Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

Greece1

Ioanna Thoma

I. Origins of modern Greek private international law

The first set of codified private international law rules in Greece was adopted in the Civil Act 1856 (Law 391/1856 published in 75 FEK of 15 November 1856). These rules are acknowledged to reflect a variety of influences: partly inspired by French law (on issues such as the law applicable to capacity of persons and its extraterritorial application to Greek citizens); partly imbued with the Germanic theories of Friedrich Carl von Savigny (on issues such as the applicable law to contracts and →torts; →Savigny, Friedrich Carl von); partly adopting the Italian approach (on applicable law to family matters). The first codification of private international law remained in place until 1946, when the new Civil Code (Astikos Kodikas of 23 February 1946, A N 2250/1040 published in 151 FEK 151 of 10 May 1946, henceforth CC) entered into force.

The inception of the 1946 rules was the result of a thorough comparative work undertaken by the legislative power at the time. Still in force today, these conflict-of-law provisions are bilateral rules setting out: (i) a legal relationship/institution, subject to characterization; (ii) a →connecting factor; which in turn indicates (iii) an applicable law. Almost 20 years later (1967/1968) a new Greek Code of Civil Procedure (eventually published by Presidential Decree 503/1985, FEK 182 of 24 October 1985 henceforth CPC) was implemented, which included provisions on international jurisdiction and recognition of foreign judgments. One of the main attributes of this legislation was the treatment of applicable foreign law as a matter of law rather than a matter of fact to be established by the parties. Since then, Greek courts take foreign law into account ex officio, and the judge is responsible for establishing and controlling its content with the help of expert opinion, largely provided by the Hellenic Institute of International and Foreign Law based in Athens. Finally, a periodic overview of the developments of Greek case-law in the area of private international law is published (in French or English) in the Revue Hellénique de Droit International.

II. Sources of modern Greek private international law

The principal domestic sources of Greek private international law are arts 4 to 33 CC for substantive law matters, arts 3 to 6 and 22 to 41 CPC concerning international jurisdiction matters, arts 323, 780, 905 CPC regarding the recognition and enforcement of foreign judgments, as well as arts 903 and 906 CPC on recognition and enforcement of foreign arbitral awards. Scattered, uncodified provisions of conflict-of-law rules as well as internationally mandatory rules are also found in various pieces of Greek substantive legislation. Further, Greek private international law has several international and European law sources, often stating that it is applicable subject to the application of the relevant international or European legal instruments. For example, as far as intra-EU recognition and enforcement of foreign judgments is concerned, Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1, in the future on the Brussels I p. 1Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1) (→Brussels I (Convention and Regulation))) applies, whereas for judicial rulings emanating from non-EU states, the relevant arts CPC mentioned above come into play or any relevant bilateral treaties concluded on the matter.

To mention the most important international law-producing institutions, Greece has been a member of: the Hague Conference since 1955, the Commission Internationale de l’état civil since 1959, UNIDROIT since 1940, UNCITRAL from 1974 to 1980 and again since 2007. European legislation is applicable to Greece since its accession to the EEC in 1981. European legislation addresses among other issues of applicable law to contracts and torts, family law and →maintenance obligations, taking of evidence (→Evidence, procurement of), →service of documents, cross-border insolvency, jurisdiction, recognition and enforcement of judgments. In addition, several pieces of European substantive legislation contain conflict-of-law rules, internationally mandatory rules and substantive private international law rules.

III. Law of persons

According to Greek case-law and doctrine, the legal personality of an individual encompasses the beginning and end of a person’s life from a legal point of view. It also recognizes that a person is entitled to have rights and be subject to obligations under the law. Article 5 CC provides that an individual’s legal personality is determined by the law of their →nationality.

Articles 30 and 31 CC deal respectively with individuals without nationality, ie stateless persons, and those with multiple nationalities. Article 30 CC provides that, subject to a different rule elsewhere in Greek law, the law governing a person without nationality is the law of their habitual residence and, where the person has no such habitual residence, the law of their (simple) residence (→Domicile, habitual residence and establishment). For the specific case of refugees, art 12(1) 1951 Refugee Convention (Geneva Convention of 22 April 1951 relating to the status of refugees, 189 UNTS 137) relating to the status of refugees, transposed into the Greek legal system by Decree 3989/1959 (FEK 201 of 26 September 1959), stipulates that the →personal status of a refugee is governed by the law of the state of domicile or, failing such domicile, by the law of the state of residence (→Domicile, habitual residence and establishment). Further, according to art 31 CC, if a person has both Greek and foreign nationality, the legal personality will be governed by Greek law. If the person has multiple foreign nationalities, the law of the nationality of closest connection will be indicated as applicable.

When an individual has gone missing and is unlikely to be alive, then subject to certain conditions the state may declare that individual’s status as ‘disappeared’ even if death cannot be ascertained. As a general rule, art 6 CC provides that the law of the person’s nationality is applicable in order for a court to declare them disappeared. However, a Greek court may declare the disappearance of a foreign national as long their domicile, residence (either habitual or simple) or owned property is in Greece. Greek nationals in particular can be declared disappeared by the competent court of the capital (ie Athens) even when their domicile or residence is not in Greece (art 783 CC).

A person’s relevant custody regime is also governed by the law of nationality according to art 24 CC. Greek courts have competence to appoint a custodian or tutor to a foreigner with habitual residence in Greece. If the foreigner has merely simple residence or owns property in Greece, Greek courts have competence to order →provisional measures. Finally, if the identity of a person directly interested in a matter, termed the principal, cannot be ascertained or if such person is absent, their residence is unknown and it is necessary to appoint a custodian, then the court with jurisdiction and competence will apply the →lexfori in order to determine that appointment.

Civil status-related events, ie births, marriages (→Marriage) and deaths of foreigners living in Greece, must be registered with the Greek authorities in addition to any obligations arising under their respective national laws to declare such events to their consular authorities (art 40 Law 344/1976 published in FEK 143 of 11 June 1976). Similarly, Greeks living abroad have to register these events with the Greek consular authorities, with a record to be kept at the Special Registrar’s Office in Athens (art 41 Law 344/1976). The registration certifies the act for the purposes of Greek law (art 41 Law 344/p. 11976, as amended by Law 1250/1982 published in FEK 46 of 7 April 1982).

The general legal capacity to act, including its conditions or limitations, is governed by the law of the individual’s nationality according to arts 7 and 8 CC. Article 8 CC states that the deprivation or any other limitation to the legal capacity to act is pronounced by a court in accordance with the law of the person’s nationality. Greek courts may make such a ruling for foreigners with habitual residence in Greece, while they may merely issue →provisional measures for foreigners with simple residence or property in Greece. In the case where a Greek citizen is no longer habitually resident in Greece, the competent court in Athens retains jurisdiction to issue a judgment on this matter (art 801 CPC). If foreigners carrying out legal transactions in Greece do not enjoy legal capacity under the law of their nationality, they may still be considered legally capable if the requirements of Greek law are fulfilled (art 9 CC). Finally, specific restrictions and limitations to a person’s legal capacity may be provided in the laws applicable to a specific legal relationship.

IV. Law of legal entities

Article 10 CC stipulates that the capacity of legal entities, with regard among others to its establishment, governance, voting rules, representation, management and dissolution, is governed by the law of its seat. The characterization (→Classification (characterization)) of legal entities under Greek law is wide and includes corporations, associations, foundations, non-profit organizations and partnerships irrespective of whether their equivalent exists under Greek substantive law. Greek case-law has traditionally interpreted the seat as the place where the entity has its real centre of management, where its main organs are established and where most important decisions for the operations of the entity are taken. However, the law of the place of incorporation of the company is determined as applicable for: (i) shipping companies incorporated abroad which own or manage ships registered under the Greek →flag (Law 791/1978 published in FEK 109 of 6 July 1978); (ii) shipping companies incorporated in Greece according to a specific regime (set out in art 25 Law 27/1975 published in FEK 77 of 22 April 1975, Law 378/1968 published in FEK 82 of 17 April 1968, Law 89/1967 published in FEK 132 of 1 August 1967); or (iii) shipping companies which own ships registered under foreign flags as long as they are managing the business via subsidiaries or branches established in Greece (art 4 Law 2234/1994 published in FEK 142 of 31 August 1994). Greek legal doctrine and case-law have extensively addressed the impact of EU case-law on Greek law (in decisions such as Daily Mail (Case 81/87 The Queen v H M Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc [1988] ECR 5483), Centros (Case 212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] ECR I-1459), Uberseering (Case 212/97 Uberseering v NCC [2002] ECR I-9919), Inspire Art (Case 167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] ECR I-10155) and Cartesio (Case 210/06 Cartesio Oktató és Szolgáltató bt [2008] ECR I-9641)), and have underlined the need for legal certainty and predictability, particularly regarding the protection of third party rights.

V. Contracts

The choice-of-law rules governing →contractual obligations set out in the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)) form an inherent part of the Greek private international law. In this section, the focus is on all contracts falling outside the scope of application of the Rome I Regulation and where art 25 CC is applicable. The CC stipulates that contractual obligations are to be governed by the law chosen by the parties, and absent such choice by the law deemed appropriate having regard to all special circumstances relating to the contract.

The first part of the rule establishes the principle of →party autonomy to a part or whole of the contract, so-called →Dépeçage, as has been recognized by Greek case-law and legal doctrine. According to the interpretation and application of this provision by Greek courts, the →choice of law may be expressed but could also be inferred as an implied choice as long as this is established with reasonable certainty. The second part acknowledges that the courts are to be afforded a certain degree of discretion in their assessment of the law that is properly applicable to a contract. Factors for determining the proper law (→Proper law (doctrine)) of p. 1the contract could vary from the place of contracting, the parties’ →nationality, their places of business, to the previous contractual arrangements concluded between them. The applicable law regulates issues such as the interpretation, validity and performance of a contract, penalties for breach of obligations, assessment of →damages, termination of obligations, as well as simple mandatory rules restricting the parties’ freedom to contract. According to the prevailing theory in Greek legal doctrine, the law applicable to pre-contractual liability (→Culpain contrahendo) is determined by art 25 CC.

There are some exceptions to the application of the rule established in art 25 CC. For example, the law applicable to employment contracts of seamen has been determined in Greek case-law as the law of the ship’s →flag, unless the ship is registered under a flag of convenience. In this vein, Legislative Decree 2687/1953 (published in FEK 317 of 10 November 1953) provides that the employment contracts of foreign seamen working on ships registered as ‘foreign capital’ under this law are governed by the law of the nationality of such employees (→Employment, maritime). Further, internationally mandatory rules are pertinent to the interpretation and application of this provision. Greek case-law has recognized that specific provisions of Greek commercial lease, labour and consumer laws (and prior to the introduction of the Euro, provisions for the protection of the national currency) qualify as internationally mandatory rules. Greek courts also apply internationally mandatory rules originating from foreign legal systems. Where the Rome I Regulation is applicable, these rules can also have an EU law origin, as it was demonstrated for example in the case of specific provisions governing commercial agency contracts (→Agency and authority of agents; →Commercial agency, franchise and distribution contracts).

VI. Torts

The choice-of-law rules governing non-contractual obligations in →civil and commercial matters set out in the →Rome II Regulation (non-contractual obligations) (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) form an inherent part of the Greek private international law. In this section, the focus is on all non-contractual obligations falling outside the scope of application of the Rome II Regulation and where art 26 CC is applicable. This provision states that obligations arising from tort shall be subject to the law of the state where the tortious act took place, ie, the lex loci delicti. The legal characterization of ‘tort’ encompasses a wide scope of non-contractual obligations according to Greek case-law and doctrine.

It is important to note that several theories have been expressed in the Greek case-law and legal doctrine in order to specify the place where the tortious act occurred. Accordingly, it has been argued that the →connecting factor of the rule designates the law of the place where the act was committed; or the place where the harm was suffered; or the place where the tortfeasor intended for the harm to be inflicted; or the centre of gravity of the act committed. The highest court instance of the country has applied a mixed approach according to which the law applicable to torts and non-contractual obligations is both the law of the place where the act was committed and the law of the place where the damage was suffered. This gives the possibility to the victim to choose between the two when pursuing its claim and filing an action before the courts. The applicable law regulates issues such as the: existence, nature and assessment of liability and damage; extent of the liability and any limitations thereof; the repartition of liability among various tortfeasors; the persons entitled to compensation; treatment of contributory negligence; →prescription and limitation of the obligation.

VII. Family law matters

Articles 13 to 23 CC determine the applicable law to family law matters. To begin with, art 13 CC sets out the law governing the substantive and formal conditions for the validity of →marriage. The former are decided in accordance with the national law of one of the two persons who intend to get married whichever is more favourable for the validity of the marriage (the favor matrimonii rule). This law governs issues such as the lawful age and legal capacity for marriage, the requirement of parental consent, consanguinity, bigamy and affinity. →Registered partnerships fall under the scope of the notion of marriage. However, polygamous and same sex marriages were traditionally regarded as unacceptable on grounds of the reservation of ordre public. It should be noted at p. 1this point that in November 2013 the European Court of Human Rights ruled that Greece violated the ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221) by excluding homosexual couples from the possibility to conclude registered partnerships (Vallianatos and Mylonas v Greece, C S and others v Greece App nos 29381/09 and 32684/09 (EctHR, 16 January 2013)).

The formal validity of the marriage to be celebrated is governed either by the national law of one of the two persons about to get married or by the law of the place of celebration of the marriage (art 13(1) and (2) CC). This provision was implemented via Law 1250/1982 (published in FEK 46 of 7 April 1982) which aimed to legalize the civil weddings celebrated by Greeks abroad at a time when such possibility did not exist under Greek law. The same law also recognized retroactively all civil marriages contracted abroad by Greek nationals under specific conditions. Finally, Greek nationals who get married abroad have the possibility to celebrate a civil wedding before the Greek consular authorities (art 13(2) CC). Such marriage is valid for Greece even if the country where it is celebrated does not recognize its validity. By analogy, it is argued that the same applies to marriages contracted by foreign consular authorities in Greece.

The law applicable to the personal relations between the spouses during their married life (such as equality between the spouses, amendment of the wife’s last name) is in order of decreasing priority: the common national law during the marriage as long as one of the spouses is still subject to this national law; in lack thereof, the law of the place of the last habitual residence the spouses shared together during their marriage even if one of them has moved from this place at some point; and in lack of the latter, the law of the place with which the spouses are most closely connected, this being quite often the →lexfori. In a similar vein, the law applicable to the pecuniary relationships between spouses (such as regime governing the assets accumulated during marriage, dowries, prenuptial agreements) is the law governing their personal relationships following immediately the celebration of the marriage (art 15 CC). It should be noted that Greece has not ratified the Hague Matrimonial Property Convention (Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes, 16 ILM 14) regimes but has ratified the Hague Maintenance Applicable Law Convention 1973 (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204). The above rules are applicable to the extent that the question is not covered by the scope of application of the →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1). Further, choice-of-law rules dealing with divorce and judicial separation are found in →Rome III Regulation (divorce) (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10). To the extent that the Regulation is not applicable, the CC provisions come into play and set out that divorce and judicial separation (covering issues like the grounds and consequences resulting from a divorce or judicial separation) are subject to the law applicable to the personal relationships of the spouses, whichever that is at the beginning of the proceedings aiming at the divorce or separation (art 16 CC). Laws prohibiting the dissolution of a marriage or enabling one of the spouses to exercise the right to dissolve the union arbitrarily are against the Greek ordre public.

Articles 17 to 22 CC deal with the legal status of a child and the relationships between the child and the parents, covering issues such as the child’s last name, the exercise of custody and care, or overall parental authority. The law distinguishes between a child born within wedlock, or the equivalent, and a child born by parents whose relationship has not been formalized through any legal act. A child is deemed to be born in wedlock according to the law applicable to the personal relationships between the mother and the husband when the child was born, or, if the marriage was dissolved before birth, whichever law was applicable to these relationships at the point of dissolution of the marriage (art 17 CC). The law governing the relationships between parents and child born in wedlock is in decreasing priority the: common national law of the parents, absent that the law of their common habitual residence, and absent that the law of the child’s →nationality (art 18 CC). Greece ratified the European Child Custody Convention (European Convention p. 1of 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37). These rules are applicable to the extent that the question is not covered by the scope of application of the Brussels IIa Regulation. Regarding the law applicable to the relationship between parents, who have not legally formalized their relationship, and their child, the CC makes a further distinction and addresses separately the relationships between the mother and the child on one hand and those between the father and the child on the other. Mother–child relations are governed in (decreasing) priority first by the common national law of the parents, absent that by the law of their common habitual residence, and absent that by and the mother’s law of nationality (art 19 CC). Father–child relations are subject in (decreasing) priority to the law of the: common national law of the parents, absent that to the law of their common habitual residence, and absent that to the father’s law of the nationality (art 20 CC).

The relationships between the parents who have not legally formalized their relationship are governed by the parents’ last common law of nationality during pregnancy, absent that by the common place of their habitual residence and absent that by the law of the place of their simple residence (art 21 CC). Finally, art 22 CC deals with the so-called assimilation, formerly known as ‘legitimation’, of a child born outside wedlock further to the subsequent marriage of its parents (→Kinship and legitimation). According to this provision, assimilation is subject to the law governing the personal relationships between the parents at the time of their marriage. Greece has ratified the 1970 ICCS Rome Convention on legitimation by marriage (Convention of 10 September 1970 on legitimation by marriage, 1081 UNTS 247) and 1975 Convention of the Council of Europe on the legal status of children born out of wedlock (European Convention of 15 October 1975 on the legal status of children born out of wedlock, 1138 UNTS 303). Greece has also ratified the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89).

Finally, art 23 CC provides that the substantive conditions for the establishment and dissolution of an →adoption are governed by the law of each party’s →nationality. This provision aims at promoting the best interests of the child. Foreign laws prohibiting adoption, allowing the child to maintain its links to its natural parents or requiring the decision of an administrative authority have been found to violate the Greek ordre public. On the other hand, the formal conditions for adoption are governed by art 11 CC, ie either by the law governing the substance of the adoption, or the law of the place where the decision for the adoption was made, or according to the law of the nationality of the parties. Greek courts always have the jurisdiction to order adoption of or by Greek nationals as long as they have international competence in the matter. The exclusive jurisdiction of the courts in matters relating to adoption is considered against the Greek ordre public. The relations between adoptive parent(s) and the adopted child are governed in order of decreasing priority by the common law of the nationality of all parties involved at the point of adoption, absent that by the law of their last common usual residence at the point of adoption, and absent that by the law of the adoptive parent’s nationality at the time of establishment of the adoption and, in case of adoption by spouses, by the law governing the personal relationships between spouses. Greece has not ratified the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 1870 UNTS 167; 32 ILM 1134).

VIII. Succession

The Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation (succession)) forms an inherent part of the Greek private international law. This section deals with CC provisions which govern →succession where the Regulation is not applicable. Article 28 CC provides that the legal consequences of succession are governed by the law of the nationality of the deceased at the point of death. Articles 30 and 31 CC apply in connection with art 28 in order to define the applicable law in case the deceased had more p. 1than one nationality or no nationality at all. According to case-law and doctrine, the law of nationality of the deceased determines all questions relating to inheritance on the basis of a last will left by the deceased or by force of law where the deceased has made no testamentary provision for the distribution of the estate. These questions cover the: substantive requirements for the validity of a will as well as the content, interpretation and revocation of a will, also intestate succession such as the identification of those entitled to a portion of the deceased’s estate, the class of persons succeeding and the percentages to which they are entitled, entitlement to compulsory portion, acceptance and renunciation of the inheritance, disinheritance of a legitimate heir, the treatment of any gifts made prior to death by the deceased to heirs, calculation of the rights and debts of the estate, judicial liquidation of the estate, and all rights and →remedies of the heirs.

Article 7 CC governs the capacity to draft a will (ie the law of the deceased’s nationality when he draws up the will) although it has been argued by scholars that it would be acceptable to apply the deceased’s law of the nationality at the point of his death. The formal validity of the will is governed by Law 1325/1983 (published in FEK 16 of 27 January 1983), which ratified the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175). It provides that the formal validity of the will is determined either by the law of the place where the will was made, or by law of the testator’s nationality, by the law of the testator’s domicile place either at the time when he made the disposition or at the time of his death, or by the law of the testator’s law habitual residence either at the time of the disposition or of death, or alternatively as far as →immovable property is concerned, the law of the place where this is located. Common wills are not allowed under Greek substantive law but Greek courts have not considered that this prohibition is an element of national ordre public. Similarly, the Greek ordre public does not reject administration of the estate by an executor or administrator. However, freedom of choice of applicable law governing succession or gender discrimination with regard to inheritance rights is rejected on grounds of ordre public.

Law 1738/1987 (published in FEK 200 of 20 November 1987) contains special provisions stating that Greeks living abroad consistently for at least 25 years are exempt, as far their estate located in Greece is concerned, from the restrictions under Greek law concerning interstate succession and the entitlement to compulsory portions of the estate of the deceased to certain categories of relatives (descendants, parents and surviving spouse as in art 1825 CC). In a similar vein, Greek scholars have argued that the inheritance rights of the surviving spouse should be governed by the law governing their personal and pecuniary relationships between the spouses prior to the death of either. Legislative Decree 472/1974 (published in FEK 174 of 25 June 1974) entitles the spouse of a Greek spouse validly to renounce his/her rights of succession to the estate of the deceased Greek national by concluding a contract in writing between the spouses domiciled abroad, whether they are already married or planning to marry.

IX. Property law matters

Article 27 CC provides that possession and real rights on movable or→Immovable property are to be governed by the law of the state where the property is located. Greek courts are not bound by the meaning that the terms ‘possession’ and ‘real rights on things movable or immovable’ have under Greek law. The courts apply the lex rei sitae in order to define which things fall within the scope of art 27. Intangible assets such as industrial and intellectual property rights, legal rights, securities and the right to someone’s personality are excluded from the scope of art 27. The lex rei sitae also governs the characteristics of a thing, ie whether it is accessory, vacant, divisible or indivisible, unclaimed by an owner, of common use or non-tradable. Further, the rule of art 27 determines the conditions for the acquisition, creation, content, restrictions to the exercise and loss of property rights, the types and numbers of property rights available, the legal requirements for the constitution, transfer and termination of property rights, the modalities for the transfer of the legal title and the effects of such transfer, as well as the conditions for the establishment and extinction of a pledge or mortgage. Article 12 CC expressly stipulates that the form of a legal act concerning real rights is governed by the law of the place where the property is situated.

It should be noted that the contractual part of a transaction, for instance in a contract for p. 1the sale of goods (→Sale contracts and sale of goods), is governed by the law determined according to art 25 CC mentioned above. As far as movable property is concerned, the prevailing theory in the doctrine of Greek private international law is that a property right established in one state does not cease to exist when the property is moved to a different state, as long as the same or similar type of right also exists in the second state. On the other hand, the transient presence of goods in a country while en route to another destination does not render such goods subject to the property laws of that country. Bills of lading (→Bill of lading) facilitate transactions such as transfer of goods or the provision of collateral for the purpose of obtaining security and credit from banks. It is worth mentioning that art 25(1)(a) of Law 1892/1990 (published in FEK 101 of 31 July 1990) prohibits the sale and transfer of real/property rights to immovable property located in specific parts of the Greek territory close to the borders of the country. Greek and EU citizens are allowed to enter into such contracts subject to the fulfilment of specific conditions set out in this law.

There are specific rules regarding the applicable law to real rights for vessels which constitute a specific category of movable property, given that they constantly cross borders and represent a high value. Article 9 Greek Code of Private Maritime Law (Law 3816/1958 published in FEK 32 of 28 February 1958) provides that the law of the →flag of the vessel (lex navis), ie the law of the place where it is registered, governs the property rights to it. The scope of application of this rule covers the acquisition, transfer and abolishment of the legal title to a vessel whether established by contract, usufruct, confiscation or acquisition during war. In the same vein, the lex navis determines registration of a mortgage to a vessel (→Property and proprietary rights in vessels). Article 203 of the Greek Code of Private Maritime Law provides that, even if there is a subsequent change in the vessel’ flag, the original registration of the mortgage continues to be valid. The lex navis also governs the question whether the consent of the mortgagee is a pre-condition for the sale of a mortgaged vessel where the sale results in a change of flag. Further, art 2 of Legislative Decree 3899/1958 (published in FEK 195 of 11 November 1958) requires that a contract for the execution of a preferred mortgage on a vessel registered under a Greek flag be drawn up before a notary when the contract is concluded in Greece. If the contract is concluded abroad, it may fulfil the requirements of either Greek law or the law of the place where the contract is executed. Another question regards the law applicable to maritime liens. The prevailing position in Greek doctrine is that the lex navis governs the existence, extent and duration of maritime liens. However, some Greek courts have considered that the rank of creditors holding a maritime lien is a procedural matter determined by the →lexfori. In case of change of the vessel’s flag, any existing maritime lien remains valid as long as the other law of the new flag of such or an equivalent security exists.

X. Form of legal acts

Article 11 CC provides that a legal act is formally valid if it fulfils the requirements foreseen in the law governing the substance of the legal act, or the law of the place where the act has been concluded, or the law of the →nationality of all the parties to the legal act. The three laws are applied in no specific sequence; rather the applicable law is selected on the basis of its being less restrictive or more favourable in ensuring the formal validity of the act. Legal acts are considered all those legal relationships where a party intends, acknowledges and declares that it enters into a relationship which gives rise to specific legal consequences. Contracts, unilateral acts, notices and declarations (relating to a legal act) also fall within the scope of the article.

Renvoi

Article 32 CC excludes the →Renvoi and clearly states that the rules of private international law of a foreign state are not taken into account when a foreign law is designated as applicable to a legal relationship. Greek law provides an exception to this principle under art 90 Law 5325/1932 (published in FEK 69 of 16 March 1932) and art 70 Law 5960/1933 (published in FEK 301 of 23 December 1933). According to these provisions the capacity to undertake an obligation by means of a →Bill of exchange, promissory note or cheque (→Cheques) is governed by the law of the country to which the private international law of the nationality of the person intending to undertake such obligation refers.

p. 1Ordre public

Article 33 CC stipulates that the provisions of a foreign law do not apply if the legal consequences arising from its application in a specific case contradict morality or in general ordre public. This means that the same provision of foreign law applied to different facts may lead to legal consequences, so that whether the provision is found to be violating ordre public varies from case to case. The mere fact that a legal institution does not exist in the Greek legal system does not automatically amount to a breach of the Greek ordre public. The content of ordre public in Greece covers the fundamental social, economic, moral and legal principles and values in Greek society. Once the application of a specific provision of foreign law is set aside, Greek courts tend to apply the lex fori, ie Greek law. However it has been argued that a mixed approach may be suitable, whereby provisions of Greek and foreign law will be applied selectively.

XIII. Civil procedure: jurisdiction, recognition and enforcement of judgments and arbitral awards

The sources of rules applicable to international civil procedure in Greece are: domestic law, ie the CPC; European law, ie the Brussels I Regulation, the Brussels IIa Regulation, the European Small Claims Procedure Regulation (Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, [2007] OJ L 199/1), the European Payment Order Regulation (Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, [2006] OJ L 399/1) and the European Enforcement Order Regulation (Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, [2004] OJ L 143/15); the European Service Regulation (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, [2007] OJ L 324/79); the Evidence Regulation (Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, [2001] OJ L 174/1); the Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1), the Succession Regulation, European Mediation Directive (Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters ([2008] OJ L 136/3)) and the European Legal Aid Directive (Council Directive 2002/8/EC of 17 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes, [2003] OJ L 26/41); and public international law, ie bilateral and multilateral international conventions.

In this section, European instruments and international conventions will not be addressed. Rather, the focus will be on presenting domestic, national law provisions applicable to issues falling outside the scope of European instruments and international conventions.

1. Jurisdiction

Articles 22 to 44 CPC establishing general or special territorial competence are also applicable for the establishment of international jurisdiction of the Greek courts. A territorially competent court is deemed to have international jurisdiction (art 3 CPC). In summary, the general jurisdictional basis is either the permanent and principal domicile of a person (art 22 CPC; →Domicile, habitual residence and establishment); or where the person lacks Greek domicile or domicile elsewhere the residence of the person in Greece (art 23.1(1) CPC), or the place of the person’s professional establishment where the matter concerns the person’s professional activity (art 23.2 CPC) or the legal entity has its seat (art 25.2 CPC). Special jurisdictional bases exist when the contract is concluded or when the contested obligation is to be performed in Greece (art 33 CPC), where the criminal act took place in Greece for →torts constituting also criminal offenses (art 35 CPC), where a person’s property is situated in Greece even if the person against whom the claim is brought does not have Greek domicile (art 40 CPC). Greek courts have exclusive jurisdiction where p. 1the real estate is located for all claims relating to real rights of immovable assets (art 29 CPC), where the seat of the company is located for all internal disputes between a company and its partners (art 27 CPC), where the deceased had his/her domicile or, in lack thereof, his/her residence at the time of the death for all claims pertaining to succession rights (art 30 CPC) – the same court has jurisdiction for issuing an inheritance certificate (arts 810 and 819 CPC), where the parties have expressly agreed to identify the territorial competence and international jurisdiction of a court with regard to pecuniary claims (arts 42 to 44 CPC), the agreement being mandatorily in writing where it concerns future claims.

2. Recognition and enforcement of judgments

Article 323 CPC lays down the rules for the recognition of a judgment rendered in contentious proceedings. Such a judgment must have res judicata effect in the state where it was issued, the foreign court must have international jurisdiction according to the rules of Greek law, the losing party must have been given the right to be heard in the same way that this right is enjoyed by the nationals of the foreign state, the foreign res judicata cannot be recognized if it contradicts a domestic res judicata, and finally the foreign judgment cannot be recognized if it is against →public policy (ordre public). Article 780 CPC states the conditions for the recognition of the effects of foreign judgments of voluntary jurisdiction as follows. The substantive law applied by the foreign court is the same as that which would have been applied pursuant to Greek choice-of-law rules, the decision is rendered by a court having international jurisdiction according to the procedural law of the state whose substantive law was applied, the recognition does not violate the Greek ordre public. A decision made by a foreign court is enforced further to its declaration by a Greek court as enforceable (art 905.1 to 3 CPP) and as long as it is compliant with the Greek ordre public.

3. Recognition and enforcement of arbitral awards

Greece is a party to the 1958 New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), the 1923 Geneva Protocol on Arbitration Clauses (Protocol on Arbitration Clauses of 24 September 1923, 27 LNTS 157), the League of Nations (Geneva) Convention on the Execution of Foreign Arbitral Awards, 1927 (Geneva Convention of 26 September 1927 on the Execution of Foreign Arbitral Awards, 92 LNTS 301) and the ICSID Convention (Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965, 575 UNTS 159). These public international law instruments apply to the recognition and enforcement of foreign arbitral awards in Greece. Further, Law 2735/1999 (published in FEK 167 of 18 August 1999) on International Commercial Arbitration implements the 1985 UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law) in the Greek legal system with certain points of divergence.

Literature

  • Αναστασία Γραμματικάκη-Αλεξίου, Ζωή Παπασιώπη- Πασσιά, Ευάγγελος Βασιλακάκης, Ιδιωτικό Διεθνές Δίκαιο (Εκδόσεις Σάκκουλας 2012) (Anastasia Grammatikaki-Alexiou, Zoi Papasiopi-Passia and Evangelos Vasilakakis, Idiotiko Diethnes Dikeo (Sakkoulas Editions 2012)); Χάρης Ταγαράς, Ιδιωτικό Διεθνές Δίκαιο (ΑντΝ Σάκκουλας 1995) (Harris Tagaras, Idiotiko Diethnes Dikeo (Ant N Sakkoulas 1995)); Constantine Taliadoros, Greek Civil Code (Ant N Sakkoulas 2000);

  • Pelayia Yessiou-Faltsi, International Encyclopaedia of Laws – Civil Procedure: Hellas (Kluwer Law International 2004);

  • Spyros Vrellis (ed), International Encyclopaedia of Laws – Greece (Kluwer Law International 2009); Σπύρος Βρέλλης, Ιδιωτικό Διεθνές Δίκαιο (Νομική Βιβλιοθήκη 2008) (Spyros Vrellis, Idiotiko Diethnes Dikeo (NomekeVivliotheke 2008)); , last accessed on 20 May 2015.

This contribution reflects the personal views of the author and does not represent in any way the position of the past, present or future insititutions with which the author was/is/will be affiliated.