrêt is served to the banks through a bailiff (huissier). The more banks the saisie-arrêt is sent to, the higher the fee that the bailiff will charge.
Luxembourg appointed its national financial authority, the Commission de Surveillance du Secteur Financier (“CSSF”), as its national information authority for the EAPO information mechanism. In contrast to the costly “fishing expeditions” of the saisie-arrêt, the CSSF does not charge any fees for obtaining information about the debtors’ bank accounts.
The CSSF searches for the bank accounts by requesting that all the banks or branches of foreign banks operating in Luxembourg disclose if they hold the debtors’ accounts (Art. 14(5)(a) EAPO Regulation). Until September 2022, this request was sent by regular mail to all those entities. Banks were given 20 days to reply to the CSSF. Those 20 days, plus the time it takes to send the request by mail to the banks and receive their answers, explain why it takes at least one month until the CSSF can reply to the court which submitted the original information request.
However, from 1 September 2022, the request for information is sent through an online platform, the Guichet numérique eDesk (Circulaire CSSF 22/819). Banks operating in Luxembourg are required to join this platform. Thanks to this reform, the CSSF will be able to obtain information about the debtors’ bank accounts faster. It also ensures better monitoring of the answers provided by the banks. Overall, this reform enhances the functioning of the EAPO’s information mechanism at the Luxembourgish level and is in line with the EAPO Regulation, which favours the swift transmission of documents (Recital 24 Regulation).
Virtual Workshop on September 20: Hisashi Harata on Foreign-Corporation Regulations and Private International Law
On Tuesday, September 20, 2022, the Hamburg Max Planck Institute will host its 25th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Hisashi Harata (University of Tokyo) will speak, in English, about the topic
“Foreign-Corporation Regulations and Private International Law: With a Case Study on Derivative Action”.
The globalization of enterprise organization as well as activities causes more serious labour issues, environmental issues, human rights issues and so on. The corporate law rules on duties and responsibilities of corporate directors are regarded as a tool for corporate governance and
compliance.
Based on the current position for the lex incorporationis as well as the internal-affairs doctrine, the breach of duties and responsibilities of directors and the shareholder’s standing for derivative action would be ruled by the lex incorporationis, except for the application of overriding mandatory rules of lex fori.
However, the existence of foreign-company regulations in different jurisdictions like California, New York, Hongkong, Netherland etc. might lead us to a theoretical reflection, as they could impose regulations severer than lex incorporationis on directors and there is no room for such regulations of third countries other than lex incorporationis and lex fori to be applied within the conventional framework of P.I.L.
This presentation will shed lights on this theoretical issue, introducing practical case-study analysis on derivative action, and suggest several problematic points to be tackled in further studies.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.