The content of the judgment on the application for interim remedies / precautionary measures and the acceptance or not of the application do not affect or are to be construed as a judicial precedent over the examination of the case in the main case.
Which are the main conditions for applying for interim remedies and precautionary measures: Urgent need, forthcoming danger
The main conditions for applying to the Court for interim remedies and precautionary measures are either an urgent need or a forthcoming danger that has to be avoided. The nature of the urgency or the danger should be such, that, - objectively, but having taken into account the factors, special circumstances and underlying facts of the case, - if the measure or remedy is not taken, then the applicant party will suffer a serious and mostly irreversible loss in its current state and its legal rights, which, in turn and as consequence, will cause that any final judgment upon the applicant’s (main) case, at the time that is issued, will be without any substantial practical effect. This will be so, since the damage, that will have already occurred, will be detrimental the applicant’s rights and claims and, even if the applicant’s rights may be upheld by Court as a result of the main case, they will be materially worthless at the time of final judgment award notwithstanding any entitlement to compensation.
The applicant party is obliged to make specific allegations regarding urgency and/or forthcoming danger at the time that its application is lodged with the Court; nonetheless, the nature of interim remedies and precautionary measures has the effect, that the applicant may make additional allegations on urgency and/or on forthcoming danger at the time of the hearing of its application.
The description of this/these condition(s) in the application has to be accompanied with a clear description of the right or the legal relationship that needs to be secured by the order of the interim remedy/measure.
What types of interim remedies and precautionary measures are available under Greek Civil Procedural Law?
As a general rule, the Court may order any type of interim measure/remedy that it finds suitable for the protection and “preservation” of the right or the legal relationship until the issue of the judgment on the main trial, as long as the enforcement of such order does not satisfy what would have been the main claim, namely leading to an award of the full exercise of the right or legal interest to the applicant party.
Depending on the nature of the case and the substantive law that has to be applied, there exist exceptions to the above rule regarding: (a) period of validity of the interim remedy / precautionary measure, (b) the satisfaction of the main right or legal relationship itself.
If the urgency or danger are immediate, an interim injunction may also be ordered by the Court, following the applicant’s specific application to this effect. This injunction will be most often valid until the hearing on the application for interim measures, and its validity may be extended until the issue of the judgment on interim measures. The aim of the interim injunction is that the corresponding application to the Court is both heard and adjudicated in a very short period (counted in days).
Typical interim remedies and precautionary measures are the following:
- Security payment, whether or not the claim on the right or legal relationship that needs to be secured is monetary. If the claimant’s right is awarded by the judgment on the main case, the security payment is released in favor of the claimant.
- Interim mortgage, in cases that the claim on the right or legal relationship that needs to be secured entails award of payment (either as the main claim or as an ancillary/alGiannouzi & Associates Law Offices 65 ternative claim) in favor of the claimant. Under Greek law, mortgage may be registered on real estate, on ships and aircraft as well as on certain other movable things, specifically determined by law. Ships and aircraft are considered - for civil procedural law purposes - as real estate with few exceptions on regulation thereof. The order on interim mortgage also determines the amount secured, which does not necessarily equals the amount of the claim of the main case. The registration and validity of an interim mortgage does not restrict the transfer or further encumbrance of the asset, although an interim mortgage is classified as a legal encumbrance of the asset. If the claimant’s right is awarded by the judgment on the main case, the interim mortgage may be turned into compulsory mortgage, preferred in rank over mortgages that were set later than the time of registration of the interim mortgage.
Registration of mortgages is effected in the competent public Register of mortgages.
- Interim seizure /impoundment, which is ordered on assets, real estate, movable or monetary claims, that belong to the defendant party and are either in the defendant’s or any third party’s possession, in cases that the claim on the right or legal relationship that needs to be secured entails award of payment (either as the main claim or as an ancillary/alternative claim) in favor of the claimant. The order for interim seizure also determines the amount secured, which does not necessarily equals the amount of the claim of the main case. The imposition of interim seizure restricts transfer or further encumbrance of the asset. If the claimant’s right is awarded by the judgment on the main case, the claimant is entitled to initiate execution on the seized asset, as though the claimant had already, by the time of issue of the judgment on the main trial, seized the asset by compulsory enforcement.
As a result, interim seizure gives a serious advantage over the property of the defendant.
- Security bailment/escrow, in cases that there exists dispute over ownership, possession or any related right on the asset, movable or immovable, that needs to be secured and therefore placed in bailment/escrow. Security bailment may also be ordered in cases the applicant urgently needs or is entitled to release an asset to its lawful administrator, but the latter cannot be found or established.
- Interim award of claims, in cases of (i) financial support provided for in family law, tort, will, agreement, (ii) overdue pension payments, (iii) overdue wages, any kind of earnings or expenses as a result of employment, overdue payment of compensation wages for invalid termination of employment or for workplace accident (iv) entitlement to compensation and related expenses, in any case of loss of or deterioration in the ability to work, arising as a result of the applicant’s physical or mental harm, (v) entitlement to compensation, in case the applicant suffers loss of financial support due to the death of the person that had the obligation to support the applicant.
- Interim regulation of relationships and “freezing” orders. The content of the measure/ remedy depends on the particular facts of the case, as the application and the judgment may include any regulation that sets rights and responsibilities temporarily, until the issue of the Court judgment on the main case. Agreements – commercial, employ66 ment or other – family, inheritance, estate issues may be temporarily regulated by this type of interim remedy.
Moreover, in case it is critical that the current, legal and factual situation of a right, an asset and/or a legal relationship, stays unchanged until the issue of the judgment on the main case, the court may issue a “freezing” order, according to which the current state and condition, factual and/or legal, of an asset or a relationship, must not be changed by any act or omission of the defendant or any related third party.
As a result, the field of application for interim regulation of relationships and “freezing” orders is relatively wide, and aims at the forestalling of any, mainly willful, conduct that may seriously cancel the enforcement of the right, if such right is awarded by the Court of the main case.
- Freezing of enforcement, in cases that the applicant is obligated, either by law or Court judgment or order, to pay or perform/omit a specific action, provided that the applicant either has already appealed against the above or appeals at the same time of filing the application for interim non-enforcement. This interim remedy is available to the extent permitted by procedural law regulating judicial remedies and appeals. An important field of this remedy’s application is during the procedure of compulsory execution – either on estate or for specific performance . This remedy is available for whichever party claims a lawful interest on the outcome of the compulsory execution, namely not only for the debtor / liable for performance.
- Barring, registration, public deposit of assets and interim measures of relevant content, in cases that the claim of the main case requires the securitization of a tangible asset and the preservation of the current factual situation which is critical for the substance and value of the right or the legal relationship that are the content of the claim.
- European Account Preservation Order (hereinafter as “EAP Order”), a mechanism for securing cross-border debt recovery in civil and commercial matters, in accordance with EU Regulation 655/2014.
The applicant – creditor may issue an EAP Order, without any court hearing and without service of its application to the opponent – debtor. As a result, there exists no room for delay in the issue of the EAP Order (on grounds relevant to the opponent), nor for any deviation from the aim of the applicant to “freeze”, wholly or partially, one or more bank accounts of the opponent; the debtor will take knowledge of the EAP Order and its enforcement after such enforcement, within three (3) working days following receipt – by the creditor – of the declaration of the bank responsible for enforcing the EAP Order (i.e. the bank in which the debtor’s bank account/accounts are found to be held) regarding preservation of funds.
Because of the fact that this type of provisional measures is of a cross-border character, attention should be drawn to enforcement of the EAP Order, which is governed by the law of the state of enforcement.
The main principles for issue and enforcement of the EAP Order have been stated in the Code of Civil Procedure as follows:
- The Court with which the Application is lodged must establish that international jurisdiction to rule on the substance of the matter lies with the Courts of this same member state; international jurisdiction is satisfied in case there already exists a judgment, Court settlement or authentic (public) instrument, issued by the competent authorities of this, same, member state. Consumer debts justify, for the purposes of the issue of EAP Order, international jurisdiction of the Courts of the consumer’s state of residence.
- The cross-border nature of the case, for which the EAP Order is sought, requires that, either the bank account, on which a “freezing” EAP Order is sought, is kept “abroad”, namely in a bank established or operating branches in a member state different from the Greece, or the creditor is domiciled “abroad”, namely the creditor is not domiciled in Greece, while the bank account is kept in a bank established or operating in Greece.
- In case there does not exist any judgment, Court settlement or authentic (public) instrument, the Court has got to be adequately satisfied – but not necessarily be made certain (“not make a judicial diagnosis”) – that the creditor is likely to succeed on the substance of its claim against the debtor. To this end, the creditor is required to submit its arguments and evidence regarding the merits of the case.
- The Court has got to be satisfied that there exists a real risk that, without the EAP Order, the enforcement of the existing judgment, Court settlement or authentic (public) instrument or of a future judgment may be impeded or made substantially more difficult, because it is proven to be likely that, by the time the creditor is able to have the enforceable instrument or judgment enforced, the debtor may have dissipated, concealed or destroyed its assets or have disposed of them under value, to an unusual extent or through unusual action. It should be mentioned that a mere denial or delay of the debtor to pay its debt, as claimed by the creditor, does not justify the requirement of real risk as afore described.
- The applicant – creditor has got to provide satisfying explanations to the Court as to the reason that it believes that the debtor holds a bank account in a specific member state, for the banks of which the applicant – creditor seeks the issue of the EAP Order.
- In case the Court is satisfied that the EAP Order should be issued, the Court first issues an order either to the central regulating banks’ authority of the member state in which the bank account of the debtor is kept, or to the identified bank itself, for the purpose of forwarding information to the Court as to the debtor’s bank account identity numbers. In its EAP Order, the Court states the bank to which the EAP Order is addressed and in which the debtor, further to disclosure, has been found to hold a bank account.
- In case main proceedings have not been initiated at the time of lodgment of the application, the applicant is obliged to initiate such proceedings within thirty (30) days from service of the EAP Order to the bank, otherwise the provisional preservation (“freezing”) of funds in the debtor’s bank account is ipso iure (automatically) invalidated. Nonetheless, the creditor may have, by the completion of the above time limit, enforced an enforceable judgment or other enforceable instrument, such as a Court order for payment on this same asset (bank account funds).
- The EAP Order, unlike other types of judgments and injunctions on provisional measures, may be appealed. Appeal may lead either to the revocation (invalidation) or the modification of the EAP Order. The creditor may also appeal against the rejection of its application for issue of an EAP Order.
- The bank, to which the EAP Order is addressed, is obliged to proceed, on receipt / service thereof, to the preservation of the funds ordered and to submit to the competent central judicial authority of the member state in which the bank is located, within eight (8) working days at the latest, a declaration of preservation of funds or, alternatively, a declaration stating the reason due to which the bank has been incapable to preserve such funds. It should be mentioned, in this context, that any statutory provisions of the member state of enforcement, namely of the member state in which the bank is located, that exclude certain kind of funds and / or certain amounts from enforcement, still apply and supersede any EAP Order. These statutory provisions also entail the notion of public order that may, in certain cases, forbid enforcement.
Proof and evidence in interim remedies and precautionary measures
The court issues the judgment on interim remedies / precautionary measures based on consideration of probability on the legal and substantive validity of the allegations and evidence submitted by the parties; the court does not reach, therefore, the stage of commitment on the critical factual background of main case, nor, consequently, on the critical legal background that should be applied in the main case. Due to this reason, and in order that speed on the procedure of interim remedies / precautionary measures is achieved, the parties have to submit all available evidence and allegations at the time of the hearing of the application. Moreover, the court may accept to take into consideration evidence that do not fulfill the conditions for evidence admissibility as set out by procedural law (Civil Procedural Code).
Time limit for lodgment of the main claim/main case
The obligation for lodgment of the main case, if the application on interim remedy / precautionary measures is upheld by the Court and if the main case has not been lodged with the competent Court by the time of the issue of the Court judgment on interim measures, is generally set, at the court’s discretion, in the Court judgment that orders the interim / precautionary measure. The time limit may not be less that thirty (30) days from issue of the judgment on interim remedies/ precautionary measures.
In interim remedies classified as “freezing of compulsory enforcement”, the main case – mainly an appeal or a complaint on compulsory enforcement – has to be lodged, at the latest, at the same time of filing the application for freezing of enforcement.
Moreover, in precautionary measures consisting in interim award of claims, the applicant has to lodge its main case within sixty (60) days from service of the judgment ordering the precautionary measures.
Does there exist any right of appeal against judgments on interim remedies / precautionary measures?
Judgments on interim remedies / precautionary measures may not be appealed. Either party or any third party, though, may apply for the amendment or the termination of the judgment ordering interim remedy / precautionary measures, if any new circumstances arise after the hearing of the initial application.
